Addendum – The compiled list of elements Definition of torture Primary elements • A separate and specific crime of torture in national legislation is to be adopted. • The definition of torture in national law is to encompass, at a minimum, the elements contained in the article 1 definition: torture is any act by which severe mental or physical pain or suffering is intentionally inflicted for a particular purpose by a public official or with his or her consent or acquiescence or by anyone acting in an official capacity. • National legislation is to contain provisions affirming the absolute nature of the prohibition of torture; the defence of superior order is to be excluded. • The penalty for the crime of torture is to take account of the grave nature of the crime. Recommended elements • In order for the penalty for the crime of torture to be commensurate with the gravity of the crime, a minimum penalty of six years is to be imposed. Optional elements • National legislation includes acts of non-state and private actors in the definition of torture. • National legislation criminalises cruel, inhuman or degrading treatment or punishment. Modes of liability Primary elements • National legislation criminalising torture is to include explicit criminal liability for: ◦◦ the commission of torture; ◦◦ attempt to commit torture; ◦◦ complicity in torture; ◦◦ other forms of participation; ◦◦ instigation of torture; ◦◦ incitement to torture; ◦◦ the commission of acts of torture by public officials who acquiesce or consent to torture. 59