58 United Nations Convention Against Torture and its Optional Protocol control of the State party’s authorities’.203 Consequently, the Committee concluded that the respective acts constituted torture. 119  Similar findings were made by the IACHR in Rosendu Cantú et al v Mexico,204 the Inter American Commission in Gayle v Jamaica,205 as well as by the ECtHR in Cestaro v Italy and Bartesaghi Gallo and Others v Italy.206 In all of these cases, courts found that victims were subjected to severe pain and suffering, while being under the direct control of the State party, even though that control was exercised outside of a detention context. 120  It follows that torture, as the most serious violation of the human right to personal integrity, presupposes a situation of powerlessness of the victim which usually, but not only, means deprivation of personal liberty.207 The Convention does not generally and absolutely prohibit the intentional infliction of severe pain or suffering by a public official. If a police officer, for example, deliberately shoots into the legs of a person in order to effect a lawful arrest or prevent the escape of a person lawfully detained, or uses physical force with truncheons, pepper spray, and other weapons for the purpose of breaking up an unlawful demonstration or quelling a riot, he or she might intentionally inflict severe pain on the person concerned. Whether the use of force amounts to cruel, inhuman or degrading treatment depends on the proportionality of the force applied in relation to the lawful goal to be achieved. As soon as the person is, however, arrested or in a similar way under the direct power or control of the police officer the further use of physical force for the purpose of intimidation, punishment or discrimination will be qualified as torture. 121  Even though the prohibition of both torture and other forms of cruel, inhuman or degrading treatment are laid down in international human rights law as absolute human rights, the principle of proportionality nevertheless might apply as we have seen in the examples cited above. But it only applies for the purpose of defining the scope of application of the right not to be subjected to cruel, inhuman or degrading treatment, and not for the right not to be subjected to torture. If severe physical or mental pain or suffering is intentionally inflicted for lawful purposes outside the scope of Article 1 in a proportional manner, then this conduct is a justified use of force and by definition does not amount to cruel, inhuman or degrading treatment. If the use of force is not absolutely necessary for achieving such purpose, the treatment might be qualified as degrading, inhuman, or cruel.208 If the same force is applied in a situation of powerlessness for any of the   ibid, para 7.3.   A/​72/​178 (n 99) paras 39–​46, quoting, eg Rosendo Cantú et al v Mexico, Series C No 216 (IACtHR, 31 August 2010) para 118: ‘that rape may constitute torture even when it consists of a single act or takes place outside State facilities . . . because the objective and subjective elements that define an act as torture do not refer to the accumulation of acts or to the place where the act is committed, but rather to the intention, the severity of the suffering and the purpose of the act.’ 205   The intentional and violent beating of a person before their arrest was found to constitute torture by the IACtHR, Michael Gayle v Jamaica (IACtHR, 24 October 2005) paras 59–​64. 206   The ECtHR in Cestaro v Italy and Bartesaghi Gallo and Others v Italy found torture when anti-​globalization protestors were violently punched, kicked, and beaten in a school, where the protestors were sleeping or sitting with their hands raised above their heads, being unarmed and not showing any resistance. See Cestaro v Italy, ECtHR (n 204) paras 170–​90. Bartesaghi Gallo and Others v Italy, ECtHR (n 195) paras 114, 117. 207   See in this sense, eg Burgers and Danelius (n 32) 120; Ingelse (n 90) 211. The US ratified the Convention with the ‘understanding’ that ‘the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender’s custody or physical control’: see above 2.3 on the US ‘understanding’; see also Boulesbaa (n 30) 25ff. See further the definition of torture as a crime against humanity in Art. 7(2)(e) of the ICC Statute: ‘ “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.’ 208   For the difference between these forms of ill-​treatment see below Art 16, 3.1. 203 204 Zach