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de facto control of a State party. The Committee emphasizes that the State’s obligation to prevent
torture also applies to all persons who act, de jure or de facto, in the name of, in conjunction with, or
at the behest of the State party. It is a matter of urgency that each State party should closely monitor
its officials and those acting on its behalf and should identify and report to the Committee any
incidents of torture or ill-treatment as a consequence of anti-terrorism measures, among others, and
the measures taken to investigate, punish, and prevent further torture or ill-treatment in the future,
with particular attention to the legal responsibility of both the direct perpetrators and officials in the
chain of command, whether by acts of instigation, consent or acquiescence.
III.
Content of the obligation to take effective measures to prevent torture
8.
States parties must make the offence of torture punishable as an offence under its criminal
law, in accordance, at a minimum, with the elements of torture as defined in article 1 of the
Convention, and the requirements of article 4.
9.
Serious discrepancies between the Convention’s definition and that incorporated into
domestic law create actual or potential loopholes for impunity. In some cases, although similar
language may be used, its meaning may be qualified by domestic law or by judicial interpretation
and thus the Committee calls upon each State party to ensure that all parts of its Government adhere
to the definition set forth in the Convention for the purpose of defining the obligations of the State.
At the same time, the Committee recognizes that broader domestic definitions also advance the
object and purpose of this Convention so long as they contain and are applied in accordance with the
standards of the Convention, at a minimum. In particular, the Committee emphasizes that elements
of intent and purpose in article 1 do not involve a subjective inquiry into the motivations of the
perpetrators, but rather must be objective determinations under the circumstances. It is essential to
investigate and establish the responsibility of persons in the chain of command as well as that of the
direct perpetrator(s).
10.
The Committee recognizes that most States parties identify or define certain conduct as illtreatment in their criminal codes. In comparison to torture, ill-treatment may differ in the severity of
pain and suffering and does not require proof of impermissible purposes. The Committee
emphasizes that it would be a violation of the Convention to prosecute conduct solely as illtreatment where the elements of torture are also present.
11.
By defining the offence of torture as distinct from common assault or other crimes, the
Committee considers that States parties will directly advance the Convention’s overarching aim of
preventing torture and ill-treatment. Naming and defining this crime will promote the Convention’s
aim, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special
gravity of the crime of torture. Codifying this crime will also (a) emphasize the need for appropriate
punishment that takes into account the gravity of the offence, (b) strengthen the deterrent effect of
the prohibition itself, (c) enhance the ability of responsible officials to track the specific crime of
torture and (d) enable and empower the public to monitor and, when required, to challenge State
action as well as State inaction that violates the Convention.