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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.97This is a helpful starting point, but it is not without its shortcomings. For example, as Michael Davis observes, “an illegal organization, such as the mafia, is, without official ‘consent or acquiescence’as capable of torture as any government.”98Even though Mafiosi or gang thugs will never be brought before the International Criminal Court for their actions, they are still capable of torture. The crime of torture is not determined by who performs the action, but qualities inherent to the action itself. Thus, we must enquire as to which qualities of the action will constitute torture. 96The convention is in fact only effective as a convention against torture because other cruel, inhuman, or degrading treatments”occur only in the title of the document, and are never defined. 97United Nations, ‘Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, No. 24841, 1987, Article 1. 1, <-English.pdf>. 98Michael Davis, ‘Justifying Torture as an Act of War’, 189 in Larry May (ed.), War: Essays in Political Philosophy, (Cambridge: Cambridge University Press, 2008).
162 The UN definition suggests that what constitutes torture is the severity of the pain or suffering that is inflicted in combination with the reasons for which the pain is inflicted; reasons which may include intelligence gathering, punishment, intimidation and coercion, or “any reason based on discrimination.”However, not all pain or suffering for these purposes can constitute torture. After all, criminals suffer loss of their freedom when they are imprisoned as punishment for their crimes, but criminal imprisonment should not be considered torture. The amount, or intensity of the pain and suffering must meet a certain threshold before the label of torture can be applied. So emerges a deeper difficulty with the UN definition: the fact that by identifying torture as the intentional infliction of severepain or suffering, one implicitly condones inflictions of less than severepain or suffering. Here we enter a realm stifled by ambiguity. For example, how serious is the suffering inflicted on a prisoner who is forced to sleep naked on the cold floor? The treatment, although inhumane and painful, may not fit the legal definition of torture and therefore may not violate an individual’s ‘right not to be tortured.’ How should “severe pain and suffering”be understood? Two possibilities emerge: either (i) the degree of suffering inflicted, or (ii) the quantity of pain one endures. If (i), certain types of suffering will always constitute torture; regardless of how long and short they go on for. This approach will see torture as a line in the sand which delineates a set of actions that are so severe in the level pain and suffering they inflict as to constitute torture. (ii) is more flexible