A/72/178 infliction of pain and suffering by State agents, the aggravat ed threshold of torture is always reached when, additionally, severe pain or suffering is intentionally and purposefully inflicted on a powerless person. Depending on the applicable treaty definition and its contemporary interpretation by the relevant bodi es, either the aggravated threshold of torture may not require that the inflicted pain and suffering be “severe”, or the interpretation of the requirement of severity may have evolved to significantly lower the relevant threshold. 45 D. Extra-custodial scope of the prohibition 34. Mandate holders have consistently maintained that, conceptually, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is not confined to acts carried out against persons deprived of their liberty, but also covers excessive police violence, such as during arrest and the policing of assemblies, or even torture and other cruel, inhuman or degrading treatment or punishment by acquiescence, namely, when States violate their due diligence obligation to combat ill-treatment at the hands of non-State actors, including harmful traditional practices, such as female genital mutilation, domestic violence and trafficking in human beings (A/HRC/13/39, summary. See also A/HRC/28/68/Add.4, para. 27 (protests); A/HRC/31/57, paras. 51-53 (sexual violence); E/CN.4/2006/6, para. 38 (police powers); A/HRC/13/39, para. 61 (arrests); and E/CN.4/1997/7, paras. 122-123 (police brutality)). Similarly, in reference to extra-custodial settings, the Human Rights Council has expressed concern about the use of torture and cruel, inhuman or degrading treatment or punishment against persons exercising their freedoms of peaceful assembly, of expression and of association in all regions of the world (see Human Rights Council resolution 25/38). 35. Indeed, none of the universal or regional human rights treaties prohibiting torture and other cruel, inhuman or degrading treatment or punishment require deprivation of liberty as a requisite element of torture or other ill -treatment. Even article 7 of the Rome Statute of the International Criminal Court (crimes against humanity), which in its definition of torture refers to the victim as being “in the custody or under the control of the accused”, makes no such requirement in relation to other ill-treatment. Similarly, the travaux préparatoires to the Convention against Torture suggest that “detention and similar direct control was meant only to constitute a precondition for the qualification of torture” and not in relation to other cruel, inhuman or degrading treatment or punishment. 46 36. Thus, while the generic concept of cruel, inhuman or degrading treatment or punishment clearly is not limited to ill-treatment inflicted on persons deprived of their liberty, the concept of torture requires that the perpetrator exercise direct physical or equivalent control over the victim and that the victim is incapable of resisting or escaping the infliction of pain or suffering (“powerlessness”). In principle, therefore, the universal customary prohibition of cruel, inh uman or degrading treatment or punishment and, in situations of powerlessness, of torture are fully applicable to the extra-custodial use of force by State agents. __________________ 45 46 14/24 See OHCHR, “Interpretation of Torture”, 2011, p. 8; European Court of Human Rights, Selmouni v. France, Judgment of 28 July 1999, para. 101; and Inter -American Court of Human Rights, Cantoral-Benavides v. Peru, Judgment of 18 August 2000 (Merits), para. 99. Nowak and McArthur, The United Nations Convention against Torture: a Commenta ry, pp. 566-567. 17-12326