A/HRC/46/26 obligations and standards, torture and ill-treatment are far from being eradicated, and are still practiced in all parts of the world (see A/73/207). 11. The prohibition of torture and ill-treatment requires States to adopt a holistic approach to eradicate, prevent, investigate and prosecute any such abuse, and to ensure adequate and effective reparation to victims and their families. This includes a duty to integrate all these elements into national legislation and policies; applying implementation procedures, such as procedural safeguards, training of law enforcement, and warranting humane conditions of detention; and creating mechanisms of accountability and oversight. The prohibition of torture and ill-treatment applies regardless whether the acts were committed by public officials or other persons acting on behalf of the State, or private persons, and whether by encouraging, ordering, tolerating or perpetrating prohibited acts. 1 The prohibition of illtreatment therefore does not merely create a negative duty on State agents not to engage in such treatment; the State also has positive duties to protect persons under its jurisdiction from acts of private individuals.2 12. In this perspective, besides the obligation to make torture a specific crime under national criminal law, including the exclusion of statements obtained under torture and abiding by the principle of non-refoulement, States have a further duty to conduct prompt, impartial and effective investigations whenever there are reasonable grounds to believe that torture or ill-treatment may have been committed. Such investigations should be carried out by independent and qualified individuals with a view to determining the nature and circumstances of the alleged acts, establishing the identity of those responsible, ensuring their prosecution and, if proven guilty, imposing criminal penalties commensurate with the gravity of the crime without any possible statute of limitations. 13. Some States have tried to justify torture or ill-treatment based on the treaty exception of “lawful sanctions”.3 Any such “lawful sanctions” should, however, be interpreted in terms of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the general principle of international law, expressed in the Vienna Convention on the Law of Treaties, that a State “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.4 In this regard, the Special Rapporteur and previous mandate holders have established that certain practices, including prolonged solitary confinement and corporal punishment, could not be considered lawful sanctions (see A/66/268 and A/HRC/13/39/Add.5). Furthermore, some conditions and practices are often associated with or conducive to torture and ill-treatment, including, for example, criminal justice systems that are overreliant on confessions as the primary source of evidence, and therefore are at a higher risk of using coercive interrogation techniques with a view to extracting forced confessions or testimonies (A/71/298, para. 38). Also, in systems where corruption is widespread, torture and ill-treatment are likely to be prevalent (see A/HRC/40/59). 14. In evaluating the effectiveness of States’ cooperation with the Special Rapporteur, due consideration should be given to the fact that such effectiveness should be measured in terms of ensuring States’ compliance, in practice, with the prohibition of torture and ill-treatment and with the obligations of prevention, investigation, prosecution and redress derived from that prohibition. 2. Mandate of the Special Rapporteur 15. Following the adoption of the Convention against Torture by the General Assembly in its resolution 39/46 of 9 December 1984, which represented the universal recognition of the destructive effect of torture and ill-treatment to humanity and the particular need to take collective action to eradicate and prevent such acts, the Commission on Human Rights adopted, at its forty-first session, resolution 1985/33, by which it appointed for the first time 1 2 3 4 Human Rights Committee, general comment No. 20 (1992), para.13. Human Rights Committee, general comment No. 31 (2004), para. 8. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1. Vienna Convention on the Law of Treaties, art. 27. 3

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