A/75/179
and purposefully inflicted, fail to meet the required threshold of “severity” (see
A/73/207, para. 45). A strong trivializing effect is also achieved by States avoiding or
preventing the prosecution and punishment of torture and ill-treatment or introducing
justifications or statutes of limitations for such crimes or granting amnesties a nd
pardons to perpetrators. 43
54. In practice, States have adopted policies, underinclusive definitions or
interpretations, legislation and judgments trivializing a broad range of conduct involving
torture and ill-treatment, including coercive interrogation, police brutality, excessive use
of force, violent deterrence of migrants, gender-based violence, psychological torture,
cyberharassment and domestic violence. By granting impunity for such abuse, States
overtly discredit the universal, absolute and non-derogable prohibition of torture and illtreatment, violate their legal obligations, belittle the gravity of the crimes and actively
suppress the moral dilemma arising from such practices. In practice, the resulting
expectation of impunity consolidates public and institutional complacency and
encourages the continued proliferation of torture and ill-treatment.
55. Furthermore, States routinely trivialize the seriousness of the concerns raised
by international human rights mechanisms, either by failing to respond or by adopting
an inappropriately formalistic, dismissive or aggressive response. Paradoxically,
some States have bilaterally suggested that the Special Rapporteur “trivialized” the
legal definitions of torture and ill-treatment by including within their scope such
widespread practices as the deterrence of migrants, domestic violence and public
mobbing. Most alarmingly, however, three permanent members of the Security
Council, which should be expected to honour their privileges through lea dership by
example, have adopted an overtly hostile stance towards international human rights
mechanisms. Thus, the United States of America has not only officially withdrawn
from the Human Rights Council, but also threatened staff of the International
Criminal Court with sanctions for any criminal investigation against personnel of the
United States, 44 China has called for special procedures mandate holders to be held
“accountable” for “misconduct”, condemning their official communication of human
rights concerns as “nonsense” that “severely infringed upon China’s sovereignty,
interfered in its internal affairs and flagrantly violated the Charter of the United
Nations” 45 and the United Kingdom of Great Britain and Northern Ireland has
repeatedly dismissed official communications and reports by Special Rapporteurs as
“inflammatory”, “political”, “biased” and “interfering” with the British judiciary. 46
2.
Utilitarian justification
56. Although international law leaves no doubt as to the fact that the prohibition of
torture and ill-treatment is absolute and non-derogable, recent history is replete with
attempts at justifying such abuse based on utilitarian “exceptions” (art. 2 (2) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
__________________
43
44
45
46
20-09728
Office of the United Nations High Commissioner for Human Rights, “Torture is to rture, and
waterboarding is not an exception – UN expert urges the US not to reinstate it”, 30 January 2017;
Communications: AL ISR 7/2018 of 31 January 2018; OL GBR 6/2020 of 15 June 2020;
AL GBR 4/2019 of 19 August 2019.
United States of America, Executive Order No. 13928 of 11 June 2020.
Response by China of 26 June 2020 to Office of the United Nations High Commissioner for
Human Rights, “UN experts call for decisive measures to protect fundamental freedoms in
China”, 26 June 2020, available at www.china-un.ch/eng/hom/t1792660.htm.
See A/HRC/41/39/Add.3; Official complaint to the Secretary-General of the United Nations by
Grant Shapps, Minister and Member of Parliament of t he United Kingdom of Great Britain and
Northern Ireland (11 September 2013); Foreign Secretary of the United Kingdom, reacting on
Twitter on 31 May 2019 to Office of the United Nations High Commissioner for Human Rights,
“UN expert says ‘collective persecution’ of Julian Assange must end now”, 31 May 2019,
available at https://twitter.com/Jeremy_Hunt/status/1134373848290353152?s=20 .
17/25
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