treatment or punishment to the same extent as Article 16 of the CAT.348 In this regard, the Committee against Torture has urged the United States to withdraw its reservation to Article 16 of the CAT which could permit interpretations incompatible with the absolute prohibition of torture and ill-treatment.349 Further, Executive Order 13440 also suggested that “willful and outrageous acts of personal abuse” could be used for the purpose of gaining intelligence.350 The revocation of Executive Order 13440 by President Obama in 2009351 and the subsequent inclusion of a reference to the prohibition of degrading treatment or punishment in the Department of Defense Directive on the DoD Detainee Program352 are welcome developments in this regard. 205. The Bush administration interpreted provisions against torture and ill-treatment in ways that defied and greatly weakened the prohibition of torture. Its interpretation of the notion of severe physical or mental pain or suffering353 is a critical example of this approach. That administration considered that only physical pain akin to that “accompanying serious physical injury such as organ failure, impairment of bodily function, or even death”354 reached the threshold of severe physical pain. By doing so, it drastically restricted the range of acts that would constitute torture as per the international definition. The interpretation of the concept of severe mental pain as pain resulting in “significant psychological harm or significant duration, e.g., lasting for months or even years”355 equally reduced the scope of the prohibition. Yet, under international law, torture encompasses acts causing severe physical or mental pain even when physical pain does not reach a level of suffering akin to that of a serious physical injury.356 Moreover, the infliction of mental pain may amount to torture even in the absence of significant and lasting psychological harm.357 ODIHR is concerned that this interpretation by the Bush 348 Michael John Garcia, “U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques”, Congressional Research Service, 26 January 2009, p. 3, <http://fas.org/sgp/crs/intel/RL32438.pdf>. 349 UN CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, op. cit., note 107, para. 10. 350 George W. Bush, Executive Order 13440, op. cit., note 180, Sec. 3: “(b) I hereby determine that a program of detention and interrogation approved by the Director of the [CIA] fully complies with the obligations of the United States under Common Article 3, provided that: (i) the conditions of confinement and interrogation practices of the program do not include: (…)(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield”. 351 President Obama revoked Executive Order 13440 in his Executive Order 13491. United States President Barack H. Obama, Executive Order 13491, “Ensuring Lawful Interrogations”, 22 January 2009, <http://www.whitehouse.gov/the_press_office/Ensuring_Lawful_Interrogations>, Sec. 1. 352 Department of Defense Directive 2310.01E, op. cit., note 14, para. 3.b(2). 353 United States Assistant Attorney General Jay S. Bybee, “Memorandum for Alberto R. Gonzales, Counsel to the President, ‘Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A’”, 1 August 2002, <http://www.justice.gov/olc/docs/memo-gonzales-aug2002.pdf>. 354 Ibid., p. 1. 355 Ibid., p. 1. 356 UN Special Rapporteur on torture, “Study on the phenomena of torture”, op. cit., note 283, paras. 32, 74: “The severity does not have to be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or impairment of bodily functions or even death, as suggested in the “torture memos” under the Bush administration in the United States.”. 357 UN Special Rapporteur on torture, “Study on the phenomena of torture”, ibid., para. 74; UN CAT, Conclusions and recommendations of the Committee against Torture, United States of America, CAT/C/USA/CO/2, op. cit., note 107, para. 13. See, also, UN CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, op. cit., note 107, para. 9. 85