ventilated cells of 60 by 80 centimetres, without light, where
the detainee could only stand or crouch is also assessed
as torture.15 Furthermore, the Committee against Torture,
which monitors the implementation of the UNCAT, found,
that forcing persons under interrogation to spend the night
in the interrogation rooms lying handcuffed on the floor
amounts to torture16.
The third element of the definition of torture, which distinguishes it from other forms of ill-treatment, is the intention,
which means that the torturer acts intentionally when inflicting severe pain or suffering on the victim. Purely negligent behaviour cannot qualify as torture. The torturer’s
intention is directed at inflicting severe pain or suffering as
well as at achieving a certain purpose, such as intimidation
or punishment.17
The fourth element of torture is achieving a specific purpose by this conduct. Art. 1 UNCAT explicitly lists purposes such as “obtaining from him or a third person information
or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind” 18. In short, these
purposes include: extracting a confession, obtaining from
the victim or a third person information, punishment, intimidation or coercion and discrimination. All the purposes
listed refer to a situation in which the victim of torture is
detained or under the factual power or control of the torturer. The perpetrator uses this unequal power relation in
order to achieve a certain purpose, such as coercion.19
To sum up, strictly interpreting the definition of torture,
torture cannot be committed by private persons without at
least acquiescence of State officials, cannot be done through
negligence and cannot be committed without a specific
purpose.20
Cruel, Inhuman or Degrading Treatment or
Punishment
Art. 16 UNCAT obliges States parties to prevent acts of
cruel, inhuman or degrading treatment or punishment
(CIDT) which do not amount to torture. A clear distinc-
tion between torture and other forms of ill-treatment is
difficult to make, the definitional threshold between torture and CIDT is often blurred in practice. States have to
prevent both torture and other forms of ill-treatment and
these obligations largely overlap.21 The purpose of the conduct, the powerlessness of the victim and the intention of
the perpetrator are the decisive elements distinguishing
torture from cruel and inhuman treatment. The infliction
of severe pain or suffering by negligence and/or without any
purpose as defined in Art. 1 UNCAT might qualify as cruel
and inhuman treatment. If the victim is not in detention
or under the direct control of the perpetrator, i.e., is not
powerless, ill-treatment can never be regarded as torture.
Typical examples for CIDT are excessive use of force by law
enforcement officials for the purposes of arresting a person,
quelling a riot or dissolving a violent demonstration. In case
the pain inflicted upon the victim is less than severe, it may
be qualified as degrading treatment if it shows a particularly
humiliating element.22
One common element of torture and other forms of illtreatment, however, is the involvement of a public official
or someone acting in an official capacity.23
2.1.2 Broad Approach to the Prohibition of Torture and
other Forms of Ill-treatment
The traditional understanding of torture sees torture as
pain or suffering which is inflicted on a person in State
custody. Traditionally, the prohibition of torture and other
forms of ill-treatment covers acts perpetrated during the
interrogation, punishment or intimidation of a detainee. In
the meantime it is acknowledged by the international community that torture and other forms of ill-treatment can
be perpetrated in different ways and contexts, also outside
the traditional detainee context. A broader approach to
the question of what conduct constitutes torture or other
forms of ill-treatment encompasses, for example, genderbased violence including female genital mutilation, domestic violence, rape, denial of reproductive rights and human
trafficking.24
The Human Rights Committee requires an expansive approach to torture and holds that Art. 7 ICCPR does not
only refer to acts which cause “physical pain but also to acts
Report of the Committee against Torture
Report of the Committee against Torture
CAT General Comment
No. 2: Implementation of article 2 by States parties,
The United Nations Convention against Torture:
A Commentary
Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
Torture in International Law – A guide to jurisprudence
Gender and Torture – Conference
Introduction to the International Human Rights Regime
Report
15
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