6.Such person or persons were in the custody or under the control of the perpetrator.

6.1.In the custody of the perpetrator; OR.

6.2.Under the control of the perpetrator.

6.3.Not required: Involvement of a state official or other person acting in an official capacity.

6. Such person or persons were in the custody or under the control of the perpetrator.

In Krnojelac, the Trial Chamber held that:

"Torture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose. Thus, in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunal's Statute.

[...]

"[T]he Trial Chamber must apply customary international humanitarian law as it finds it to have been at the time when the crimes charged were alleged to have been committed"[1]

The Delalić Trial Chamber noted that:

"The use of the words "for such purposes" in the customary definition of torture, indicate that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative."[2]

In Furundžija, the Trial Chamber observed that:

"[W]hether in time of peace or of armed conflict, it is appropriate to identify or spell out some specific elements that pertain to torture as considered from the specific viewpoint of international criminal law relating to armed conflicts."[3]

ICTR

In Semanza the Trial Chamber found that:

"[T]he intentional infliction of severe physical or mental pain or suffering for prohibited purposes including: obtaining information or a confession; punishing, intimidating or coercing the victim or a third person; or discriminating against the victim or a third person. There is no requirement that the conduct be perpetrated solely for one of the prohibited aims."[4]

6.1.I n the custody of the perpetrator; OR.

6.2. Under the control of the perpetrator.

6.3. Not required: Involvement of a state official or other person acting in an official capacity.

The Furundžija Trial Chamber held that:

"[A]t least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity."[5]

The Kunarac Trial Chamber stated that:

"[T]he role and position of the State as an actor is completely different in both regimes. Human rights law is essentially born out of the abuses of the State over its citizens and out of the need to protect the latter from State-organised or State-sponsored violence. Humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities.

In the human rights context, the State is the ultimate guarantor of the rights protected and has both duties and a responsibility for the observance of those rights. In the event that the State violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements.

In the field of international humanitarian law, and in particular in the context of international prosecutions, the role of the State is, when it comes to accountability, peripheral. Individual criminal responsibility for violation of international humanitarian law does not depend on the participation of the State and, conversely, its participation in the commission of the offence is no defence to the perpetrator. Moreover, international humanitarian law purports to apply equally to and expressly bind all parties to the armed conflict whereas, in contrast, human rights law generally applies to only one party, namely the State involved, and its agents.

[...]

"[T]he presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law."[6]

The Kvočka Trial Chamber noted that:

"[T]he state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law."[7]

According to the Appeals Chamber in Kunarac:

"[T]he Torture Convention was addressed to States and sought to regulate their conduct, and it is only for that purpose and to that extent that the Torture Convention deals with the acts of individuals acting in an official capacity.

"[T]he definition of torture in the Torture Convention reflects customary international law as far as the obligation of States is concerned, must be distinguished from an assertion that this definition wholly reflects customary international law regarding the meaning of the crime of torture generally."[8]

In Delalić, the Trial Chamber observed that:

"[A]n act of torture must be committed by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity. In the context of international humanitarian law, this requirement must be interpreted to include officials of non- State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities."[9]

ICTR

According to the Trial Chamber in Akayesu:

"The perpetrator was himself an official, or acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity."[10]