24 Article 4(1) requires every State party to ‘ensure that all acts of torture are offenses under its criminal law’. According to Burgers and Danelius, Article 4 does not require ‘that there must be a separate offense corresponding to torture under [A]rticle 1 of the Convention’.39 Burgers and Danelius were of the opinion that each State party was free to decide whether to deal with torture as a separate offence or to include acts of torture in one or more wider categories of offences. However, they insisted that ‘whatever solution is adopted, the criminal law must cover all cases falling within the definition in [A]rticle 1 of the Convention’.40 This interpretation has given rise to much confusion, and many States parties argued that torture was in any way included in their traditional offences, such as ill-treatment or infliction of bodily harm41 but also amongst others, such (p. 183) as assault,42 rape,43 arbitrary acts,44 or the abuse of power and excess of authority or official power.45
25 However, the inclusion of a separate offence eases the adherence with States parties’ further obligations under the Convention, for example, to give effect to the specific jurisdiction under Articles 5 and 7.46 Otherwise, States parties are inevitably confronted with the problem of the legal classification of a crime over which they need to establish jurisdiction,47 and on the grounds of which they can institute prosecutions of persons who have perpetrated torture elsewhere.48 Moreover, although acts that could be characterized as torture are punishable under various articles of the national Criminal Code, the absence of a single definition of the crime of torture as a separate criminal offence may cause a legal vacuum, possibly leaving some acts amounting to torture uncovered and subsequently unpunished.49
26 Over time, the CAT Committee made clear in its concluding observations that Article 4 required the inclusion of torture as an offence in accordance with the definition in Article 1.50 Furthermore, the CAT Committee has also recommended that the crime of torture should constitute a separate offence in the domestic legislation and not just an aggravating circumstance for the determination of a sentence.51 It reiterated that by a separate definition and a separate offence of torture in accordance with the Convention and distinguishing it clearly from other crimes, ‘States parties would directly advance the Convention’s overarching aim of preventing and punishing torture’.52 Following General Comment 2, ‘[n]aming and defining this crime will promote the Convention’s aim, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture’.53
27 Further, for Article 4 to have its full effect, the CAT Committee considers that specific measures must still be taken at the national level, even if a State allows for the direct effect of provisions of international law (‘monist systems’).54 As the Convention in the context of Article 4 is not considered as self-executing,55 the direct applicability of the (p. 184) Convention in a State party alone is not sufficient to ensure the obligations under Article 4. Accordingly, the offence of torture as defined in the Convention must be linked to a national provision, which imposes an appropriate punishment.
28 Besides, the CAT Committee noted in its conclusions that if the State party’s domestic law itself does not explicitly reflect this prohibition, nor does it impose criminal sanctions the requirements under Article 4 are not met even if other (treaty) obligations expressly prohibit torture and other forms of ill-treatment. The CAT Committee considered that express incorporation in the State party’s domestic law of the crime of torture is necessary to ‘signify the cardinal importance of this prohibition’ and ensure compliance with the obligations under the Convention.56 The CAT Committee has also emphasized that a very general prohibition of torture—be it in the Constitution or any other particular national law, without specifically naming and criminalizing the offence of torture—is not corresponding to Article 4.57 In addition, the sole inclusion of relevant articles of other international treaties into national legislation may not comply with the requirements of Article 4(1) if it does not adequately criminalize torture in general criminal law according to Article 1.58
29 States parties should further ensure the criminalization of torture, in respect to cover their entire territory. In this regard, the CAT Committee expressed concerns relating to the lack of congruity between the offence of torture in domestic law and the requirements under Article 4.59