Preventing Torture An Operational Guide for National Human Rights Institutions Chapter 1: What is torture? Key questions • What is the definition of torture? • Can torture be justified in exceptional cases? • Is cruel, inhuman or degrading treatment or punishment also prohibited? 1. definition of torture It is important to stress at the outset that the legal definition of torture differs quite significantly from the way the term is commonly used in the media or in general conversation, which often emphasizes the intensity of pain and suffering inflicted. Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides the internationally agreed legal definition of torture: Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes 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, 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. This definition contains three cumulative elements: • the intentional infliction of severe mental or physical suffering • by a public official, who is directly or indirectly involved • for a specific purpose. In some cases, a broader definition of torture, covering a wider range of situations, may apply under another international, regional or national law. When a broader definition applies, the Convention’s definition cannot be used to narrow it. Its articles 1.2 and 16.2 specifically provide that its provisions are without prejudice to provisions contained in any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment. For instance, the definition of torture in the Inter-American Convention to Prevent and Punish Torture goes further by not requiring the pain or suffering to be “severe”; by referring to “any other purpose” rather than just “such purpose as”; and by including the reference to methods “intended to obliterate the personality of the victim or diminish his physical or mental capacities”, irrespective of whether such methods cause pain or suffering. It is important to note that many international torture prevention mechanisms stress the importance of a gender-sensitive interpretation of torture and the need to pay particular attention to questions such as rape in detention, violence against pregnant women and denial of reproductive rights, which have long been recognized as falling under the Convention’s definition. It is also worth noting that “with the consent or acquiescence of a public official or other person acting in an official capacity” has been 12 | Chapter 1: What is torture?