54 United Nations Convention Against Torture and its Optional Protocol the circumstances of the case, that pain and suffering was inflicted knowingly for a purpose in line with Article 1. 105  The notorious ‘torture memos’171 in the US ‘War on Terror’ also tried to restrict the definition of torture by arguing that a defendant must act with specific intent to inflict severe pain and ‘the infliction of such pain must be the defendant’s precise objective’.172 From this, the memo concluded that ‘even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.’ The memorandum has been rescinded and the legal view strongly rejected.173 From the text and the travaux préparatoires for the Convention one can conclude that the element of intent for the definition of torture does not require that the perpetrator’s purpose is the causing of pain or suffering. The perpetrator must intentionally, ie knowingly, not negligently or recklessly, inflict pain or suffering and this pain must be inflicted for one of the purposes prohibited under the Convention. This means that the perpetrator must not act with the specific intent to inflict severe pain and suffering.174 As pain and suffering is subjective and levels of pain and suffering for the same treatment might differ from person to person, it cannot be a requirement that intention encompasses the infliction of severe pain and suffering, but it is sufficient that a perpetrator intended the conduct in which he consequently inflicted severe pain or suffering and at least took into consideration that the treatment could inflict pain or suffering.175 It is therefore the specific purpose, as outlined in Article 1’s definition of torture, that determines whether an act or an omission constitute torture, making torture a specific intent crime.176 106  If torture is inflicted on a person by a private individual with the acquiescence of a public official, the question arises whether the requirement of intention applies to the private perpetrator or to the public official or both.177 3.1.4  Purpose 107  As stated above, the requirement of a specific purpose seems to be the most decisive criterion which distinguishes torture from cruel or inhuman treatment.178 That ill-​treatment can only amount to torture if it serves a specific purpose seemed to be uncontroversial during the drafting of Article 1. Opinions differed, however, as to the precise list of purposes enumerated therein.179 Switzerland wished to add non-​therapeutic medical or scientific experiments, Portugal the use of psychiatry for the purpose of prolonging the confinement of a person, and the UK delegation wished to include 172   See paras 91, 99 above.   Bybee memorandum (n 159) 3.   See also above 3.1.2.2; AI, Combating Torture (n 135) 68; Hathaway and others (n 169). 174 175   Also see AI, Combating Torture (n 135) 68.   See § 82 above. 176   Hathaway and others (n 169) 804–​805. 177   For this difficult question of interpretation see below 3.1.6. 178   This interpretation is based on the case law of the European Commission of Human Rights (see above 3.1.2.1.) and has been confirmed, eg by the ICTY in Prosecutor v Delalic et al [1998] ICTY No IT-​96-​21-​T, 16 November 1998, para 442. See also in this respect Rodley, ‘The Definition(s) of Torture’ (n 23) 489; Lene Wendland, A Handbook on State Obligations under the UN Convention against Torture (2002) 28 <https://​ www.apt.ch/​content/​files_​res/​A%20Handbook%20on%20State%20Obligations%20under%20the%20 UN%20CAT.pdf> accessed 3 December 2017; Evans (n 98) 365. See also the UNGA, Rome Statute of the International Criminal Court (ICC) (last amended 2010), 17 July 1998, Part III, Art 30, according to which the purpose constitutes the only element to distinguish the war crime of torture from the war crime of cruel and inhuman treatment. 179   Burgers and Danelius (n 32) 118; Boulesbaa (n 30) 27. 171 173 Zach