JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ 41 court in which the offence of torture is being prosecuted. According to medical science, the subjective threshold of pain may vary a great deal from one person to another. Moreover, the physical invasiveness of the procedure is not decisive. Letting water drop for hours on the shaved head of a person, as in a well-known Japanese form of torture during the Second World War, may not seem very invasive, yet it clearly caused severe suffering. Concerning the practice of force-feeding at Guantanamo, the United Nations Special Reporter on Torture, Manfred Nowak, carefully stated: “If these allegations are true then this definitely amounts to an additional cruel treatment.”1 If, in the considered opinion of one of the world’s leading experts on human rights, force-feeding amounts to “cruel treatment” then forced vomiting, at a minimum, is also “cruel”. The crucial difference, of course, is that force-feeding is presumably in the interest of the person subjected to it, whereas, despite feeble allegations to the contrary, forced vomiting is not. The purpose of forced vomiting is to obtain evidence. Force-feeding introduces nourishment, whereas the forced insertion of the tube in the case before us introduces an emetic. The consequence of forcefeeding is the nutritional restoration of the starved individual, the consequence of forced vomiting is convulsive involuntary vomiting and sometimes death. The force-feeding may be accompanied by anxiety due to the physical insertion of the tube but not as to the consequences of its insertion. In the case of forced vomiting, especially if the person subjected to this procedure is aware of preceding instances of concomitant death, the anxiety is subjectively more severe and objectively, at that, well-founded. Force-feeding lacks the specific intent necessary for the perpetrated conduct to amount to torture yet it can nevertheless be “inhuman and degrading”. The specific intent in cases of forced vomiting fits the definition of torture as regards the required subjective motivation of the perpetrator of this conduct, which in the language of Mr Justice Frankfurter, shocks the conscience. Nevertheless, except in extreme cases of mistreatment (electroshocks, Palestinian hanging, falaka, etc.), it is impossible to generalise. The United Nations Convention against Torture is predicated on the idea that the States Parties will incriminate torture precisely as defined in the above-cited Article 1, which Germany has not done although it has repeatedly been urged to do so by the United Nations Committee against Torture. Once prosecuted, the consequences of mistreatment can become a question of fact at the trial of the alleged torturer. This question of fact may be determined, for example, by questioning the victim. In other words, the definition of torture in the UNCAT is not predicated on the possibility that a State Signatory to the Convention will introduce and perpetuate a practice of obtaining evidence that not only results in its refraining from prosecuting 1. At http://news.bbc.co.uk/2/hi/americas/4569626.stm.