Who can torture? Criminalising torture by state and nonstate actors under the UN Torture Convention

Abstract

Introduction: Although State Parties to the United Nations Convention against Torture (UNCAT) are called on to criminalise torture in domestic law by the Committee against Torture, national legislation varies considerably in both the adoption and design of torture offences. This article examines how states have domesticated UNCAT’s prohibition of torture, focusing in particular on whether domestic criminalisation limits criminal liability to state-linked perpetrators or extends it to a broader range of nonstate actors. Method: Drawing on original global data on domestic torture legislation, the article maps patterns in the criminalisation of torture across UNCAT State Parties. It complements this analysis with qualitative case studies of Uganda and Kenya, using theories of the domestic implementation of international human rights obligations to explore how international commitments, domestic political dynamics, institutional and legal frameworks, and historical experiences of violence shaped different legislative approaches. Results: The findings reveal substantial variation in how States criminalise torture. Drawing on the new dataset, the article shows that nearly two-thirds of State Parties have criminalised torture as an autonomous crime, and around a quarter of these extend criminal liability to all nonstate actors. The case studies suggest that while international commitments encouraged legislative reform in both countries, different combinations of strategic adaptation, institutional and legal fit, and historical patterns of violence contributed to divergent legislative designs. Uganda adopted a broad definition encompassing private actors as torture perpetrators, whereas Kenya largely retained UNCAT’s state-centred approach. Conclusions: The findings indicate that international human rights obligations are not incorporated uniformly into domestic law but are interpreted and adapted through domestic political, institutional, and historical contexts. By shifting attention from whether states criminalise torture to how they design torture legislation, the article contributes to scholarship on the domestication of international human rights law and offers new hypotheses about the sources of variation in national anti-torture legislation in terms of the definition and scope of torture perpetrators.