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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 72 United Nations Convention Against Torture
103 Mexico was the first country that permitted the Committee to publish
the entire report of the inquiry procedure.¹⁶⁶ The Committee concluded that
‘the police commonly use torture and resort to it systematically as another
method of criminal investigation, readily available whenever required in order
to advance the process’ and specified that the purpose of torture nearly always
was to obtain information or a self-incriminating confession.¹⁶⁷ The torture
methods identified in the report were manifold and included handcuffing
behind the back, blindfolding, deprivation of sleep, food, water and using
the bathroom, mock executions, electric shocks, blows to various parts of the
body, above all the ears, placing of plastic bags over the head and tightened
around the neck to cause a sensation of asphyxiation, and pouring of water
containing irritants such as carbonic acid or chilli powder into the mouth and/
or nose while pressure is applied to the victim’s stomach.¹⁶⁸ In one prison, the
Committee also considered certain punishments and ill-treatment, such as
handcuffing and shackling for days at a time, and putting inmates undressed
in a freezing, air-conditioned room for days at a time as torture.¹⁶⁹
104 Finally, in the 2004 summary account of the results of the inquiry
procedure concerning Serbia and Montenegro, the Committee concluded that
torture had been systematically practised in Serbia prior to October 2000 but
that, under the new regime, the incidence of torture appeared to have dropped
considerably and torture was no longer systematic.¹⁷⁰ The torture methods
applied during the Milosevic regime were, however, not further explained.
105 As the CCPR does not contain any definition of the concepts covered
by Article 7 CCPR and as no legal consequences derive from the precise quali-
fication of a particular practice, the Human Rights Committee does not consider
it necessary to draw sharp distinctions between the various prohibited forms
of treatment or punishment.¹⁷¹ Nevertheless, in its case law under the individ-
ual complaints procedure, the Human Rights Committee sometimes made
attempts to distinguish between the different forms of ill-treatment. Already in
the early cases concerning the military dictatorship in Uruguay in the 1970s the
Human Rights Committee qualified various brutal methods applied against
members of the left wing opposition, usually during interrogations in the

¹⁶⁶ CAT/C/75 of 26 May 2003.

¹⁶⁷ Ibid, § 218.
¹⁶⁸ Ibid, §§ 143–144.
¹⁶⁹ Ibid, § 165.
¹⁷⁰ A/59/44, §§ 211–212.
¹⁷¹ General Comments 7/16 of 27 July 1982, § 2 and 20/44 of 3 April 1992, § 4.

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 Article 1. Definition of Torture 73
initial period of ‘incommunicado’ detention, clearly as torture:¹⁷² the applica-
tion of electric shocks to fingers, eyelids, nose and genitals when tied naked to a
metal bedframe (‘picana eléctrica’) or in coiling wire around fingers and genitals
(‘magneto’), burnings with cigarettes, extended hanging from hand and/or leg
chains, often combined with electric shocks, repeated immersion in a mix-
ture of blood, urine, vomit and excrement (‘submarino’), standing naked and
handcuffed for great lengths of time, systematic beatings, simulated executions
or amputations. With respect to Colombia, explicit findings of torture were
made primarily in disappearance cases, after the cases were investigated and
the mortal remains had been found.¹⁷³ Torture has also been established by
the Committee in other continents.¹⁷⁴ The torture methods, which had been
employed by the military security forces of President Mobuto in the former
Zaire (Congo) included systematic beatings, electric shocks, mock executions,
deprivation of food and water for prolonged periods, and thumb presses. In
the case of Megreisi v. Libyan Arab Jamahiriya, the Committee established that
‘incommunicado’ detention in a secret location for more than three years per
se constitutes torture and cruel and inhuman treatment.¹⁷⁵ But the case law
does not indicate whether the particular brutality of the treatment and severity
of the victims’ suffering or the intention and purpose of the perpetrators were
the distinguishing features between cruel and inhuman treatment on the one
hand, and torture on the other.¹⁷⁶

4.3 Intention
106 Article 1 requires that severe pain or suffering must intentionally be
inflicted on the victim in order to qualify as torture. Purely negligent conduct,
therefore, can never be considered as torture. When a detainee is, for example,
forgotten by the prison guards and slowly starves to death, such conduct cer-
tainly produces severe pain and suffering, but it lacks intention and purpose
and, therefore, can ‘only’ be qualified as cruel and/or inhuman treatment.

¹⁷² Cf. Nowak, CCPR-Commentary, 162 with reference to the relevant cases, such as Grille
Motta (No. 11/1977), Bleier (No. 30/1978), López Burgos (No. 52/1979), Sendic (No. 63/1979),
Angel Estrella (No. 74/1980) and Rodriguez (No. 322/1988).
¹⁷³ Cf. the cases of Bautista (No. 563/1993) and Arhuacos (No. 612/1995).
¹⁷⁴ Cf. Nowak, CCPR-Commentary, 163.
¹⁷⁵ No. 440/1990.
¹⁷⁶ See also Rodley, Current Legal Problems, 478, who indicates that the non-use of the word
‘torture’ in the cases of Birindra and Tshisikedi v. Zaire (Nos. 241 and 242/1987) and in Polay
Campos v. Peru (No. 577/1994) might be explained by the fact that the inhuman and degrading
treatment found in these cases did not take place in the context of interrogation and, accordingly,
the purposive element was not apparent.

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