Article 1. Definition of Torture 59 purposes listed in Article 1 and leads to severe pain or suffering, it amounts to torture and can never be justified by applying the principle of proportionality, not even in the ‘ticking time bomb’ scenario.209 The powerlessness of the victim is the essential criterion which the drafters of the Convention had in mind when they introduced the legal distinction between torture and other forms of ill-​treatment.210 3.1.6 Involvement of a Public Official 122 Severe pain or suffering only constitutes torture in the understanding of the Convention if it 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’. The formulation in the 1975 Declaration and the original Swedish draft (‘by or at the instigation of a public official’) reflects the traditional view that States can only be held accountable for human rights violations committed by State actors. Since the main purpose of the Convention was to require States parties to use domestic criminal law for the purpose of punishing perpetrators of torture, several Governments, such as France, Barbados, Panama, and Spain, advocated an extension of the definition covering also private individuals.211 Germany did not go as far but wished to include also non-​State actors who exercise authority over others and whose authority is comparable to Government authority. Since other Governments, including the United States, United Kingdom, Morocco, and Austria, insisted on a traditional State-​centred definition, the Working Group finally agreed on a US compromise proposal which extended State responsibility to the consent or acquiescence of a public official. Since the delegations could not agree on a definition of the term ‘public official’, the Austrian proposal to add the phrase ‘or other person acting in an official capacity’ was adopted. 3.1.6.1 Meaning of ‘public official’ 123  As to the definition of public official itself, the Committee has repeatedly criticized in its Concluding Observations that States have incorporated a definition that may not cover all public officials and persons acting in an official capacity.212 The Committee for example expressed its concern regarding the fact that members of the armed forces are not included as public officials in the definition of torture in the Honduran Criminal Code.213 While there exists a similar provision in the Honduran Military Code, this however carries much lower sanctions. In the State reporting procedure regarding Ethiopia, the Committee criticized that the definition of torture is much narrower than under the Convention, inter alia only referring to ‘acts committed in the performance of duties 209   The ticking bomb scenario is a thought experiment regarding a situation, where a person with knowledge of a terrorist attack about to happen and potentially risking the lives of many persons, is at the hands of the authorities. The question is whether to use torture in order to have the person confess details about the attack in order to potentially avoid it. 210   On the element of powerlessness, it is also worth referring to the work of medical experts in order to draw attention to the seriousness of the victim’s situation of vulnerability. Pérez-​Sales (n 119) 85 for example elaborates on the element of powerlessness: ‘As a “spectacle of power”, torture is not just about inflicting pain, but also a demonstration in inflicting pain . . . Humiliation is related to the absolute loss of one’s power. In torture there is not only an absence of recognition as a human being, but also a total stripping of agency: that is its humiliating core.’ 211   See above 2.2. See also Art 7(2)(e) of the ICC Statute which defines torture as a crime against humanity in the broad sense of applying to both State and non-​State actors. 212   CAT/​C/​CHN/​CO/​5 (n 148) para  7. 213   CAT, ‘Concluding Observations: Honduras’ (2009) UN Doc CAT/​C/​HND/​CO/​1, para 8. Zach