8 Regarding the scope of Article 1, the preliminary deliberations in the Human Rights Commission’s various Working Groups on this point were conducted on the basis of a draft Convention submitted by Sweden to the thirty-fourth Session of the Human Rights (p. 26) Commission in 1978.5 States were also presented with a draft text submitted by the International Association of Penal Law6 whose definition only included acts of torture. There was very little debate on the IAPL draft concerning Article I.
9 Discussions began within the Informal Working Group in 1978 and later during the session of the Working Group in 1979 without any agreement being reached as to the scope of Article 1. It emerged that certain delegates rejected the reference in Article 1(2) of the draft Swedish Convention to torture as an ‘aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’ on the basis that the concept was too vague to be included in a Convention which was to form the basis for criminal legislation in the contracting States.7 The opposing opinion was that both concepts should be included in the Convention given that it was not deemed possible to draw a strict line between acts of torture and other lesser forms of acts of cruel, inhuman or degrading treatment or punishment, reasoning that torture is merely the most extreme of such acts.
10 In written comments in 1978 the United States made clear their position that the Convention should be focused primarily on the prevention and suppression of acts clearly identifiable as torture, arguing that this was necessary in light of the severe penalties, broad jurisdictional provisions, and definitional difficulties embodied in the Convention along with the need for broad international acceptance. The United States further stated that it was not their intention to denigrate the fact that acts of cruel, inhuman or degrading treatment not clearly amounting to torture are serious offences. At the same time, they sought to emphasize that torture is the most extreme form of acts of cruel, inhuman or degrading treatment and that unfortunately it was not possible to draw a sharp line between other lesser forms of cruel, inhuman or degrading treatment and torture.
11 Several Governments suggested that the definition of torture should be modified and that the concept of cruel, inhuman or degrading treatment should be clarified. Spain argued that the difficulties inherent in arriving at a legal definition of cruel, inhuman or degrading treatment made it advisable to limit the scope of the Convention exclusively to torture which, they argued, was the main concern of the Convention according to Articles 7 and 8. The German Democratic Republic was of the same opinion, stating that there was no clear definition of the criteria by which other cruel, inhuman or degrading treatment was to be judged and that these defects could not be remedied by listing certain actions described as torture and that therefore it would be appropriate to limit the draft Convention to torture. The USSR were also of the opinion that the concepts of torture and cruel, inhuman or degrading treatment should be regarded as legally distinct in order to avoid imprecision and ambiguity as to the specific meaning of cruel, inhuman or degrading treatment since the institution of punishment is legally applicable to persons who have committed an offence.8 The Federal Republic of Germany argued that since the draft Convention establishes legal obligations for States, the term torture should be defined and distinguished as precisely as possible from the ‘marginally different’ term of cruel, inhuman or degrading treatment.9
(p. 27) 12 On the other hand France made clear its position that cruel, inhuman or degrading treatment involves acts of physical or mental torture and that no distinction should be drawn between the two; that, on the contrary, torture should be defined in such a way as to encompass both. At the same time Switzerland argued that any definition could have the effect of limiting the scope of the concept which it sets out to define and that therefore it was essential to ensure that the definition of torture did not result in any weakening of existing law, which prohibits torture and inhuman treatment unconditionally and in the same manner and makes no distinction as to the respective seriousness of such acts. The Swiss Government argued that for these reasons the Convention should cover acts of torture and cruel, inhuman or degrading treatment, on the same footing and proposed the following text: ‘the term “torture” includes, cruel, inhuman or degrading treatment or punishment.’10
13 During deliberations in the 1979 Working Group many delegations expressed the view that Article 1(2) of the original Swedish draft risked unduly restricting the definition of torture and should be deleted. On the other hand several delegates pointed out that the deletion of this reference would not in any case prejudge the broader issue of whether subsequent articles of the Convention should apply only to torture or also to other forms of cruel, inhuman or degrading treatment. Article 1(2) was placed in square brackets to be discussed at a later date.
14 This matter was resolved during the 1980 Working Group through the inclusion in Article 16(1) of language providing that the obligations in the Convention and, ‘in particular’, contained in the text of Articles , 10, 11, 12, 13,  and  which only apply to torture, should also apply to other forms of cruel, inhuman or degrading treatment. During the debate in the 1980 Working Group one delegate pointed out that Article 1(3) of the revised Swedish text had specified that the Article was without prejudice to provisions of a wider application relating to the subject matter of the Convention and that similarly Article 16 (of the revised Swedish draft) was a saving clause affirming the continued validity of other instruments prohibiting punishments or cruel, inhuman or degrading treatment. It was at this point that a proposal was made to have the following text as paragraph 1 of Article 16 with the original text of the revised Swedish version appearing as Article 16(2):
15 In support of the proposal it was emphasized that international conventions that prohibit cruel, inhuman or degrading treatment, and in particular the CCPR and the ECHR, were already in force and that the prohibition was necessary to prevent offenders from taking advantage of an unduly narrow interpretation of the word ‘torture’. Other (p. 28) delegates felt that the concepts were too vague to be applied at the criminal law and police regulation levels.
16 Some delegates proposed replacing the term ‘to prevent’ by ‘to prohibit’ in the above proposal for the text of Article 16(1). However, this proposal was not taken up in the final text of Article 16.
17 At the same time the authors of the proposal agreed to delete the words ‘in particular’ in the French text of the proposal (although the wording of the CAT retains the words ‘en particulier’). Further, one delegate expressed a reservation with respect to Article 16(2) stating that there was no necessity for such a provision.
18 During the 1981 and 1982 Working Groups certain delegations argued for and against the retention of the bracketed Article 1(2). Those arguing in favour of retaining Article 1(2) considered it essential to affirm from the very outset that the prohibition of cruel, inhuman or degrading treatment was included within the scope of the Convention and to make it clear that torture was, in their view, at the highest end of a scale of such treatment or punishment. Such a clarification was necessary in order that the crime of torture be defined with sufficient precision for purposes of their domestic criminal law. Other delegations, pointing out that there was no universally accepted concept of cruel, inhuman or degrading treatment, felt that the reference in Article 1(2) as then worded would be far too vague for inclusion in a treaty, and that it would tend to bring imprecision to the concept of torture which had been agreed upon in Article 1(1).12 As a result of the discussion in the 1982 Working Group and the incorporation of new language in Article 16(1), the Group decided to delete Article 1(2). At the same time it was agreed that the term ‘national legislation’ in Article 1(3) be replaced with ‘national law’ in order to bring that paragraph into line with Article 16(2).
19 Debate on the scope of the proposed Article 16 and in particular its reference to Articles 3, 14, and 15 continued in the 1981 Working Group. Some delegates were of the opinion that no reference should be made to Articles 3, 14, and 15. After discussion, the Working Group decided to delete the reference to Articles 3 and 15 and to retain the reference to Article 14, between square brackets. Articles 16 (1) and (2) were adopted.
20 Discussion continued in the 1982 Working Group where the United States introduced an amendment to include either the following phrases, ‘which are not sufficient to constitute torture’ or ‘which do not amount to torture’, after the words ‘inhuman or degrading treatment or punishment’. In support of the amendment, several speakers considered it important to indicate clearly in the Convention that torture was the gravest form of cruel, inhuman or degrading treatment and that the whole range of such treatment or punishment should be covered by some articles at least of the Convention. Some other delegations felt, however, that the proposal introduced an undesirable element of vagueness into the text. One opinion was that the difference between torture, as defined or referred to in national laws and in some international decisions, and cruel, inhuman or degrading treatment was one of substance and not of degree. After some debate, it was agreed to adopt the second alternative on the understanding that no delegation maintained its objection against this formulation.
21 As regards the reference to Article 14 in Article 16(1) regarding compensation some speakers, referring to Article 11 of the 1975 Declaration against Torture, favoured a reference on the grounds that victims of cruel, inhuman or degrading treatment may have (p. 29) a legitimate claim to compensation. Other representatives did not feel that extension of the scope of their compensation laws to an ill-defined field to include all such treatments would be warranted. Since no consensus could be reached, the Group decided to revert to this question at a later stage.13 No consensus was possible either in the 1983 Working Group. During the 1984 Working Group several delegates expressed themselves in favour of including the reference to Article 14 in Article 16(1). Some of the other speakers opposed the reference, fearing that the concept of cruel, inhuman or degrading treatment was too imprecise as a basis for an enforceable right to compensation and might lead to difficulties of interpretation and possible abuses. While one representative suggested that the Working Group might try again to agree on a definition of this concept, others, who were in favour of including the reference, expressed the opinion that a definition was not necessary and that each country would develop its own case law on this matter. India asked that reference be made in the report to the general reservation concerning Article 14 which her delegation had entered at the previous session. The representative of Spain proposed the inclusion of references to Articles 3, 14, and 15 in Article 16(1), in order for the mechanism of protection to be in harmony with the title of the Convention itself which included ‘other cruel, inhuman or degrading treatment or punishment’ arguing that if reference to these three articles was not acceptable to the Working Group, then the second sentence of paragraph 1 should be deleted. One other representative also proposed the deletion of the second sentence. In light of the ensuing discussion and in view of the fact that some of these issues had been debated in the past, the representative of Spain, in a spirit of compromise, withdrew his proposal. The representative of the USSR, in an effort to help overcome the difficulties with regard to the question, suggested that the Convention could specify that, in such a case, compensation would be limited to material damage and damage to the health of a person.14 After further consultations, the Chairman Rapporteur noted that several delegations which had favoured the inclusion of a reference to Article 14 had now indicated that they would not insist on such a reference if it created an obstacle to reaching agreement on draft Article 16. At its eleventh meeting, the Working Group decided to adopt draft Article 16, limiting the reference in the first paragraph to Articles 10, 11, 12, and 13. The delegations of Canada and Ireland stated that they had not opposed the adoption of Article 16, but that they wished to see registered in the report that their Governments retained a strong preference for including a reference to Article 14 in this provision. In written comments the representative of Canada outlined that his delegation had made considerable concessions in the Working Group, particularly in the matter of compensation for victims of cruel or degrading treatment and that the very definition of torture did not seem to his delegation to go far enough.15 The delegation of the USSR, drawing attention to the fact that Article 16 was (p. 30) the only provision referring to acts of cruel, inhuman or degrading treatment or punishment which did not amount to torture, expressed the view that the provision should have been presented in a more detailed way, with a more precise definition, so that the article would have a stronger effect. To this end the delegation had proposed reproducing the provisions of other instruments which had binding force for States parties.16 The delegation, considering it possible to adopt Article 16 without a reference to Article 14, stated that it would not insist on its proposal. However, it emphasized that, if in the course of the further consideration of Article 16 some delegations again raised the question of the necessity of including a reference to Article 14 in Article 16, it would return to its proposal.17
22 There was no difficulty encountered in the drafting stage about the meaning of ‘any act by which severe pain or suffering …’. The wording of the alternative IAPL draft referred to ‘any conduct’. In written comments Barbados sought to change the phrase in Article III (a) from ‘such conduct’ to ‘acts of torture’.18 However there was no mention of the question in the preparatory works about whether or not an omission such as omission of food, water, or medical attention would be regarded as a prohibited act and neither is this mentioned expressis verbis in the Convention.
23 It is interesting to note that during the drafting of the UN Declaration on Torture of 1975, from which the language of Article 1 of the original Swedish draft of 1978 was borrowed, a proposal that the word ‘severe’ be deleted and that it be made clear that the Article would not apply to a penalty or punishment imposed by a judicial tribunal in accordance with law or to a disciplinary administrative action taken under the provisions of the Standard Minimum Rules, had been rejected.19 The final text of the Declaration thus defined torture as ‘any act by which severe pain or suffering … is … inflicted’. This notion of severity of pain or suffering was adopted in the original Swedish draft (‘torture means any act by which severe pain or suffering … is … inflicted’) and appeared also in the alternative IAPL draft (‘torture is any conduct by which severe pain or suffering … is … inflicted’).
24 In written comments, this point was addressed by a number of States. The United States, being of the opinion that torture is the most extreme form of acts of cruel, inhuman or degrading treatment, supported the inclusion of the notion of severity of pain or suffering, arguing that a requisite ‘intensity’ and ‘severity’ of pain or suffering was an inherent element of the offence of torture and proposing the language ‘extremely severe pain and suffering’ as an alternative to mere ‘severe’ pain and suffering as appeared in the original Swedish draft.20 At the same time they indicated that in their view, although conduct which may result in permanent impairment of physical or mental faculties may be indicative of torture, it is not an essential element of the offence. The German Democratic Republic drew attention to the fact that the wording ‘… act by which severe pain or suffering, whether physical or mental …’ could be interpreted in many ways. The (p. 31) Swiss delegation, of the opinion that no distinction should be made between torture and cruel, inhuman or degrading treatment, advocated that no distinction be made as to the respective seriousness of the acts.21
25 The United Kingdom was of the opinion that the definition of torture in the original Swedish draft should be made more consistent with the definition in the jurisprudence of the ECtHR and to this end suggested that the word ‘extreme’ should be substituted for the word ‘severe’.22 In the same year the ECtHR in the Ireland v. United Kingdom case had drawn a distinction between torture and inhuman and degrading treatment based primarily on a progression of severity, arguing that the distinction was necessary because a ‘special stigma’ attaches to torture. It has been suggested that the United Kingdom wanted to reaffirm the relative intensity of pain and suffering notion, presumably to preserve the perceived benefits of the decision in Ireland v United Kingdom.23 This proposal was not taken up and Article 1, with its reference to the word ‘severe’, was adopted by the Working Group prior to the thirty-fifth session of the Commission on Human Rights.
26 Following its finalization by the Working Group of the Commission on Human Rights the representative of the USSR introduced amendments to the draft resolution24 which proposed the deletion of the word ‘severe’ before ‘pain and suffering’ in the debates of the Third Committee.25 However, the final text of the Convention retained the notion of severity as it appeared in the original Swedish draft text.
27 The 1975 Declaration, the original Swedish draft, the IAPL draft, and the final text of the Convention all refer to ‘severe pain or suffering, whether physical or mental’. During the drafting Portugal considered that it would be useful expressly to include a reference to the use of psychiatry for political purposes in the definition of torture26 and proposed that ‘the abuse of psychiatry with a view to prolonging the confinement of any person subjected to a measure or penalty involving deprivation of freedom shall be regarded as torture’ be added to the text of Article 1(1). While this proposal could be indicative of the types of acts which the delegations considered could in certain instances constitute mental torture, the criteria as to what constitutes ‘mental pain or suffering’, as with the concepts of torture or indeed cruel, inhuman or degrading treatment, are unclear and were not debated by the Working Group. The German Democratic Republic stated that the wording could be interpreted in many ways. One delegation felt that the term ‘mental torture’ was not a clear enough term for the purpose of the criminal law of States.27 The United Kingdom went along with this, arguing that the concept was too ambiguous for national courts of States to assess, especially when dealing with the motive of (p. 32) discrimination.28 They expressed concern that in certain aspects the definition of Article 1 of the draft Convention was rather loose and susceptible to subjective interpretation, highlighting in particular that it would be difficult for courts to assess the concept of mental suffering, particularly when linked to a motive such as discrimination.
28 Regarding situations where no physical or mental pain or suffering is apparent in the complainant, Barbados proposed that the Commission consider expanding the definition of torture to include the use of more sophisticated weapons such as ‘truth drugs’ where no physical or mental suffering is apparent in the complainant.29
29 The above conduct is prohibited when it ‘is intentionally inflicted on a person’. This seems to imply the exclusion of negligent conduct from the application of Article 1. However, no reference was made to the question as to when a particular conduct ceases to be considered purely negligent in the drafting history. The United States expressed dissatisfaction with this term, preferring ‘deliberate’ and ‘malicious’ over ‘intentional’. They proposed that Article 1(1) read ‘for the purposes of the present convention, the offence of torture includes any act by which extremely severe pain or suffering, whether physical or mental, is deliberately and maliciously inflicted on a person by or with the consent or acquiescence of a public official’.30 The concept of acquiescence of a public official rather than ‘instigation by’ was proposed in order that it be made clear that the public official has a clear duty to act to prevent torture. No other State commented on this point and it elicited no serious discussion by the Working Group. The US proposal was not adopted. Neither was a UK proposal that the pain not only be intentionally, but also ‘systematically’ inflicted.31 It appears that the drafters of the present Convention considered the phrase ‘severe pain’ sufficient to convey the idea that only acts of a certain gravity be considered to constitute torture and that it was not considered necessary that the pain be inflicted systematically. It follows that even single, isolated acts can be considered to constitute torture.
30 The conduct must be carried out for the purpose of achieving a specific result. Article 1(1) contains a non-exhaustive list of objectives, leaving room to qualify action as torture if it is applied with a different objective than that stated. Burgers and Danelius32 note that the words ‘such purposes as …’ mean that other objectives than those named must indeed have something in common with the objectives mentioned, ie the existence of some—even remote—connection with the interests or policies of the State and its organs. This is supported by the objective of the Convention as it appears in the travaux préparatoires and the preamble, ie the bringing to an end of torture by or under the responsibility of public authorities.
31 Regarding the purposes for which torture was used, while some States supported a reference to it in Article 1, others stated that it should be deleted as too restrictive.33 The legislative history indicates that the list of purposes is meant to be ‘indicative’ rather than ‘all-inclusive’.34 The United Kingdom made the point that greater precision would have (p. 33) been achieved if the purposes were listed rather than exemplified in Article 1(1) while the Swiss delegation doubted that an exhaustive list would cover infliction of pain or suffering as a result of medical or scientific experimentation not required by the state of health of the individual. They therefore proposed that the following language be inserted after the first sentence of Article 1(1): ‘It also means medical or scientific experiments that are not justified by a person’s state of health and serve no therapeutic purpose.’35 This would have been consistent with the CCPR and its travaux préparatoires but was not included in the final text. France, in its written comments on Article 1, was adamant that torture should not be defined in terms of the status and motives of the perpetrators of acts of torture owing to the fact that this reference might afford States parties a means of evading their commitment to prevent or punish all acts of torture regardless of the identity and goals of the perpetrators.36 The Netherlands were also of the opinion that the list of purposes mentioned in Article 1(1) was illustrative, rather than exhaustive.