52 United Nations Convention Against Torture and its Optional Protocol Hernández Colmenarez and Guerrero Sánchez v Bolivarian Republic of Venezuela,152 as well as in its Concluding Observations.153 The HRC, with respect to Colombia, made explicit findings of torture in disappearance cases, after the cases were investigated and the mortal remains had been found.154 97 Every instance of secret detention amounts to enforced disappearance.155 Consequently, in the case HB v Algeria, the Committee held that the secret detention of the complainant, inflicted humiliation, and inhumane conditions of detention constituted a violation of Article 1 of the Convention.156 98  In the case of Megreisi v Libyan Arab Jamahiriya, the Human Rights Committee established that ‘incommunicado’ detention in a secret location for more than three years per se constitutes torture and cruel and inhuman treatment.157 99  Regarding the meaning of ‘severity’, the UNSRT has clarified that severity ‘does not have to be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death’, as suggested by the so-​called ‘torture memos’ under the Bush administration in the US.158 The memorandum drafted by Jay S Bybee in 2002 suggested that ‘severe’ means that ‘the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure’, as well as ‘associated with a sufficiently serious physical injury, such as death, organ failure, or serious impairment of body functions’.159 The memorandum was rescinded after the Abu Ghraib scandal in June 2004 and replaced by the ‘Levin memorandum’, which explicitly rejected the Bybee memorandum’s assertions.160 The UNSRT has also underlined that while injuries might constitute an aggravating factor, torture should never be reduced to its consequences, especially since many torture methods nowadays are designed not to leave any marks.161 100 Finally, the Convention, like any other human rights instrument, has to be considered a ‘living instrument which must be interpreted in light of present-​day 152   Hernández Colmenarez and Guerrero Sánchez v Bolivarian Republic of Venezuela, No 456/​2011, UN Doc CAT/​C/​54/​D/​456/​2011, 15 May 2015, paras 6.4, 6.6. 153   See the Committee’s ‘Concluding Observations on Mexico’ (2014) UN Doc CAT/​C/​MEX/​CO/​5-​6, para 12; Rwanda, CAT/​C/​RWA/​CO/​1 (n 149) para 14; Turkmenistan (2011) UN Doc CAT/​C/​TKM/​CO/​ 1, para 15; Sri Lanka, CAT/​C/​LKA/​CO/​3-​4 (n 150) paras 8 and 9; Colombia (2010) UN Doc CAT/​C/​COL/​ CO/​4, paras 11 and 17; Chad (2009) UN Doc CAT/​C/​TCD/​CO/​1, paras 14 and 17. 154  cf Bautista de Arellana v Colombia, No 563/​1993, UN Doc CCPR/​C/​55/​D/​563/​1993, 27 October 1995 and Arhuacos v Colombia, No 612/​1995, UN Doc CCPR/​C/​56/​D/​612/​1995, 14 March 1996. 155   Joint Study on Global Practices in relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin; the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-​Chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair Jeremy Sarkin (2010) UN Doc A/​HRC/​13/​42, para 28; AI, Combating Torture (n 135) 138. 156   HB v Algeria, No 494/​2012 (n 105) para 6.3. See also below 3.2 on the legal obligation emanating out of Article 1. 157   El-​ Megreisi v Libyan Arab Jamahiriya, No 440/​1990, UN Doc CCPR/​C/​50/​D/​440/​1990, 27 December 1991. 158   SRT (Nowak) A/​HRC/​13/​39 (n 99) para 44. 159   US Department of Justice, Memorandum for Alberto R Gonzales, Counsel to the President. Re: standards of conduct for interrogation under 18 USC paras 2340–​2340A 1 August 2002 (hereinafter Bybee memorandum). 160   Manfred Nowak, ‘Powerlessness as a Defining Characteristic of Torture’ in Başoğlu (n 120) 439. 161   A/​HRC/​13/​39/​Add.5 (n 99) para  54. Zach