On 13 November 2019, the UK Supreme Court ruled 4-1, in the case of R v TRA  UKSC 51, that members of non-State groups may be prosecuted in the UK for crimes of torture under international law. The case makes it easier for countries to punish persons responsible for torture.
TRA was involved in the first Liberian civil war where the National Patriotic Front of Liberia (NPFL), an armed group led by Charles Taylor, attempted to takeover Liberia by deposing the then President, Samuel Doe. TRA was arrested in the UK in June 2017 and charged with one count of conspiracy to commit torture and seven counts of torture contrary to section 134 of the Criminal Justice Act 1988 (CJA 1988), which states:
“A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.” (p2)
Before the matter proceeded to a full trial at the Central Criminal Court, TRA made an application to dismiss the charges under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 asking for the clarification as to the correct legal test of ‘official capacity’ under CJA 1988, s134. The prosecution argued that at the relevant time and place, the NPFL was the de facto government authority with an effective control of the area where the alleged offences took place and that Charles Taylor and his subordinates were acting in an official capacity for the NPFL (p3).
In July 2018, the Judge concluded that CJA 1988, s 134 “applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non-private capacity and as part of an authority-wielding entity”. He also dismissed a subsequent application for ‘no case to answer’ on the grounds that “while the questions whether the appellant was acting in a non-official capacity on behalf of the NPFL and whether the NPFL was an authority-wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude” (p4).
TRA appealed the ruling and the Court of Appeal dismissed the appeal in December 2018. TRA expressed his intention to appeal to the UK Supreme Court and the Court of Appeal certified the following question of law of public importance:
“What is the correct interpretation of the term ‘person acting in an official capacity’ in section 134(1) of the Criminal Justice Act 1988; in particular does it include someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs?” (p2)
On appeal before the UK Supreme Court, the Court held that CJA 1988, s134 must be examined in light of the UN Convention against Torture 1984 (CAT 1984) which it implemented and also that a distinction must be made between torture under CAT 1984, which required the involvement of at least one person in an official capacity, and torture under international humanitarian law and international criminal law, where there was no such requirement (Prosecutor v Kunarac, IT-96-23 & 23/1) (pp18-20).
Article 1 of CAT 1984 provides that:
“1. For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
The UK Supreme Court directed itself to interpret CJA 1988, s134 through interpreting Article 1 of CAT 1984 in accordance with the rules of interpretation of international treaties prescribed by Article 31 of the Vienna Convention on the Law of Treaties 1969:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (p9)
Accordingly, the UK Supreme Court considered the meaning of Article 1 of CAT 1984 under three different approaches. In regards to the ordinary meaning of the words of Article 1 of CAT 1984, the Court found that:
“Those words are apt to describe a person performing official administrative or governmental functions but provide no suggestion that those functions must be performed on behalf of the government of the State concerned. The dichotomy drawn by the provisions is between official conduct and purely private conduct, not between State and nonState activity. While in most normal circumstances, such as those prevailing in the United Kingdom to which the appellant refers, official conduct will usually be performed on behalf of a State, it is necessary to consider the applicability of the Convention in less stable situations, including those where more than one body may be performing administrative or governmental functions within the territory of the State. Unhappily, examples of such situations arise not infrequently. In my view the words used do not support a limitation of the kind proposed. On the contrary, the words “person acting in an official capacity” are apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control” (p11)
Then the UK Supreme Court moved to consider the meaning of Article 1 of CAT 1984 in light of the object and purpose of CAT 1984. The Court found that the object of CAT 1984 :
“has been to make torture as defined in article 1 a criminal offence of universal jurisdiction enforceable by domestic courts and, by virtue of very extensive State participation in the Convention, to establish a machinery capable of reducing the likelihood of perpetrators of “official torture” escaping justice before national courts” (p13)
At that point, the UK Supreme Court engaged in a deep analysis of travaux preparatoires, finding, however, that they were inconclusive as to the intended meaning of Article 1 of CAT 1984 in terms of its application to members of non-State groups (pp13-19).
Next, the UK Supreme Court considered how the scope of Article 1 of CAT 1984 was understood in practice, among others, in a series of decisions of the Committee against Torture, which oversees the implementation of the convention. In the decisions in SV v. Canada, CAT/C/26/D/49/1996, GRB v Sweden, CAT/C/20/D/083/1997 and MPS v. Australia, CAT/C/28/D/138/1999, the Committee against Torture ruled that CAT 1984 did not apply to torture perpetrated by persons without any association with the State governments. On the other hand, in Sadiq Shek Elmi v Australia, CAT/C/22/D/120/1998 (concerning Somalia), the Committee against Torture came to the opposite conclusion (p24).
Nevertheless, in HMHI v. Australia, CAT/C/28/D/177/2001 (also concerning Somalia), Sadiq Shek Elmi v Australia, CAT/C/22/D/120/1998 was distinguished on the grounds that “in the exceptional circumstance of State authority that was wholly lacking, acts by groups exercising quasi-governmental authority could fall within the definition of article 1” while “…with three years elapsing since the Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central government, though some doubts may exist as to the reach of its territorial authority and its permanence.” A couple of years later, in SS v. The Netherlands, CAT/C/30/D/191/2001, the Committee against Torture recognised the applicability of Article 1 of CAT 1984 to actions of non-State groups in Sri Lanka where “the non-governmental entity occupies and exercises quasi-governmental authority over the territory” (p25).
Ultimately, the UK Supreme Court held that “despite its manifest inconsistencies, therefore, this line of authority does provide some support for the view that the conduct of non-State actors exercising de facto authority over territory which they occupy can fall within” Article 1 of CAT 1984 (p26),
At this point, the UK Supreme Court turned to domestic case law. It considered the judgment in R v Zardad, Case No T2203 7676 (2004) concerning Afghanistan between 1992 and 1996 when the Hezb-I-Islami faction was in control of Laghman Province. In this case, Zardad, who had been a chief commander of Hezb-IIslami and the military controller of the area of Sarobi at the material time, was charged with conspiracy to commit torture contrary to CJA 1988, s134. As part of his defence, he maintained that he had not been a public official as his group was not a part of a government but the Judge rejected this argument (pp30-31).
Ultimately, the UK Supreme Court ruled that:
“the words of those provisions in their ordinary meaning support this reading. They are sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. In particular, I can see no justification for imposing the limitation on those words for which the appellant contends, which would require the conduct to be on behalf of the government of the State concerned. On the contrary, the words in their ordinary meaning are apt to include conduct on behalf of a de facto authority which seeks to overthrow the government of the State. This reading also conforms with the object and purpose of the provisions. Here I attach particular significance to the purpose of the Convention in seeking to establish a regime for the international regulation of “official” torture as opposed to private acts of individuals. Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme. In addition, some support for this conclusion can be found in the decisions of the CAT under article 22(7), UNCAT and it is favoured by the preponderant weight of academic comment” (p38)
Lord Reed dissented. He argued that the ordinary meaning of the words used in Article 1 of CAT 1984 excluded “a member of an insurgent group engaged in armed insurrection against the government of the country.” Furthermore, he claimed that the context of Article 1 of CAT 1984 dictated that it was “concerned with conduct for which the state bears responsibility.” Lord Reed invoked Article 2 of CAT 1984 arguing that:
“If torture carried out by insurgents in territory under their de facto control falls within the scope of UNCAT, it follows that article 2(1) imposes an obligation on states with which they cannot comply: they cannot take “effective” measures in relation to territory which they do not control. UNCAT cannot sensibly be interpreted in a way which would have the effect of imposing an obligation on states with which they cannot comply: lex non cogit ad impossibilia. That strongly suggests that article 2(1) cannot have been intended to apply in those circumstances, which in turn implies that the definition of torture in article 1 cannot have been intended to apply to torture committed by insurgent forces, without the consent or acquiescence of the state in question” (pp41-42)
Lord Reed also referred to academic opinions, other jurisdictions as well as the case law of the Committee Against Torture, arguing that, despite what the Majority claimed, it supported the argument that CAT 1984 was never meant to apply to members of non-State groups (pp42-49).
The ruling of the UK Supreme Court in R v TRA  UKSC 51 was only the third case brought under CJA 1988, s134. The judgment, however, is important because it makes it clear that members of a non-State group could be prosecuted for the crime of torture under Article 1 of CAT 1984 (as applicable in the UK by virtue of CJA 1988, s134) wherever they act in an ‘official capacity’. This, undoubtedly, makes it easier for countries to punish torturers. However, ultimately, whether a person is to be considered to have acted in an ‘official capacity’ is for the jury to decide in each case based on available evidence.