44 United Nations Convention Against Torture and its Optional Protocol 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 form of cruel, inhuman or degrading treatment. During the drafting of Article 1 CAT, this sentence had been deleted. Similarly, the UK and US proposals to qualify the intensity as ‘extremely severe pain or suffering’ was defeated. This indicates that the UN wished to follow more the approach of the European Commission than that of the ECtHR which, moreover, had been subjected to criticism in the public and legal literature.96 71 The fact that the UN definition of torture seems to be based on the approach of the European Commission has another important consequence:  the distinction between justifiable and non-​justifiable treatment causing severe suffering. According to the Commission, inhuman treatment covers at least such ‘treatment as deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable’.97 In other words, there may be some purposes of deliberately causing severe suffering which might nevertheless be justified and, therefore, do not constitute inhuman treatment. One might think of justified use of force by the police in the exercise of law enforcement policies (lawful arrest of a person suspected of having committed a crime, preventing a person lawfully detained from escaping, quelling a riot or insurrection, dissolution of a violent demonstration, defending a person against crime and unlawful violence, etc)98 and of the military in the case of armed conflict. Whether such use of force can be justified or must be qualified as inhuman treatment depends on the particular circumstances of a given situation to which the principle of proportionality needs to be applied.99 If severe pain or suffering is intentionally caused, however, by any of the purposes listed in Article 1 CAT, no justification and, consequently, no proportionality test seems to be permitted. This line of thinking also confirms that victims of torture are persons who are under the factual power of control of the person inflicting the pain or suffering and therefore in a particularly vulnerable situation.100 Finally, this approach might shed some light on the understanding of the ‘lawful sanctions clause’ in Article 1.101 96   See eg RJ Spjut, ‘Torture under the European Convention on Human Rights’ (1979) 73 AJIL 267; Manfred Nowak, ‘What Practices Constitute Torture? US and UN Standards’ (2006) 28 HRQ 809; Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-​Treatment’ (2005) 23 NQHR 674. 97   See the Opinion of the Commission of 5 November 1969 in the Greek Case (1969) XII Yearbook 186. 98   European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, 1950 (ECHR). See eg the list of purposes in Art 2(2) which might even justify lethal use of force by the police. See Sir Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford University Press 1999) 84 according to whom ‘the direct benefit of the recipient’ seems to be the only legitimate objective of intentionally inflicting severe pain or suffering on a person. On the discussion about the justifiability and proportionality in relation to inhuman and degrading treatment in reaction to the Commission’s holding in the Greek Case see eg AI, Report on Torture (AI 1975) 35 et seq; Rodley, ‘The Treatment of Prisoners’ (n 98) 78 et seq; Malcolm D Evans, ‘Getting to Grips with Torture’ (2002) 51 ICLQ 365. See also Nowak, ‘Challenges to the Absolute Nature’ (n 96) 674. See also SRT (Nowak) ‘Report of the Special Rapporteur on the Question of Torture’ (2005) UN Doc E/​CN.4/​2006/​6. 99   SRT (Nowak) ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc A/​HRC/​13/​39, para 60; SRT (Nowak) ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2010) UN Doc A/​HRC/​13/​39/​Add.5, para 188; SRT (Melzer) ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2017) UN Doc A/​72/​178, paras 41–​45 with reference to relevant ECtHR jurisprudence. 100 101   See below 3.1.5.   See below 3.3. Zach