A/75/179
I. Worldwide discrepancy between prohibition and prevalence
of torture and ill-treatment
1.
Today, 75 years after the end of the Second World War and the establishment of
the United Nations, hardly any norm of international law commands as much
consensus and authority as the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment. It is universally recognized as absolute and
non-derogable. It protects all human beings without discrimination and in all situations
without exception, it cannot be restricted even in war and other situations of public
emergency, and any contradicting legislative, administrative or judicial act is
inherently unlawful. States must prevent torture and ill-treatment throughout their
jurisdiction, they may not transfer anyone to another jurisdiction where they may be
exposed to torture or ill-treatment and they may not use any information obtained
through such abuse. In criminal law, violations of the prohibition of torture and
ill-treatment invariably figure among the gravest offences, including war crimes and
crimes against humanity, and must be investigated and prosecuted as a matter of
universal jurisdiction.
2.
In democratic societies governed by the rule of law and the separation of
powers, any practice of torture or ill-treatment should be prevented or repressed
through prompt and effective judicial or disciplinary oversight, under the critical
scrutiny of an informed public empowered by a free and independent press. That
expectation is based on the presumed presence, within government institutions, media
organizations and the general public, of a large majority of “active bystanders”, who
will ensure oversight and accountability through rational dec ision-making guided by
law, morality and the public interest.
3.
In practice, however, institutional, procedural and democratic safeguards tend to
be far less effective than expected. Although torture and ill-treatment remain pervasive
in all regions of the world (see A/73/207), the investigation and prosecution of such
abuse remains comparatively rare. Even in the face of compelling evidence,
disciplinary or judicial repression tends to be exceptional, media interest muted or
short-lived and public complacency widespread, not only under authoritarian regimes,
but also in liberal democracies. Depending on the context, there may be acquiescence
to a range of such abuse, from alleged war crimes, police brutality, coercive
interrogation and punitive ill-treatment to deterrent, discriminatory or persecutorial
measures taken against dissidents, migrants and marginalized communities, or various
forms of corruption, economic exploitation and domestic violence.
4.
That assessment is consistent with the observations made by the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
Nils Melzer, in the exercise of his mandate. Throughout his thematic research, country
visits and individual communications, the Special Rapporteur has consistently found
that: (a) all States, to a greater or lesser extent, are plagued by insufficient
governmental transparency and accountability; (b) those shortcomings undermine the
effective prevention, investigation, prosecution and redress of torture and
ill-treatment; and (c) in all regions of the world, there is widespread public and
institutional complacency with regard to governmental secrecy and impunity and the
resulting risks and prevalence of torture and ill-treatment.
5.
In an attempt to better understand the root causes of the pervasive failure of
current governance systems to eradicate torture and ill-treatment, the Special
Rapporteur has conducted extensive multidisciplinary research and stakehol der
consultations, including through an open call for contributions by questionnaire. 1 In
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1
20-09728
See www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/CallGA75.aspx .
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