A/77/502 having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 31. Article 1 (1) represents the dominant definition accepted by the world’s leading human rights bodies and courts, even if it is not the only international legal definition. Whereas certain modifications have been required to adapt that definition to specific contexts or for specific crimes, such as war crimes or crimes against humanity, 16 the essence of the definition has remained unchanged and unchallenged. A consensus definition of torture can be lauded as a successful achievement of the international community. 32. Perpetrated by those with power against those without it, torture and other ill treatment are examples of an abuse of power or authority. They involve exercising ultra vires authority over its victims, rendering them powerless. However, powerlessness is not a legal criterion to establish torture as a definitional matter; rather, it is implicit in the observation of what is actually taking place when someone is put under the custody or control of an officer of the State and subjected to this unlawful conduct. 33. International law calls for a distinction between torture and other forms of ill treatment and punishment. As torture carries a “special stigma”, 17 the threshold for torture should be respected and reserved for the most heinous of crimes; unfortunately, such cases are not in short supply. In practice, however, navigating the boundaries between torture, on the one hand, and other forms of ill-treatment, on the other, can be difficult. 18 Making a distinction is nonetheless important and is most relevant when dealing with criminal activity, as the penalty must fit the crime. 34. Whether a particular harm amounts to torture often turns on factual, rather than legal, factors. Regrettably, we have not yet reached the limits of the deliberate or gratuitous ways or means by which public officials and Governments perpetrate torture, and forms of torture or inhuman treatment or punishment may never be fully elaborated. For this reason, the severe pain or suffering threshold is a dominant element of the definition of torture. 19 The definition of “torture”, and its constituent elements, will be examined in more detail in the second report of the Special Rapporteur, on national criminalization, investigation and prosecution of torture and other ill-treatment. 35. The international community has spoken and repeatedly denied any excuses for torture. 20 While State necessity (or State preservation) as a doctrine may legitimize otherwise unlawful acts in certain carefully circumscribed circumstances, the doctrine is never applicable against peremptory norms of international law from which no __________________ 16 17 18 19 20 10/17 See International Tribunal for the Former Yugoslavia, Prosecutor v. Kunarac et al., IT-96-23-T and IT-96-23/1-T, Judgment of 22 February 2001, para. 470. See also International Criminal Court, Elements of Crimes, relating to arts. 7 (1)(f), 8 (2)(a)(ii) -1 and 8 (2)(c)(i)-4. European Court of Human Rights, Ireland v. United Kingdom, Application No. 5310/71, Judgment of 18 January 1978, para. 167; European Court of Human Rights, Selmouni v. France, Application No. 25803/94, Judgment of 28 July 1999, para. 96. Human Rights Committee, general comment No. 20 (1992), para. 4; Committee against Torture, general comment No. 2 (2007), para. 3. International Tribunal for the Former Yugoslavia, Prosecutor v. Kvočka et al., IT-98-30/1-T, Judgment of 2 November 2001, para. 142, which states: “the severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences”; and European Court of Human Rights, Cestaro v. Italy, Application No. 6884/11, Judgment of 7 July 2015, para. 179. See, most recently, General Assembly resolution 74/143. 22-22673