Part I: Prohibition of torture: The legal background 3. Other cruel, inhuman or degrading treatment As outlined previously, for an act to be deemed torture under the Convention against Torture, it should include three cumulative elements: • the intentional infliction of severe mental or physical suffering • by a public official, who is directly or indirectly involved • for a specific purpose. This definition raises the question of how to classify and respond to acts that fall short of satisfying all three criteria. For instance, what about an act that is not inflicted “intentionally” but occurs because of negligence? What about an act that does not occur for a specific purpose? What about an act that inflicts pain or suffering not considered “severe”? In these situations, the prohibition of other forms of cruel, inhuman or degrading treatment or punishment may apply. As with torture, this prohibition is also absolute and non-derogable. Article 16.1 of the Convention against Torture requires that “each State Party shall undertake to prevent (…) other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Therefore, any act that falls short of the definition of torture because it lacks one or more of the criteria may still be covered under the prohibition outlined in article 16 of the Convention against Torture.31 Governments and officials sometimes assume that, because these forms of cruel, inhuman or degrading treatment or punishment do not come within the definition of torture, there is some leeway in whether they may be permitted in extreme circumstances. Such assumptions are completely wrong. Under international law, there is no leeway regarding the prohibition of all forms of cruel, inhuman or degrading treatment or punishment. International law prohibits all such treatment, in all circumstances. This is true under international human rights law and international humanitarian law, which prohibits the ill-treatment of persons deprived of their liberty everywhere and at all times. In practice, the distinction between torture and ill-treatment is often not clear. Violence against women, girls and LGBTI persons is often regarded as ill-treatment, although it would more appropriately be identified as torture. The pain and suffering experienced by women, girls and LGBTI persons is often downplayed, due to gender-stereotypes and deep-rooted discriminatory social norms. It is important that a gender-sensitive and intersectional lens to torture and ill-treatment “guards against” this tendency.”32 The totality of the individual’s circumstances should be examined when assessing the level of pain and suffering. This includes how other intersecting factors and identities influence the way a person experiences torture, and the full impact on their physical and mental wellbeing, in the short and long-term. 31 See Kostadin Nikolov Keremedchiv v. Bulgaria, Committee against Torture, Communication 257/2004, views adopted on 11 November 2008. 32 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the Human Rights Council (5 January 2016) (A/HRC/31/57), para. 9. 25