Part I: Prohibition of torture: The legal background This definition is considered to be limited in some respects. It confines torture to acts committed by, or in some way involving, agents of the State. Article 1 of the Convention against Torture says the act must occur “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”35 With its focus on acts involving public officials, the Convention has been criticised for reproducing a public/private dichotomy, which privileges the male experience, as it is men who predominantly need protection from excessive state power.36 It was feared that this definition would fail to address the forms of systematic gender-based violence and harm that women are subjected to, often in the private sphere. However, through the Committee against Torture’s guidance and jurisprudence, it has been firmly established that the Convention’s definition of torture encompasses acts committed by nonstate actors in private spaces. In its General comment 2, the Committee explains that states bear responsibility for torture and ill-treatment committed by private individuals, where they fail in their due diligence obligation to stop, sanction and provide remedies for such acts. A state’s “indifference or inaction provides a form of encouragement and/or de facto permission” for privately inflicted harm. The Committee explicitly states that this principle applies to states’ “failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking”. The Committee has placed increasing emphasis on gender issues in ensuring implementation of the Convention, calling on states to “step up efforts” to prevent and combat different forms of sexual and gender-based violence.37 In addition, it should be remembered that gender intersects with other factors and identities, including race, nationality, religion, sexual orientation, age, disability, and immigrant status, meaning people experience torture in distinct ways. The torture protection and prevention framework must therefore be “interpreted against the background of the human rights norms that have developed to combat discrimination and violence against women”.38 Overall, the fact that specific acts of torture are not itemized in the Convention is, however, one of the strengths of the treaty. A list could never fully itemize or describe every possible method of torture that may be used now or in the future. 1.3.2. Obligation to take preventive measures According to article 2 of the Convention, each State party has an obligation to take all necessary measures to prevent acts of torture. This includes legislative, administrative and judicial measures, as well as any other measures that may be appropriate. The Committee against Torture has highlighted that “gender is a key factor” in the prevention of torture. The obligation to prevent torture includes taking positive steps to protect women and other groups from sexual and gender-based violence.39 35 See Elmi v. Australia, Committee against Torture, Communication 120/1998 (views adopted on 14 May 1999), which relates to the definition of “public official” under article 1 of the Convention. In exceptional circumstances where State authority is wholly lacking (Somalia had no central Government at that time), acts by groups exercising quasi-judicial authority could fall within the definition of article 1. 36 Teresa Fernández-Paredes, ‘The Importance of Investigating Torture Against Women and Girls by Non-State Actors: Applicable Legal Standards in International Human Rights Law’ in Gender Perspectives on Torture: Law and Practice, Center for Human Rights & Humanitarian Law, American University Washington College of Law (2018), p. 59. 37 Concluding observations on Senegal (2013) (CAT/C/SEN/CO/3) para.14 (b); Concluding observations on Guatemala (2018) (CAT/C/GTM/CO/7). 38 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the Human Rights Council (5 January 2016) (A/HRC/31/57), para. 9. 39 Idem. para 22. 29