Preventing Torture An Operational Guide for National Human Rights Institutions - Updated Edition 2. Promoting legal reform The Convention against Torture contains a number of important measures that contribute to the prevention of torture. When a State ratifies the treaty, it is obliged to implement these measures in its domestic laws and policies. NHRIs have an important role to play to assess whether the national legal framework meets the requirements set out in the Convention against Torture. When this is not the case, NHRIs should use their mandate to promote the necessary legal reforms. In countries with a monist system – where international obligations directly form part of the national legal framework – NHRIs should monitor the situation to assess whether these obligations are respected in practice. As part of gender mainstreaming, NHRIs should consider how domestic legal frameworks impact on the lives of women, men and people with diverse gender identities, and the existence of discriminatory laws and gaps in protection which increase their risk of torture and ill-treatment. NHRIs should consider the possible impact of any proposed reforms on women, men and people with diverse gender identities, and ensure proposals that contribute to eradicating inequality and harmful gender stereotypes rather than inadvertently perpetuating them. Criminalization of torture (article 4) Article 1 of the Convention against Torture provides a clear definition of torture. This definition makes torture distinct from other crimes such as assault, rape or murder, although there may be some overlap with these crimes. The three key elements of the definition of torture include: • that severe pain or suffering – physical or psychological – is inflicted intentionally • it is committed by agents of the State, or with its consent or acquiescence • for a specific purpose, such as extracting a confession, obtaining information, punishment or intimidation and discrimination. The Convention against Torture requires States parties to make torture a specific offence in their national criminal law. The Committee against Torture recommends that States use, as a minimum, the definition provided in the Convention. If it does not already exist, NHRIs should advocate that a specific crime of torture is included in their country’s criminal code, in accordance with article 1 of the Convention. No defences or exceptional circumstances should be allowed to justify torture, including the defence of superior orders.62 The Convention also requires States to ensure that the crime of torture is punishable with a penalty that takes into account the extremely grave nature of the offence. Insights from practice: The National Human Rights Commission of Mexico has actively contributed to the adoption and implementation of the General Law for the prevention, investigation and punishment of torture. The Commission submitted observations to the draft law and publicly advocated for its adoption by the Senate. in the Law was adopted on 26 June 2017 and since then the Commission has carried out a number of initiatives to promote and monitor its implementation. The Commission on Human Rights of the Philippines played an important role in supporting the national campaign for an anti-torture law in the Philippines. Together with the national civil society coalition, United against Torture Coalition (UATC), a draft anti-torture law was developed and 62 46 Committee against Torture, ‘Concluding observations on the fifth periodic report of China’ (2016) (UN Doc CAT/C/ CHN/CO/5), para 7b.