A/HRC/46/26
of the United Nations” or “interference with national sovereignty”. Instead of addressing the
allegations, they accuse or denigrate mandate holders as “so-called” experts; there have even
been calls for them to be “held to account” simply for exercising their mandate in good faith
and in often very difficult circumstances.
67.
Should States have any concerns with the conduct of a mandate holder, such issues
should be addressed directly with the mandate holder in the spirit of constructive dialogue.
Otherwise, any direct or implied accusations or threats against their integrity and
independence are incompatible with both human rights law and the purposes and principles
of the Charter of the United Nations.
(b)
Unsubstantiated denial
68.
A very widespread pattern of “partial cooperation” with the mandate holder involves
unsubstantiated denial, whereby Governments reject or dismiss allegations relating to an act
or risk of torture or ill-treatment without providing credible evidence, explanations or
counterarguments. At first sight, these Governments appear to be fully cooperating with the
mandate holder, stressing their appreciation for the work of the Special Rapporteur and
reaffirming their unwavering commitment to the prohibition of torture and ill-treatment,
often by reference to detailed explanations of their national normative and institutional
framework. At the same time, allegations relating to an act or risk of torture or ill-treatment
are rejected or dismissed as baseless, erroneous, malicious or politically motivated. While
these responses may differ greatly in terms of form, tone and style, all of them ultimately fail
to respond to the questions asked by the Special Rapporteur or to take effective measures of
prevention, investigation, prosecution or redress as recommended by the mandate holder and
required under international law.
69.
International law unequivocally demands that States conduct a prompt and impartial
investigation whenever there are “reasonable grounds to believe” that an act of torture or illtreatment has been committed, or is likely, within their jurisdiction. Without any doubt,
allegations transmitted by the Special Rapporteur amount to such “reasonable grounds”, thus
depriving Governments of any political discretion as to whether to investigate these
allegations. Governments failing to investigate allegations transmitted by the Special
Rapporteur, and, if confirmed, to take protective or corrective measures not only fall short of
the standard of “full cooperation” set by the Human Rights Council, but also breach their
duties of prevention, investigation, prosecution and redress under the absolute and nonderogable prohibition of torture and ill-treatment under international law.
(c)
Obstructive formalism
70.
Another very common pattern of “partial cooperation” with the mandate holder
involves obstructive formalism, whereby Governments decline to provide the requested
information or to take the recommended protective or corrective measures on the basis of
claims of national security, secrecy, policy or constitutional order, or on other excessively
formalistic arguments. Most commonly, Governments may claim that they cannot interfere
with or comment on an ongoing judicial or administrative proceeding involving the alleged
victim, or that, as a matter of national legislation or policy, they cannot disclose the requested
information. Other excuses may be that evidence provide by the Special Rapporteur in not
sufficient to initiate an investigation. Here too, Governments generally try to reassure the
Special Rapporteur through sweeping reaffirmations of their unwavering commitment to the
prohibition of torture and ill-treatment, including by reference to sophisticated national
normative and institutional frameworks. Ultimately, however, they fail to respond to the
questions asked by the Special Rapporteur or to take effective measures of prevention,
investigation, prosecution or redress as recommended by the Special Rapporteur and required
under international law.
71.
While the Special Rapporteur appreciates the importance and sanctity of the national
normative and institutional order, he would like to recall that, as a matter of universally
binding international law, the prohibition of torture and ill-treatment, and the international
legal obligations derived from it, are not limited to the executive branch of Government but
apply to the State as a whole, and to all its public authorities and institutions, including the
courts, prosecution and intelligence services, regardless of their institutional or operational
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents