III. Content of the obligation to take effective measures
to prevent torture
8. States parties must make the offence of torture punishable as an offence
under its criminal law, in accordance, at a minimum, with the elements of torture
as defined in article 1 of the Convention, and the requirements of article 4.
9. Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity.
In some cases, although similar language may be used, its meaning may be
qualified by domestic law or by judicial interpretation and thus the Committee
calls upon each State party to ensure that all parts of its Government adhere
to the definition set forth in the Convention for the purpose of defining the
obligations of the State. At the same time, the Committee recognizes that
broader domestic definitions also advance the object and purpose of this
Convention so long as they contain and are applied in accordance with the
standards of the Convention, at a minimum. In particular, the Committee
emphasizes that elements of intent and purpose in article 1 do not involve a
subjective inquiry into the motivations of the perpetrators, but rather must be
objective determinations under the circumstances. It is essential to investigate
and establish the responsibility of persons in the chain of command as well
as that of the direct perpetrator(s).
10. The Committee recognizes that most States parties identify or define
certain conduct as ill-treatment in their criminal codes. In comparison to
torture, ill-treatment may differ in the severity of pain and suffering and does
not require proof of impermissible purposes. The Committee emphasizes
that it would be a violation of the Convention to prosecute conduct solely as
ill-treatment where the elements of torture are also present.
11. By defining the offence of torture as distinct from common assault or
other crimes, the Committee considers that States parties will directly advance
the Convention’s overarching aim of preventing torture and ill-treatment.
Naming and defining this crime will promote the Convention’s aim, inter alia,
by alerting everyone, including perpetrators, victims, and the public, to the
special gravity of the crime of torture. Codifying this crime will also (a) emphasize the need for appropriate punishment that takes into account the gravity
of the offence, (b) strengthen the deterrent effect of the prohibition itself, (c)
enhance the ability of responsible officials to track the specific crime of torture
and (d) enable and empower the public to monitor and, when required, to
challenge State action as well as State inaction that violates the Convention.
Appendices ► Page 111
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