46
United Nations Convention Against Torture and its Optional Protocol
measures, such as that the use of specific measures must be weighed against the degree
of anticipated danger, that the physical and psychological means of pressure must be defined and limited in advance by issuing binding directives, and that there must be strict
supervision of the implementation in practice of these directives. In a second section
of its report, the Landau Commission went on to detail precisely the exact forms of
pressure permissible to the GSS interrogators. This section had been kept secret out of
concern that, should the narrow restrictions binding the interrogators be known to the
suspects undergoing questioning, the interrogation would be less effective.110 Already in
its conclusions and recommendations regarding the initial report of Israel adopted in
April 1994, the Committee considered the ‘moderate physical pressure’ permitted by
the Landau Commission Report as a ‘lawful’ method of interrogation ‘completely unacceptable’ as it created ‘conditions leading to the risk of torture or cruel, or inhuman or
degrading treatment or punishment’, and, ‘by retaining in secret the crucial standards of
interrogation to be applied in any case, such secrecy being a further condition leading
inevitably to some cases of ill-treatment’.111
75 In its consideration of the Israeli interrogation practices, the Committee did not
make a clear distinction between torture and other forms of ill-treatment which might be
an indication that it does not consider the severity of pain or suffering a decisive criterion
distinguishing torture from inhuman treatment.112 In light of this analysis, one might conclude that the CAT Committee applies a fairly strict interpretation of both torture and other
forms of ill-treatment prohibited by Article 16 CAT, which seems similar to the approach
of the European Commission in the Greek and Northern Ireland cases. Since the other
definition criteria of Article 1 CAT (intention and purpose of extracting information from
a detainee) were clearly met, the Committee found a violation of both Articles 1 and 16.
76 However, in Sergei Kirsanov v Russian Federation, the Committee concluded
that ‘the conditions in which the complainant was detained . . . do not appear to have
caused “severe pain and suffering” within the meaning of article 1, paragraph 1, of the
Convention’.113 Subsequently, the Committee, without any other explanation, found
cruel, inhuman or degrading treatment within the meaning of Article 16 and seems to
have reached this conclusion because in its view the severity criterion was not fulfilled.
77 In its General Comment 2 on Article 2, the Committee has recognized that there
may be a difference between torture and other forms of ill-treatment in the severity of
pain and suffering but also that in any case torture does ‘not require proof of impermissible purposes’.114 This formulation leaves room for interpretation but seems to indicate
that the Committee considers both the severity of pain and suffering as well as the purpose, as distinguishing elements. It thereby
retains the concept of differing thresholds of relative severity as between ‘torture’ and ‘cruel
or inhuman treatment’, but applies the CAT Convention threshold of simple ‘severe pain and
CAT/C/33/Add.2/Rev.1, para 10.
CAT/C/SR.183 and 184; CAT, ‘Report of the Committee Against Torture’ (1994) UN Doc A/49/44,
para 168.
112
CAT/C/SR.339, para 6. See also the similar conclusions of the UN Special Rapporteur on Torture in
SRT (Rodley) ‘Question of the human rights of all persons subjected to any form of detention or imprisonment, in particular: torture and other cruel, inhuman or degrading treatment or punishment’ (1997) UN Doc
E/CN.4/1997/7, para 121.
113
Sergei Kirsanov v Russian Federation, No 478/2011, UN Doc CAT/C/52/D/478/2011, 14 May 2014,
para 11.2.
114
CAT/C/GC/2 (n 88) para 10.
110
111
Zach
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