State Responsibility for Torture and Ill-Treatment by Private Actors: The Due Diligence Standard
Introduction
Torture is usually understood in connection with State officials, especially police officers, prison officials or other public authorities. But serious ill-treatment can also be committed by private individuals or non-State actors. This raises an important question: if the person who committed the act was not a State official, can the State still be responsible?
The answer is not always yes or no. A private person’s conduct is not automatically treated as an act of the State. At the same time, the State has its own duty to protect people from serious violations of their rights. If the authorities knew, or should reasonably have known, about a serious and foreseeable risk and failed to take reasonable steps, the State may be responsible for failing to fulfil its own international obligations.
This is where the due diligence standard becomes important. It looks at what the State did, or failed to do, before and after the violation.
Meaning and Definition of Torture
The term torture is defined under Article 1 of the United Nations Convention Against Torture (UNCAT). It refers to the intentional infliction of severe physical or mental pain or suffering for purposes such as obtaining information or a confession, punishment, intimidation, coercion or discrimination. The definition also requires the involvement of a public official or another person acting in an official capacity.¹
Torture therefore involves:
- Severe pain or suffering — which may be physical or mental.
- Intentional conduct — the suffering must be deliberately inflicted.
- A specific purpose — such as obtaining information, punishment, intimidation, coercion or discrimination.
- Official involvement — the act must involve a public official or a person acting in an official capacity.²
The last point is important for this article. Not every serious act committed by a private person will legally amount to “torture” under Article 1 of CAT. A purely private act may instead fall within the broader category of cruel, inhuman or degrading treatment or other serious ill-treatment, depending on the circumstances. Article 16 of CAT is relevant to ill-treatment that does not meet the definition of torture in Article 1.³
However, this does not mean that the State has no responsibility when serious ill-treatment is committed by a private actor. The Committee Against Torture has explained that where State authorities know, or have reasonable grounds to believe, that torture or ill-treatment is being committed by private actors, the State may be responsible if it fails to exercise due diligence to prevent, investigate, prosecute and punish such acts.⁴
Who are Private Actors?
Private actors are individuals or groups that are not acting as government officials or State authorities but can still harm or violate another person’s rights.
They may include:
- private individuals;
- family members in cases of domestic violence;
- private security personnel or companies;
- employers or companies;
- criminal groups or gangs; and
- organised non-State armed groups in situations of armed conflict.
The legal position is not exactly the same for all of these actors. For example, an organised armed group involved in an armed conflict is governed by the applicable rules of international humanitarian law. Therefore, the context in which the conduct takes place is important.
Private Actors and State Responsibility
When a private person commits serious ill-treatment, two different legal questions can arise.
The first is whether the conduct of that private person can be attributed to the State. The second is whether the State itself breached an international obligation, for example by failing to protect a person from a serious and foreseeable risk.
These two questions should not be confused.
Under the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, an internationally wrongful act requires conduct attributable to the State and a breach of an international obligation.⁵ Private conduct is generally not attributable to the State simply because the State failed to prevent it. However, there can be situations where the conduct of a private person or group is attributable to the State, including where they act on the instructions of, or under the direction or control of, the State.⁶
But even where the private person’s conduct is not attributable to the State, the State can still have its own responsibility.
For example, if authorities knew about a serious threat to a person and failed to take reasonable steps to protect them, the issue may be the State’s failure to fulfil its own positive obligation.
This is one of the most important points in this article: State responsibility for a failure to exercise due diligence is not the same thing as attributing the private person’s conduct to the State.
The Due Diligence Standard
In simple terms, the due diligence standard asks whether the State took reasonable steps in the circumstances to prevent and respond to a serious violation.
It does not mean that a State has to prevent every possible act committed by a private person. States cannot control everything that happens between private individuals. What matters is whether the authorities knew, or should reasonably have known, about a serious and foreseeable risk and whether they responded reasonably to that risk.
The State’s responsibility can arise at different stages.
1. Duty to Prevent
The State should have laws and institutions that protect people from serious violations. This includes laws against violence and mechanisms through which people can report abuse and seek protection.
Prevention becomes especially important where the authorities already know about a serious risk. If a person has repeatedly complained about threats or violence, for example, those complaints cannot simply be ignored.
2. Duty to Protect
Where the authorities know, or should reasonably know, that a person faces a serious and foreseeable risk, they may be required to take reasonable protective measures.
This does not mean that authorities have to guarantee that no harm will ever occur. The question is whether the measures taken were reasonable in the circumstances and whether the authorities responded to the information available to them.
3. Duty to Investigate
When there are reasonable grounds to believe that serious ill-treatment has occurred, the State must properly investigate the allegation. Article 12 of CAT requires a prompt and impartial investigation where there are reasonable grounds to believe that torture has been committed.⁷
The investigation should be capable of establishing what happened and identifying those responsible. A failure to investigate properly can itself raise a separate issue of State responsibility.
4. Duty to Take Appropriate Accountability Measures
Where an investigation provides sufficient evidence of a criminal offence, the authorities should take appropriate steps towards prosecution and accountability, in accordance with domestic and international law.
This does not mean that every allegation must automatically result in a conviction. Criminal proceedings must still follow the law and respect the fair-trial rights of the accused. The important point is that the private status of the perpetrator should not by itself become a reason for authorities to ignore serious criminal conduct.
5. Duty to Provide an Effective Remedy
The State must also provide access to an effective remedy where rights have been violated. Depending on the circumstances, this may include compensation, rehabilitation, restitution or other forms of reparation. Article 14 of CAT and the Committee Against Torture’s General Comment No 3 are relevant to this duty.⁸
Therefore, due diligence is not limited to what happens before a violation. The State’s response after the violation also matters.
What Happens When the State Fails to Act?
If a State fails to take reasonable measures, this does not automatically mean that the State legally committed the private person’s act.
Instead, the State may be responsible for failing to fulfil its own international obligation. The exact legal consequence depends on the applicable treaty, the facts of the case and the relevant international body. It may result in a finding that the State violated its obligations and may require an effective remedy or reparation.
This is why the distinction between attribution and breach of an independent State obligation matters so much in cases involving private actors.
International Case Law
1. Velásquez Rodríguez v Honduras
Velásquez Rodríguez v Honduras is one of the important cases for understanding the due diligence standard in international human rights law. The case concerned the disappearance of Ángel Manfredo Velásquez Rodríguez and the failure of the Honduran authorities to properly investigate what had happened.⁹
The Inter-American Court of Human Rights explained that States have duties not only to respect rights themselves but also to take reasonable steps to prevent violations, investigate them, identify those responsible and provide reparation where required.¹⁰
The case was not specifically about torture committed by a private actor. However, it is important because it explains the basic idea behind due diligence. Having laws on paper is not enough if the authorities fail to take reasonable steps to make those rights effective in practice.¹¹
2. A v United Kingdom
A v United Kingdom is more directly relevant to violence by private persons. The case concerned a nine-year-old child who was seriously ill-treated by his stepfather. The European Court of Human Rights considered whether the United Kingdom had fulfilled its obligation under Article 3 of the European Convention on Human Rights.¹²
The Court found that the treatment fell within Article 3 and recognised that States have a positive obligation to protect individuals from serious ill-treatment, including ill-treatment caused by private persons.¹³
The case is important because it shows that the State’s responsibility under human rights law is not limited to situations where a government official is the direct perpetrator.
3. Z and Others v United Kingdom
Z and Others v United Kingdom involved four children who suffered serious neglect and abuse. The authorities were aware of concerns about their situation but failed to take adequate steps to protect them.¹⁴
The European Court of Human Rights found a violation of Article 3. The case shows that State responsibility can arise from inaction where authorities knew, or should have known, about serious harm and failed to take reasonable measures.¹⁵
This case is useful because it shows that due diligence is not only about what the State does. It can also be about what the State fails to do when it has a responsibility to act.
4. Opuz v Turkey
Opuz v Turkey is particularly important in the context of domestic violence. The case concerned repeated violence against the applicant and her mother and the response of the Turkish authorities. The European Court of Human Rights examined whether the authorities had done enough to protect them and respond to the violence.¹⁶
The Court found violations of Articles 2 and 3 and also found a violation of Article 14 in connection with the authorities’ response to domestic violence.¹⁷
The case is important for the due diligence standard because it shows that repeated complaints and information available to authorities can matter when deciding whether the State took sufficient steps to protect a person from a serious and foreseeable risk.
State Obligations under International Human Rights Law
The due diligence obligation can be seen in different international human rights instruments.
1. Convention Against Torture
The Convention Against Torture is the main international treaty dealing specifically with torture.
Article 2 requires States Parties to take effective legislative, administrative, judicial and other measures to prevent torture.¹⁸ Article 12 requires a prompt and impartial investigation where there are reasonable grounds to believe that an act of torture has been committed. Article 13 provides a right to complain and requires protection of complainants and witnesses from intimidation or ill-treatment.¹⁹
Article 14 provides for an enforceable right to fair and adequate compensation and the means for rehabilitation.²⁰
CAT therefore shows that the State’s responsibilities do not end with prevention. Investigation and redress are also important.
At the same time, Article 1 and Article 16 should not be treated as exactly the same. Article 1 contains the specific definition of torture, including official involvement, while Article 16 deals with other acts of cruel, inhuman or degrading treatment that do not amount to torture under Article 1. This distinction becomes particularly important where the original perpetrator is a private person.
The Committee Against Torture has nevertheless made clear that States can have responsibility where their authorities know, or have reasonable grounds to believe, that torture or ill-treatment is being committed by non-State actors and fail to exercise due diligence.²¹
2. International Covenant on Civil and Political Rights
Article 7 of the ICCPR protects everyone from torture and cruel, inhuman or degrading treatment or punishment.²²
The Human Rights Committee has explained that States must take appropriate measures to protect individuals against acts prohibited by Article 7, including acts committed by persons acting in an official or private capacity.²³
This supports the idea that the State’s responsibility is not limited to preventing its own officials from committing prohibited treatment. It also includes taking appropriate measures to protect individuals from such treatment by others.
3. European Convention on Human Rights
Article 3 of the ECHR prohibits torture and inhuman or degrading treatment or punishment.²⁴
The European Court of Human Rights has recognised positive obligations under Article 3. The cases of A v United Kingdom, Z and Others v United Kingdom and Opuz v Turkey show how these obligations can apply where serious harm is caused by private persons.²⁵
The exact steps required from the State depend on the circumstances. The Court does not treat every private act of violence as automatically creating State responsibility. Instead, it examines whether the authorities fulfilled their positive obligations in the particular circumstances.
Due Diligence in International Humanitarian Law
International Humanitarian Law (IHL) applies during armed conflicts and regulates the treatment of persons who are not, or are no longer, taking part in hostilities.
This is relevant because serious ill-treatment can also occur during armed conflict, including through the conduct of organised non-State armed groups.
Common Article 3 of the Geneva Conventions provides important protections in non-international armed conflicts. It prohibits, among other things, violence to life and person, cruel treatment and torture, and outrages upon personal dignity.²⁶
Organised non-State armed groups that are parties to a non-international armed conflict are also bound by the applicable rules of IHL.²⁷ This does not mean that such groups should simply be treated in the same way as ordinary private individuals. Their conduct has to be considered within the rules applicable to the armed conflict.
Common Article 1 of the Geneva Conventions requires States to respect and ensure respect for the Conventions in all circumstances.²⁸ This creates an obligation for States to take steps to prevent and respond to violations of IHL, although what can reasonably be expected from a State will depend on the circumstances.
The Prosecutor v Tadić decision is important for understanding the application and classification of IHL in non-international armed conflicts.²⁹ It should not, however, be treated as a general human rights due diligence test. The obligations under IHL depend on the particular rules and circumstances of the conflict.
International Criminal Law
International criminal law mainly deals with the criminal responsibility of individuals. This is different from State responsibility.
The same situation can therefore raise two separate questions: whether the individual who committed the act can be held criminally responsible, and whether the State failed to fulfil its own international obligations.
Under the Rome Statute, torture can form part of a crime against humanity when the requirements of Article 7 are satisfied. Article 7(1)(f) includes torture as a crime against humanity when the required contextual and other legal elements are present.³⁰
Torture and cruel treatment can also amount to war crimes under Article 8 where the applicable conflict and other legal elements are satisfied.³¹
The International Criminal Court deals with individual criminal responsibility. It does not replace the separate rules governing State responsibility. Therefore, the prosecution of an individual and a finding of State responsibility are two different legal questions.
Critical Analysis
The due diligence standard is useful because it prevents a situation where the State can simply say, “the perpetrator was a private person, so this has nothing to do with us.” At the same time, the standard does not mean that the State can be blamed for every harmful act committed by one private person against another.
The real difficulty is deciding what the State could reasonably have done in the circumstances.
For example, if authorities had received repeated complaints, knew about previous violence, or had other information showing that a person was at serious risk, it becomes more difficult to justify complete inaction. On the other hand, where there was no clear information about a possible risk, it may be much harder to say that the State failed to take reasonable preventive measures.
This is why knowledge and foreseeability are important parts of the due diligence analysis. The authorities cannot be expected to respond to information they could not reasonably have known. But once a serious risk becomes known, simply having laws and institutions on paper may not be enough.
Another important point is that prevention and investigation are separate duties. A State may take reasonable steps to prevent harm but still fail to investigate the violation properly afterwards. Similarly, a State may investigate an incident but may still have failed earlier to respond to a known and serious risk.
Therefore, due diligence should be looked at as a whole. The relevant questions are: What did the authorities know? What could they reasonably have known? What could they reasonably have done? What did they actually do? And how did they respond after the violation?
In my view, this is what makes the due diligence standard important in cases involving private actors. It does not make the State automatically responsible for another person’s actions. Instead, it makes the State answerable for its own failure to act when international law required it to do so.
Conclusion
Torture and serious ill-treatment are not only issues of direct State action. Serious violations can also be committed by private individuals and non-State actors.
However, the fact that a private person committed the act does not automatically make the State responsible, and it does not automatically remove State responsibility either. The important question is whether the conduct is attributable to the State or, separately, whether the State failed to fulfil its own international obligations.
The due diligence standard helps answer this second question. It looks at whether the State took reasonable steps to prevent serious and foreseeable harm, protect individuals, investigate violations, take appropriate accountability measures and provide effective remedies.
International human rights law, international humanitarian law and international criminal law approach the issue differently. Human rights law focuses on the State’s obligations to protect individuals; IHL regulates conduct during armed conflict; and international criminal law focuses on the individual responsibility of persons who commit international crimes.
Ultimately, the question is not only “Who committed the act?” but also “What did the State do, or fail to do, before and after it happened?” That is where the due diligence standard becomes important.
Footnotes
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 1.
- ibid.
- ibid arts 1, 16.
- UN Committee Against Torture, ‘General Comment No 2: Implementation of Article 2 by States Parties’ (24 January 2008) UN Doc CAT/C/GC/2, para 18.
- International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001), art 2.
- ibid art 8.
- Convention Against Torture (n 1) art 12.
- ibid art 14; UN Committee Against Torture, ‘General Comment No 3: Implementation of Article 14 by States Parties’ (13 December 2012) UN Doc CAT/C/GC/3.
- Velásquez Rodríguez v Honduras (Merits) Inter-American Court of Human Rights Series C No 4 (29 July 1988).
- ibid.
- ibid.
- A v United Kingdom (1998) 27 EHRR 611 (ECtHR).
- ibid.
- Z and Others v United Kingdom (2001) 34 EHRR 3 (ECtHR).
- ibid.
- Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009).
- ibid.
- Convention Against Torture (n 1) art 2.
- ibid arts 12, 13.
- ibid art 14.
- UN Committee Against Torture, General Comment No 2 (n 4), para 18.
- International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 7.
- UN Human Rights Committee, ‘General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)’ (10 March 1992) UN Doc HRI/GEN/1/Rev.9 (Vol I), para 2.
- Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221, art 3.
- A v United Kingdom (n 12); Z and Others v United Kingdom (n 14); Opuz v Turkey (n 16).
- Geneva Conventions of 1949, common art 3.
- ibid.
- Geneva Conventions of 1949, common art 1.
- Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (ICTY, 2 October 1995).
- Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 7(1)(f).
- ibid art 8.
Bibliography
Primary Sources
International Conventions and Treaties
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.
Geneva Conventions of 1949.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.
International Materials
International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001).
UN Committee Against Torture, ‘General Comment No 2: Implementation of Article 2 by States Parties’ (24 January 2008) UN Doc CAT/C/GC/2.
UN Committee Against Torture, ‘General Comment No 3: Implementation of Article 14 by States Parties’ (13 December 2012) UN Doc CAT/C/GC/3.
UN Human Rights Committee, ‘General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)’ (10 March 1992) UN Doc HRI/GEN/1/Rev.9 (Vol I).
ICRC, Commentaries on the Geneva Conventions and materials on respect for international humanitarian law.
ICC, Elements of Crimes.
Cases
A v United Kingdom (1998) 27 EHRR 611 (ECtHR).
Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009).
Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (ICTY, 2 October 1995).
Velásquez Rodríguez v Honduras (Merits) Inter-American Court of Human Rights Series C No 4 (29 July 1988).
Z and Others v United Kingdom (2001) 34 EHRR 3 (ECtHR).
Secondary Sources
Cassese A, International Criminal Law (2nd edn, OUP 2008).
Nowak M and McArthur E, The United Nations Convention Against Torture: A Commentary (OUP 2008).
Rodley N and Pollard M, The Treatment of Prisoners under International Law (3rd edn, OUP 2009).
Author: Varonica Chaturvedi
Legal writer and researcher