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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.1 Definition of Torture

Gerrit Zach

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 18 May 2022

Subject(s):
Torture — Treaties, interpretation

(p. 23) Article 1  Definition of Torture

  1. 1.  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

  2. 2.  This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

1.  Introduction

Article 1 CAT is the first provision in an international treaty which defines torture. It served as a model for the definition contained in Article 2 of the Inter-American Convention to Prevent and Punish Torture adopted in 1985. Article 1 has to be read in conjunction with Article 16, which requires States parties to prevent ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as (p. 24) defined in article 1’. The distinction between torture and other forms of ill-treatment, all of which are absolutely prohibited under Article 7 CCPR and other international and regional treaty provisions as well as customary international law, was introduced because some of the specific State obligations laid down in the CAT, above all the obligation to punish the perpetrators of torture by means of domestic criminal law, were meant to apply to torture only. While there have been different approaches regarding how to differentiate torture and other ill-treatment—either by the severity of pain or the purpose of the conduct—there is an increasing consensus that purpose constitutes the relevant distinguishing criterion. Additionally, powerlessness has become a significant criterion to distinguish between torture and other forms of ill-treatment.

The main elements of the definition of torture are the following:

  • •  involvement of a public official;

  • •  infliction of severe pain or suffering;

  • •  intention;

  • •  specific purpose

As with any legal definition, many questions of interpretation arise which will be addressed on the basis of the travaux préparatoires, reservations and declarations of States parties, information provided in State reports, the practice of the Committee and other relevant monitoring bodies, legal literature, and other sources. Beside the discussions on how to distinguish torture from other forms of ill-treatment and the meaning of powerlessness, the interpretation of the lawful sanctions clause has been particularly controversial.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Declaration (9 December 1975)1

Article 1

  1. 1.  For the purposes of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

  2. 2.  Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

IAPL Draft (15 January 1978)2

Article II

For the purposes of this Convention, torture is any conduct by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by or at (p. 25) the instigation of a public official or for which a public official is responsible under Article III, in order:

  1. (a)  to obtain from that person or another person information or a statement or confession; or

  2. (b)  to intimidate, discredit or humiliate that person or another person; or

  3. (c)  to inflict punishment on that person or another person, save where such conduct is in proper execution of a lawful sanction not constituting cruel, inhuman or degrading treatment or punishment.

Original Swedish Draft (18 January 1978)3

Article 1

  1. 1.  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

  2. 2.  Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

Revised Swedish Draft (19 February 1979)4

Article 1

  1. 1.  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

  2. 2.  [Torture is an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.]

  3. 3.  This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application relating to the subject matter of this Convention.

2.2  Analysis of Working Group Discussions

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.

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 [3], 10, 11, 12, 13, [14] and [15] 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):

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not constitute torture as defined in Article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles [3], 10, 11, 12,13, [14] and [15] shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.11

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.37

32  The same issue came up again at the thirty-fifth session of the Commission on Human Rights. During the 1979 Working Group there had been considerable discussion as to whether Article 1 should specify the purposes for which acts of torture might be perpetrated. Some delegates suggested that it would be unduly restrictive to specify any purposes at all; others indicated that the list of purposes was not an exhaustive one.38 Several proposals were made for extending the list and general agreement was reached to include as torture such acts as inflict severe pain and suffering for any reason based on discrimination of any kind.39 The United Kingdom expressed concern about including the phrase ‘or for any reason based on discrimination of any kind’ as it did not see the need to isolate this particular motivation and felt that it did not have the necessary degree of precision for a criminal offence. It requested that the following statement be included in the Group’s report:

The United Kingdom shares the concern to eliminate all forms of torture, including any motivated by discrimination. The United Kingdom is doubtful of the need to isolate this particular motivation and in practical terms the United Kingdom thinks that there will in any case be difficulties in doing so with the necessary degree of precision for a criminal offence.40

During the consideration of the Convention by the General Assembly for its adoption in 1984 the United States expressed its view that Article 1 should be understood to apply to both specific purposes mentioned in the definition, and to purposes or motives regardless of whether or not they were mentioned in Article 1.41 This proposal was reminiscent of similar proposals made during the drafting of the 1975 Declaration for the inclusion of ‘or for any other purpose’ after the words ‘or other persons’.42 The United Kingdom made a further proposal to include in the definition the phenomenon of ‘gratuitous torture’.43 Finally Portugal sought to add to the non-exhaustive list, the use of psychiatry ‘for the purpose of prolonging the confinement of any person subjected to a measure or penalty involving deprivation of freedom’.44 It was also agreed that coercion should be included amongst the purposes listed in order to broaden their scope.45

(p. 34) 33  The language of the draft Swedish text46 upon which the Working Group based the main part of its discussions refers to torture inflicted ‘by or at the instigation of a public official’. There was a lengthy discussion but no agreement on the definition of ‘public official’ by the Working Group. It was suggested that torture inflicted by persons other than public officials be included in the text of the Convention.47 At the same time some speakers pointed out that the act of torture committed by a public official was different in nature from, and inherently more serious than, that inflicted by a private person, and that the elimination of the former category of torture should be the main target of the Convention.

34  During the discussion on the Convention in 1978 in the Third Committee of the General Assembly the French delegation proposed that private individuals be mentioned in Article 1. The Director of the UN’s Division of Human Rights intervened in favour of the proposal and pointed out that some States provided information on methods of torture and that perhaps States should give more consideration to the point.48

35  In their written comments, some Governments submitted alternative text proposals. Austria proposed that the concept could be expanded to include ‘persons acting in an official capacity’.49 The United Kingdom proposed to insert ‘or any other agent of the state’ after public official to add clarity to the definition.50 Both the United States and the Federal Republic of Germany proposed that the term ‘public official’ be defined.51 The FRG’s proposal covered a wide range of cases and extended to individuals outside the Government. In particular they felt it should be made clear that public official included persons who, regardless of legal status, have been assigned public authority by State organs on a permanent basis or in an individual case, but also to persons who, in certain regions or under particular conditions, actually hold and exercise authority over others and whose authority is comparable to Government authority or—be it temporarily—has replaced Government authority or whose authority has been derived from such persons.52 The United States proposed a more elaborate definition of the concept ‘public official’ which sought to clarify the breadth of the concept and to make clear that both civil and military officials were included, expressing concern that the situation might arise where any person vested with the exercise of some official power of the State may well have sufficient authority to coerce another individual, and could escape prosecution under national law because of his public office. They therefore proposed the following language in order to cover such a scenario:

any public official who a) consents to an act of torture, b) assists, incites, solicits, commands, or conspires with others to commit torture, or c) fails to take appropriate measures to prevent or suppress torture when such person has knowledge or should have knowledge that torture has or is being committed and has authority or is in a position to take such measures, also commits the offence of torture within the meaning of this convention.53

36  Barbados expressed the opinion that the definition be extended to cover acts of private individuals in light of the provisions of Articles 7 and 8 of the original Swedish draft. (p. 35) They argued that Article 7 extends the concept of torture to cover the offences of complicity, participation, incitement, and attempt, and that since these offences are committed by private citizens this article was inconsistent with Article 1 which limits the definition of torture to acts of public officials. In the same way they argued that Article 8, which deals with offences committed on board ships and aircraft, necessarily referred to acts of individuals and therefore should be redefined to apply to the offences in Articles 7 and 8 as well as other acts of private individuals.54

37  The draft IAPL Convention had also left room for the interpretation that it be applied to private individuals. Article II referred to acts ‘inflicted on a person by or at the instigation of a public official’. Article III of this draft referred to ‘a person’ (ie rather than a public official).55 Article III of the draft went on to illustrate the particular instances in which certain conduct would engender responsibility of a person for torture.56

38  In written comments on the IAPL draft Barbados suggested that the definition should be extended to cover acts of individual citizens in order to harmonize Article III which treats the offences of incitement, participation, attempt, and complicity as acts of torture. Morocco went on to point out that it was not always easy for a public official to have ‘reasonable belief’ that torture had been committed by one of his subordinates and that it would also be difficult to prove that such a ‘senior public official’ had ‘reasonable belief’ or even knowledge that torture had been committed since, as far as the police, for example, were concerned, an interrogation frequently took place in private between the police officer and the suspect or accused, without witnesses. Furthermore, the legal repercussions of the articles seemed to imply a ‘kind of immediate collective responsibility of public officials, whereas law always decreed the individuality of offences and therefore of penalties’. According to Morocco, Article II of the draft could give rise to a broad interpretation and lead to a general responsibility of officials, or even of the State, without even requiring that an investigation be carried out and before a decision on such responsibility is taken. Morocco went on to elaborate its views on State responsibility which it indicated could not be involved in such a situation because a crime involving torture committed by the officials of a State could not be attributed to that State except within the strict framework of the rules of international law governing State responsibility. None of the bilateral or multilateral international legal assistance agreements made such a ‘hasty judgement’ concerning State responsibility and it was therefore extremely desirable that the terms of the article be carefully amended. It should not, as it appeared to do, endorse a procedure which was as clearly contrary to legal practice as trials by hearsay; on the contrary it should insist that a preliminary legal investigation be carried out. It should also set out clearly the criteria for defining principal guilt and complicity, including (in view of the spirit of the Article) passive complicity.

39  During its thirty-fifth session some States reiterated that the definition should not be limited to ‘public official’ and should apply to all individuals under the jurisdiction of a contracting State. It was said that such an approach was preferable because of the possible incidence of acts of torture committed by those other than public (p. 36) officials. Others felt that such acts should be covered by existing or future national law, and that international action was primarily designed to cover situations where national action was otherwise least likely. In the end it was generally agreed that the definition of acts committed by public officials should be expanded to cover acts committed by, or at the instigation of, or with the acquiescence of a public official or any other person acting in an official capacity.57 This wording was adopted by the Working Group in 1980.

40  During General Assembly debates in 1984, Panama expressed dissatisfaction with the definition of torture, arguing that the language limited the definition and suggesting that it did not apply to acts of torture committed by individuals, civilian organizations, or pseudo religious sects.58 Panama and Spain felt that the prohibition should not have been limited to public officials alone since the purpose of the Convention is to eradicate any and all activities which result in torture. Spain preferred that the scope be wider and consistent with the General Assembly’s 1975 Declaration on the Protection of All Persons from being subjected to Torture.

41  It is hard to say what sanctions are ‘inherent in or incidental to lawful sanctions’ in a particular legal system. The Working Group did not provide any criteria on how to make this determination nor did it define the terms. Even if it had been able to do so this would have given rise to serious disputes amongst States parties due to the disparity of different legal systems.

42  The starting point was the 1978 Swedish draft which qualified its application as being consistent with the UN Standard Minimum Rules for the Treatment of Prisoners (adopted by the General Assembly in the form of a recommendation and not as internationally binding legal obligations).59 There was considerable discussion at the Working Group’s thirty-fourth session on this topic. The United Kingdom, the Federal Republic of Germany, the German Democratic Republic, Spain, and the United States proposed the deletion of this reference to the rules as they felt that their inclusion would grant the rules the character of a legally binding instrument.60

43  In written comments the United Kingdom noted in particular that it was apparent from the last sentence of paragraph 1 of the original Swedish draft that the Convention would accept the Standard Minimum Rules as a standard and that therefore the last sentence should be deleted.61 The Federal Republic of Germany also preferred to omit the reference, arguing that the Standard Minimum Rules were ‘lower ranking regulations which could be altered by non-legislative means and that could therefore directly modify the contents of the convention’.62 The German Democratic Republic recalled that the reference had not been common practice with the United Nations in the past and that such a reference would make the Standard Minimum Rules ‘an essential criterion in a binding international instrument, thereby depriving them of their recommendatory nature’. The Spanish delegation noted that they sought the deletion of the reference as it was ‘not only unnecessary (bearing in mind the concept being described) but also because the (p. 37) rules constitute a “recommendation” to the Government and, for technical legal reasons, it is inadmissible to bring them into a convention which, as an international treaty, gives rise to legal obligations among States Parties’. In addition the Swiss delegation noted that the Standard Minimum Rules were not rules of positive law and that it would therefore be appropriate to limit further the number of possible exceptions.63 There was a Danish proposal to amend the reference to ‘… to the extent consistent with international rules for the treatment of persons deprived of their liberty’.

44  This question provoked serious concern in the Working Group’s thirty-fifth session. Some felt the reference to the Standard Minimum Rules should be reintroduced. Others suggested the inclusion of a reference to ‘existing international standards’ or using some other formulation in order to ensure that certain existing or future ‘lawful sanctions’ did not frustrate the spirit of the Convention. It was argued that the rules were limited in scope in that they dealt only with punishment relating to matters of prison discipline and that they lacked legally enforceable status in international law. One representative pointed out that the Standard Minimum Rules did not cover treatment during the period preceding actual trial and sentencing after which the detained person was designated a ‘prisoner’.64

45  Certain States argued that while the Convention was intended to strengthen the already existing prohibition of torture in international law, it was not intended to lead to reform of the system of penal sanctions in different States and that, if that had been the intention, the Convention would have been unacceptable to a number of countries. Certain Islamic States for example did not want to be party to an instrument which deemed the imposition of certain corporal punishments under Shari’a to be a breach of the Convention.65 It was also in the interest of these States that ‘lawful’ refer to national and not international law.

46  On the other hand there were those States who thought that this was too far reaching an exception since it might be interpreted so as to allow States to practise methods which would normally be regarded as torture, by making them lawful sanctions under its own legal system.66 This ambiguity could mean for instance that the amputation of a hand for theft in certain Arab States following traditions of Islamic law would be lawful in one country but not in others. Many States argued for clarification whilst feeling it important to retain the clause in order to stop encroachment into national criminal law. They argued that there must be a limit beyond which sanctions provided for by national law are so cruel as to constitute torture.

47  The clause had already appeared in the 1975 Declaration. During the Declaration’s drafting process a number of participants proposed that it be made clear in the Declaration 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 law and in accordance with the Standards Minimum Rules’.67 The reference to the Standard Minimum Rules was inserted in order to make clear that certain limits should be set and that particular sanctions could not be imposed. Article 31 of the Standard Minimum Rules for instance states that ‘corporal punishment, punishment by (p. 38) placing in a dark cell, and all cruel inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences’.

48  Article 1 of the original Swedish draft (which was identical to Article 1 of the 1975 Declaration) contained an exception relating to ‘pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules’. However, for reasons noted above several delegations objected to the reference to the Standard Minimum Rules and it was not included in the final text of the Convention.

49  Article II (c) of the draft submitted by the IAPL suggested alternative wording ‘… save where such conduct is in a proper execution of a lawful sanction not constituting cruel, inhuman or degrading treatment or punishment’. There were no comments made on the IAPL proposal.

50  In written comments in 197868 the United States accepted the concept that pain or suffering ‘arising only from, inherent in or incidental to sanctions lawfully imposed’ should be exempted from the definition of torture, arguing that it would be ‘inappropriate and politically unacceptable to use the convention as a means of reaching sanctions practised by one culture of which another culture may disapprove’.

51  France proposed a clear distinction between penalties affecting the person and honour of the criminal (peines afflictives et infamantes) which could legitimately be imposed as punishment and treatment which by causing violent physical pain or extreme mental suffering, altering the physical capacity of the victims or making the victim an object of derision or hatred, tortures the person to whom it is applied. The USSR highlighted the need to draw a clear distinction between measures that legitimately applied to offenders and forms of treatment or punishment which, because of their cruel, inhuman or particularly degrading nature, cannot be regarded as acceptable.

52  While the United States felt that it would be desirable to retain the concept that sanctions must be lawfully imposed in order to be exempted from the definition of torture, they suggested that language should be added to make the defence that a sanction was ‘lawfully imposed’ inapplicable when it was ‘imposed in flagrant disregard of accepted international standards’. The United States went on to elaborate that the negotiating history should show that ‘such standards are presently embodied in article II of the Universal Declaration of Human Rights and Article 75(4) of Protocol I to the 1949 Geneva Conventions (although such standards are subject to amendments over time)’.

53  During the discussion in the 1979 Working Group some representatives made the point that the limitation clause relating to ‘pain or suffering arising only from, inherent in or incidental to lawful sanctions’ should have been deleted as too broadly worded. Several delegates stated that it was desirable to refer to ‘existing international standards’ or to use some other formulation in order to ensure that certain existing or future ‘lawful sanctions’ did not frustrate the spirit of the international Convention. However, it was widely agreed that, in the absence of specific existing international standards, it was not advisable to refer to universally acceptable principles.69 As no agreement was possible on reference to accepted international standards, the adopted text removed the reference to the Standard Minimum Rules while maintaining a general exception for pain and suffering resulting from lawful sanctions.

(p. 39) 54  This outcome was clearly the result of a compromise between two opposing views. During the fortieth session of the Commission the United Kingdom voiced concern over the lawful sanctions clause, arguing that in order to prevent the provisions of the Convention from being bypassed, it should not exclude pain and suffering deriving from the use of lawful sanctions. Uruguay expressed serious misgivings in relation to Article 1 and in particular to the lawful sanctions clause, asking ‘how can sanctions which might cause pain or suffering be considered lawful?’70 The Observer for Norway voiced that his delegation would have preferred to have seen the omission of the exemption for lawful sanctions.71 Canada also complained about the exclusion of pain or suffering arising only from, inherent in or incidental to lawful sanctions.72 While accepting the wording of Article 1(1) as a compromise, Belgium voiced concern over the notion of ‘lawful sanction’, arguing that it was imprecise and thus constituted an even broader ‘escape clause’ than had Article 1 of the 1975 Declaration. In their written comments the Netherlands (‘the word “lawful” must be understood as referring to compatibility with both national and international law’), the United Kingdom (‘it should be understood that any such sanctions must be lawful under international as well as national law’), Italy (‘perplexed by the definition contained in Article 1(1), above all in relation to “lawful sanctions” which in any case must be understood as referring also to international law’) and the United States (‘lawful sanctions … must be understood to mean sanctions which are “lawful” under both national and international law’) took the view that the expression must be interpreted as reflecting commonly accepted international legal standards.73

55  The result was that certain Islamic States were now offered an opening to be party to this instrument. The Working Group did not include the same exception in Article 16. During the 1981 Working Group it was suggested that a provision similar to the last sentence of paragraph 1 of Article 1 should be inserted in Article 16, in order to exclude from the scope of Article 16 suffering arising only from lawful sanctions, as had been done in the definition of torture in Article 1 of the draft Convention. That suggestion was opposed by several members who pointed out that the purpose of Article 16 was to prohibit the existence of cruel, inhuman or degrading treatment and punishment, not to legalize it by having such treatment incorporated into law. The reply elicited by that interpretation of the suggestion was that the last sentence in paragraph 1 of Article 1 did not admit the legalization of torture. Attention was also drawn to the distinction between the legal connotations of the concepts of ‘punishment’ and ‘lawful sanctions’. It has been pointed out that punishment on the basis of Shari’a law could now be in conflict with Article 16 of the Convention.74

56  The so called ‘saving clause’ in Article 1(2) outlines that the definition does not affect the protection which can be derived from other international instruments from national legislation of wider application. At the same time other international instruments or national law can never restrict the protection which individuals enjoy under the Convention. This clause was first proposed by Sweden as a draft Article 1(3) at the pre-sessional discussions at the thirty-fourth session with different wording: ‘… this Article is (p. 40) without prejudice to any international instrument or national legislation which does or may establish wider prohibitions.’75

57  The revised Swedish text of Article 1(3) which read ‘… this Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application relating to the subject matter of this Convention’ was adopted by consensus and later considered by the 1981 Working Group where the wording ‘national legislation’ was changed to ‘national law’ to make it consistent with Article 16(2).

58  However, as adopted by the Commission during its thirty-seventh session in 1981, Article 1(2) read:

… this Article is without prejudice to any international instrument or national law which does or may contain provisions of wider application.

59  There was no further debate on the paragraph at the thirty-eighth Working Group session as it appears in the annex and contains ‘national legislation’ instead of ‘national law’. Boulesbaa has suggested that this may have been a mistake as it appears there had been a deliberate attempt to bring the paragraph into line with Article 16(2).

2.3  Reservations, Declarations, and Understandings

60  Some Governments made reservations relating to the definition of torture in Article 1.76 Botswana considered itself bound by Article 1 only to the extent that ‘torture’ means the ‘torture and inhuman or degrading punishment or other treatment prohibited by Section 7 of the Constitution of the Republic of Botswana’. A similar reservation, limiting the Convention’s definition of torture to the definition enshrined in national legislation, was made by Fiji and Thailand.77 The Lao People’s Democratic Republic noted that the term ‘torture’, as in Article 1, ‘means torture as defined in both national law and international law.’78 Qatar even made a reservation aimed at ruling out ‘any interpretation of the provisions of the Convention that is incompatible with the precepts of Islamic law and the Islamic religion’—a very general reservation, which Qatar partly withdrew, however ‘keeping in effect a limited general reservation within the framework of Articles 1 and 16 of the Convention’.79 The United Arab Emirates issued a controversial declaration regarding its understanding of lawful sanctions, which was strongly rejected by many European States.80

61  The United States ratified the CAT only subject to a number of ‘understandings’ as previously advised by the Senate.81 A considerable number of these ‘understandings’, some of which go beyond a mere declaration of interpretation and, in fact, amount to a (p. 41) reservation, are related to the definition of torture in Article 1. For example, the United States ‘understands’ that

in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.82

Furthermore, it understands the definition of torture ‘is intended to apply only to acts directed against persons in the offender’s custody or physical control’, that the term ‘acquiescence’ requires that ‘the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity’, and that ‘non-compliance with applicable legal procedural standards does not per se constitute torture’.83 In response to these notable limitations on the scope of the definition, the Committee recommended that the United States enact a federal crime of torture in terms consistent with Article 1 and withdraw such reservations, interpretations, and understandings relating to the Convention.84

62  A number of predominantly European Governments rightly objected to these far-reaching reservations: Denmark, Norway and Sweden objected to the reservation of Botswana as being incompatible with the object and purpose of the CAT; Portugal, Italy, Peru and Latvia objected to the reservation by Fiji with the same line of argumentation; Norway objected to the ‘declaration’ by Lao People’s Democratic Republic and Sweden objected to Thailand’s ‘declaration’, underlining that ‘it is unclear to what extent the Kingdom of Thailand considers itself bound by the obligations of the treaty.’ Finland, France, Germany, Luxembourg, the Netherlands, Norway, Spain and Sweden objected to the general reservation by Qatar. With respect to the US ‘understandings’, the Government of Sweden expressed the view that they ‘do not relieve the United States of America as a party to the Convention from the responsibility to fulfil the obligations undertaken therein’. The Government of the Netherlands considered some ‘understandings’ as insufficiently clear, while others appeared to ‘restrict the scope of the definition of torture’ or ‘diminish the continuous responsibility of public officials for behaviour of their subordinates’.85 The Committee recommended in its Concluding Observations to the US, that ‘it should give further consideration to withdrawing its interpretative understandings and reservations’,86 especially making sure that ‘acts of psychological torture are not qualified as “prolonged mental harm” ’.87

(p. 42) 3.  Issues of Interpretation

3.1  The Definition of Torture

63  According to Article 1(1), the term ‘torture’ means ‘any act by which severe pain or suffering’ is intentionally inflicted on a person for a specific purpose. The different elements of torture—conduct, infliction of severe pain and suffering, intention, purpose, the involvement of a public official, as well as powerlessness as an important distinguishing criterion—shall be discussed subsequently.

64  There is a clear understanding, underlined by the Committee as well as the UNSRT, that the definition of torture is not only to apply to interrogation settings, but also to areas like gender-based violence, abuses in healthcare, etc.88 Both in the Concluding Observations, as well as in in the individual complaints procedure, the Committee has outlined which acts or omissions may amount to torture and how the different elements are to be interpreted.

3.1.1  Conduct

65  Whereas Article I of the IAPL draft refers to ‘any conduct’, Article 1 CAT is based in this respect on Article 1 of the Declaration and the Swedish draft which use the term ‘act’ which might give rise to a more narrow interpretation excluding omissions. Nothing in the travaux préparatoires indicates, however, that the drafters had in mind such a narrow interpretation that would exclude a conduct which intentionally deprives detainees of food, water and medical treatment from the definition of torture.

66  Already in the Greek case, which was one of the main sources of inspiration for Article 1 CAT, the European Commission on Human Rights had held that ‘the failure of the Government of Greece to provide food, water, heating in winter, proper washing facilities, clothing, medical and dental care to prisoners constitutes an “act” of torture in violation of article 3 of the ECHR’.89 Since States have a legal duty arising from various human rights to provide detainees with adequate food, water, medical care, clothing, etc., it would indeed, as Boulesbaa suggested, be ‘absurd to conclude that the prohibition of torture in the context of Article 1 does not extend to conduct by way of omission’.90 The Committee has equally clarified that States are responsible for both, acts and omissions.91

3.1.2  Infliction of Severe Pain and Suffering

3.1.2.1  Severity as a Distinguishing Element between Torture and Ill-Treatment?

67  Torture is a particularly grave human rights violation. During the drafting of Article 1, it was, therefore, generally agreed that only conduct which causes severe pain or suffering, whether physical or mental, can amount to torture. Otherwise this term would be used in an inflationary manner. The word ‘severe’ can be found in the 1975 (p. 43) Declaration, in the Swedish and IAPL drafts. Only the USSR proposed in the General Assembly to delete the word ‘severe’, but no convincing reasons were provided for this surprising amendment. On the other hand, the US and UK Governments wished even to strengthen the required intensity of the pain or suffering by adding the word ‘extremely’ before ‘severe’. Finally, the Swiss Government advocated that no distinction should be made between torture and inhuman treatment as to the respective severity of the suffering.92

68  These differences of opinion, at least to some extent, are also reflected in the approaches between the European Commission and Court of Human Rights. In the Greek case, the Commission took the position that the severity of pain or suffering distinguishes inhuman treatment (including torture) from other (including degrading) treatment, whereas the purpose of such conduct constitutes the decisive distinguishing criteria between torture and inhuman treatment.93 On the basis of this definition, the Commission had no problems in qualifying the five combined ‘deep interrogation techniques’ which had been used by British security forces against suspected terrorists in Northern Ireland (wall-standing in a ‘stress position’, hooding, subjection to noise, deprivation of sleep, food, and drink for long periods of time) as torture.94

69  The UK and US position, on the other hand, seems to be inspired by the more cautious approach of the ECtHR in the Northern Ireland case. In its well-known judgment of 18 January 1978, the Court held:95

In order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. In the Court’s view, this distinction derives principally from a difference in the intensity of the suffering inflicted … Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

In other words, the Court arrived at the conclusion that the severity and intensity of the suffering (and not the specific purpose as assumed by the Commission) was the decisive criterion for distinguishing torture, to which a ‘special stigma’ is attached (‘deliberate inhuman treatment causing very serious and cruel suffering’), from other forms of inhuman or degrading treatment.

(p. 44) 70  In its reasoning, the Court has also made reference to the last sentence of Article 1 of the 1975 Declaration, according to which torture constitutes an ‘aggravated’ and deliberate fo