OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 16. Cruel, Inhuman or Degrading Treatment or Punishment 557
limited to torture and does not extend to cruel, inhuman or degrading treat-
ment encompassed in Article 16.⁶⁹

2.3 Inquiry Procedure

42 In the inquiry procedure under Article 20, the Committee is competent
only to investigate the systematic practice of torture, not of other forms of ill-
treatment.⁷⁰ Nevertheless, it sometimes also made observations beyond the nar-
row concept of torture. For example, in its summary account of the results of
the proceedings concerning Peru of 2001, the Committee qualified the deplor-
able detention conditions of the maximum security prisons at Challapalca and
Yanamayo (situated in the Andes at a height of more than 4,500 metres above
sea level, temperatures of minus 10° or 15° C without heating, no electricity, no
drinking water, etc.) as amounting to cruel and inhuman treatment and pun-
ishment and recommended to the Peruvian authorities to close down both pris-
ons.⁷¹ While the suffering of the detainees in these two prisons was certainly
severe, there seemed to be no specific purpose in the sense of Article 1 to be
achieved. In general, deplorable conditions of detention can only be qualified as
amounting to torture if detainees are subjected to such inhuman treatment with
a specific intention and purpose, such as punishing them or extracting infor-
mation. As regards Peru, the Committee qualified the sensorial deprivation and
almost total prohibition of communication to which some convicted guerrilla
leaders are subjected in the El Calleo naval base as ‘persistent and unjustified
suffering which amounts to torture’.⁷² Presumably, the distinguishing factor
between both types of conditions of detention was not the severity of the suf-
fering, but the fact that the complete solitary confinement was specifically and
intentionally directed against these detainees as an additional punishment.

3. Issues of Interpretation
3.1 Definition of Cruel, Inhuman or Degrading Treatment
or Punishment
43 From the discussion of the definition of torture in Article 1 it became
clear that the drafters of the Convention had relied more on the approach

⁶⁹ Cf., e.g., No. 49/1996, No. 166/2000 and No. 228/2003. See also above, Art. 3, 4.4.
⁷⁰ See below, Art. 20.
⁷¹ A/56/44, §§ 40–41.
⁷² Ibid, §§ 42–43.

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 558 United Nations Convention Against Torture
taken by the European Commission of Human Rights in the Greek case than on
the approach of the European Court of Human Rights in the Northern Ireland
case.⁷³ It follows that the decisive criteria for distinguishing torture from cruel
and inhuman treatment is not the intensity of the pain or suffering inflicted
but the purpose of the conduct, the intention of the perpetrator and the power-
lessness of the victim.⁷⁴ Cruel and inhuman treatment or punishment, therefore,
can be defined as the infliction of severe pain or suffering, whether physical
or mental, by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. Such conduct can
be both intentional or negligent, with or without a particular purpose. It does
not require the specific situation of detention or direct control of the victim by
the perpetrator, which is characteristic only for torture.⁷⁵ Cruel and inhuman
treatment, therefore, also encompasses excessive use of force by law enforcement
officials for other purposes, such as defending a person from unlawful violence,
effecting a lawful arrest, preventing the escape of a person lawfully detained,
quelling a riot or insurrection, or dissolving a demonstration. Outside the nar-
row scope of torture, the infliction of severe pain or suffering may be justified if
such use of force serves a legitimate purpose and is not excessive. The principle
of proportionality must, therefore, be applied in order to assess whether the
infliction of severe pain or suffering amounts to cruel or inhuman treatment
or punishment. There are no clear legal criteria for distinguishing cruel from
inhuman treatment, apart from our common understanding of the meaning
of the words ‘cruel’ and ‘inhuman’.⁷⁶
44 Degrading treatment or punishment can be defined as the infliction of
pain or suffering, whether physical or mental, which aims at humiliating the
victim. Even the infliction of pain or suffering which does not reach the thresh-
old of ‘severe’ must be considered as degrading treatment or punishment if it
contains a particularly humiliating element.

⁷³ See above, Art. 1, paras. 94 et seq.

⁷⁴ On the distinction between torture and cruel, inhuman or degrading treatment, see
E/CN.4/2006/6. See Nowak, (2005) 23 NQHR 674.
⁷⁵ See above, Art. 1, para. 114. But see Burgers/Danelius, 149 who even assume that ‘the victims
of acts referred to in article 16 must be understood as consisting of persons who are deprived of their
liberty or who are otherwise under the factual power or control of the person responsible for the
treatment or punishment’.
⁷⁶ According to the Oxford English Dictionary, ‘cruel’ is defined as 1. ‘disregarding or taking
pleasure in the pain or suffering of others’; or 2. ‘causing pain or suffering’. The word ‘inhuman’
is defined as 1. ‘lacking positive human qualities’; ‘cruel and barbaric’; or 2. ‘not human in nature
or character’. One may conclude that there is no essential difference between cruel and inhuman
treatment.

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