constituted torture. Accordingly, it held that the rapes “surely constitute infliction of
severe pain and suffering perpetrated for a number of impermissible purposes, including
interrogation, punishment, retaliation and discrimination based on gender” and therefore
considered that “sexual abuse by the police in this case constitutes torture”. 192 Two, it
debunked the notion that torture has to occur in official places of detention, ruling that
‘the complainant was clearly under the physical control of the police even though the acts
concerned were perpetrated outside formal detention facilities…”.’193
5.3.3 Limitations and Opportunities
One of the major limitations of UNCAT to address women’s experience of sexual violence is
the restriction in the definition of torture in Article 1. The definition explicitly states that
the pain or suffering must have been inflicted or instigated by or with the consent or
acquiescence of a public official or by person(s) acting in official capacity. Women’s
experience of violence is often at the hands of non-State actors and feminists have
criticised this emphasis on violence by public official as excluding women from the highest
protection afforded in international law. 194
CAT’s previous case law on the issue shows a rather narrow or a literal approach to the
interpretation and application of the public official requirement. In G.R.B v. Sweden,195
the applicant had been raped by members of the non-State group Shining Path and claimed
fear of violence or reprisal. The CAT held that if a person claims risks of violence by a nongovernmental entity that is not acting with the consent or acquiescence of the government,
it does not attract the protection of Article 3 of the UNCAT. The decision has been
criticised for not adequately addressing the issue of acquiescence. The CAT did not, in this
case, ascertain if the rapes by the non-governmental entity were the result of State
inaction to reports of rapes generally and by Shining Path in particular. 196
Similarly, in S.V. et. al. v. Canada197 in which the complainant feared violence from LTTE
upon return to Sri Lanka, the CAT held that the government of Sri Lanka did not support the
actions of LTTE and therefore did not consent or acquiesce to LTTE’s actions. The fact that
LTTE had a quasi-governmental status with complete control over a particular territorial
area and therefore could be characterised as “other persons acting in official capacity” was
completely missed. In another case of Elmi v. Australia,198 Somali warring factions were
indeed characterised as acting in an official capacity because of their effective control of
the State and lack of central government. Lack of central government is the norm rather
than an exception in States facing armed opposition and such a criteria to establish the
official capacity of non-State actors makes applying international human rights laws to
situations of internal armed conflicts or States confronting armed opposition extremely
difficult.
The existing jurisprudence of the CAT therefore “does not protect women against brutal
rapes or mass killings by rebel soldiers, for example, except where it can be said that the
soldiers were in effective control of the territory and there was no central government”.199
192
Ibid., ¶ 8.10.
193
Ibid.
194
Katherine Fortin, Rape as Torture – An evaluation of the Committee against Torture’s attitude to sexual
violence, Utrecht Law review, Vol4, Issue 3, December 2008, pp.145.
195
G.R.B. v. Sweden, CAT Comm. No. 83/1997 (15 May 1998).
196
McCorquodale R. and R. La Forgia, ‘Taking Off the Blindfolds: Torture by Non-State Actors’ (2001) 1 Hum. Rts L.
Rev. 189, pps. 209-210.
197
S.V. et. Al. v. Canada, CAT Comm. No. 49/1996 15 May 2001.
198
Elmi v. Australia, CAT Comm. No. 120/1998 14 May 1999.
199
Supra note 1 at pp.249.
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