GUIDE ON ANTI-TORTURE LEGISLATION concluding observation that a State shall enact the crime of torture “as defined by the Convention”6 or that the “definition encompasses all the elements of article 1 of the Convention”.7 In its General Comment N°2 on how to introduce effective measures to prevent torture, the Committee asserted that States shall draft their domestic legislation “in accordance, at a minimum, with the elements of torture as defined in article 1 of the Convention”. 8 Although it is the view of the Committee that States parties adopt a definition similar to the one contained in the Convention, they also acknowledge that States have the possibility to provide a definition that is even more protective and that “advances the object and purpose of the Convention”.9 So what are the elements contained in the definition that need to be reflected in the definition of torture? Article 1 of the Convention defines torture as follows: “For the purposes of this Convention, the term “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.” (emphasis and format added) The definition of torture - Four cumulative elements Severe mental or physical suffering must be inflicted: article 1 of the Convention clarifies that “the term “torture” means any act by which severe pain or suffering, whether physical or mental is intentionally inflicted (…)”. It is difficult to assess the severity element through objective criteria. Rather, to meet the condition that torture must be “severe”, it is widely accepted that this is to be interpreted in light of the facts of each case, taking into account the particulars of each victim and the context in which those acts were committed.10 Act or omission must be inflicted intentionally: the act or omission causing suffering must be intentional. Torture cannot be committed negligently. However, although there is no mention in the Convention of a crime of omission, it is recommended in international law that the definition does include an offence by 6 CAT, Concluding observations of the Committee against Torture on Bosnia and Herzegovina (20 January 2011), UN Doc. CAT/C/BIH/CO/2-5, § 8. 7 CAT, Concluding observations of the Committee against Torture on Germany (12 December 2011), UN Doc. CAT/C/DEU/CO/5, § 9. 8 CAT, General Comment N°2, op. cit. 1, § 8. 9 Ibid, § 9. European Court of Human Rights (ECtHR), Ireland v. United Kingdom, App. N°5310/71, ECHR (series A) N°25, judgement of 18 January 1978, § 162; see also ECtHR, Selmouni v. France, App. N°25803/94, ECHR 1999-V, judgement of 28 July 1999, § 160. 10 13