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