The UNCAT also requires States to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture…, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”32 However, the UNCAT provides no definition of such acts. The Committee against Torture has itself recognised that “In practice, the definitional threshold between cruel, inhuman or degrading treatment or punishment and torture is often not clear.”33 1 UN TREATY BODIES 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”31 However, the UN Special Rapporteur on Torture takes the position that “a thorough analysis of the travaux préparatoires of articles 1 and 16 of [UNCAT] as well as a systematic interpretation of both provisions in light of the practice of the Committee against Torture leads one to conclude that the decisive criteria for distinguishing torture from [cruel, inhuman or degrading treatment] may best be understood to be the purpose of the conduct and the powerlessness of the victim, rather than the intensity of the pain or suffering inflicted.”34 The Special Rapporteur considers that, while torture is absolutely prohibited in all circumstances, the circumstances in which other forms of treatment are perpetrated will determine whether they qualify as cruel, inhuman or degrading within the meaning of the UNCAT. If force is used legally (under domestic law) and for a lawful purpose, and the force applied is not excessive and is necessary to meet the purpose (that is to say, it is proportionate), then this generally will not qualify as cruel, inhuman or degrading treatment.35 However, in a situation of detention or similar direct control, no such test of proportionality applies, and Article 1 UNCAT. Article 16 UNCAT. CAT, General Comment No. 2, “Implementation of article 2 by States Parties”, UN Doc. CAT/C/GC/2/CRP.1/Rev.4 (23 November 2007), §3. It should be noted that this lack of a clear distinction potentially poses a problem as regards those State obligations which apply only to torture, and not to other acts of ill-treatment. See section 1.2.3, below. 34 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc. E/CN.4/2006/6 (23 December 2005), §39. 35 Manfred Nowak and Elizabeth McArthur, “The distinction between torture and cruel, inhuman or degrading treatment”, Torture, Vol. 16, No. 3, 2006, pp. 147–151. “Lawful purposes” include effecting a lawful arrest, preventing the escape of a person lawfully detained, selfdefence or defence of others from unlawful violence, and action lawfully taken to quell a riot or insurrection. 31 32 33 11