A/HRC/13/39/Add.5 of the principle of sovereign immunity in relation to reparation claims for serious human rights violations is currently at issue before the International Court of Justice.123 Pending the Court’s decision, I would submit that if States are serious in wanting to combat torture, State immunity should not be permitted to act as a shield, whether in criminal or civil proceedings. In this respect, I welcome efforts in the British House of Lords to adopt the draft Torture Damages Act, which would not only establish civil jurisdiction of British courts over extra-territorial acts of torture, but also contains an exception to the principle of State immunity.124 A similar bill was initiated in the Canadian Parliament at the end of 2009, which would allow victims of extra-territorial torture to sue their tormentors in Canadian courts for damages.125 I encourage legislatures in other countries to adopt similar legislative initiatives to provide a legal basis for civil remedies for all torture victims, regardless of where the torture was committed. III. A. Cruel, inhuman and degrading treatment and punishment Definition 186. The prohibition of torture in articles 7 ICCPR and relevant provisions of regional human rights treaties include a prohibition of cruel, inhuman and degrading treatment and punishment (CIDT), which is separately prescribed in article 16 CAT. The prohibition of CIDT is also non-derogable. While the CAT expressly defines torture, there is no such definition of CIDT in international treaties. As a consequence, CIDT is commonly defined by its distinction from torture, according to article 1 CAT. Other than for purposes of definition, the distinction between torture and CIDT is important since certain obligations under the CAT only apply to torture, above all, the obligation to criminalize acts of torture and apply the principle of universal jurisdiction in this regard. 187. In my view, cruel and inhuman treatment is not to be distinguished from torture by the intensity of the suffering inflicted, as suggested by some scholars and the European Court of Human Rights in the Northern Ireland case.126 The travaux préparatoires of article 1 CAT reveal that the insertion of any requirements of an “aggravated” treatment or “extremely” severe pain or suffering for the qualification as torture has been rejected. A distinction by the severity of the treatment also seems to run counter to the practice of the Committee against Torture, which has repeatedly found instances of torture without questioning the particular severity of the pain.127 This means that in principle, all forms of cruel and inhuman treatment and punishment, including torture, require the infliction of severe pain of suffering. This is different for the qualification of degrading treatment or punishment in the sense of article 16 CAT, where the particular humiliation of the victim is sufficient, even if the pain or suffering is not severe. 188. The systematic and historical interpretation of articles 1 and 16 CAT suggest that the decisive criteria for distinguishing CIDT from torture are the purpose of the conduct, the intention of the perpetrator and the powerlessness of the victim. Torture constitutes such a horrible attack on the dignity of a human being because the perpetrator of torture 123 124 125 126 127 50 “Germany Institutes Proceedings Against Italy for Failing to Respect its Jurisdictional Immunity as a Sovereign State” Press Release, ICJ, 23 December 2008. Torture Damages Bill, House of Lords, Session 2008–09, available at: http://www.publications.parliament.uk/pa/ld200809/ldbills/017/09017.i-i.html. “Canada bill clears way to sue foreign torturers”, AFP 26 November 2009. European Court of Human Rights, Ireland v. United Kingdom, 18 January 1987, para. 167. E.g. No. 207/2002, para. 5.3; A/48/44/Add.1, para. 52; A/56/44, paras. 44, 43.