three important features, which are probably held in
common with the other general principles protecting
fundamental human rights.
(a)
The Prohibition Even Covers Potential Breaches.
148. Firstly, given the importance that the international
community attaches to the protection of individuals from
torture, the prohibition against torture is particularly
stringent and sweeping. States are obliged not only to
prohibit and punish torture, but also to forestall its
occurrence: it is insufficient merely to intervene after the
infliction of torture, when the physical or moral integrity
of human beings has already been irremediably harmed.
Consequently, States are bound to put in place all those
measures that may pre-empt the perpetration of torture.
As was authoritatively held by the European Court of
Human Rights in Soering, international law intends to bar
not only actual breaches but also potential breaches of the
prohibition against torture (as well as any inhuman and
degrading treatment). It follows that international rules
prohibit not only torture but also (i) the failure to adopt the
national measures necessary for implementing the
prohibition and (ii) the maintenance in force or passage of
laws which are contrary to the prohibition.
149. Let us consider these two aspects separately.
Normally States, when they undertake international
obligations through treaties or customary rules, adopt all
the legislative and administrative measures necessary for
implementing such obligations. However, subject to
obvious exceptions, failure to pass the required
implementing legislation has only a potential effect: the
wrongful fact occurs only when administrative or judicial
measures are taken which, being contrary to international
rules due to the lack of implementing legislation, generate
State responsibility. By contrast, in the case of torture, the
requirement that States expeditiously institute national
implementing measures is an integral part of the
international obligation to prohibit this practice.
Consequently, States must immediately set in motion all
those procedures and measures that may make it possible,
within their municipal legal system, to forestall any act of
torture or expeditiously put an end to any torture that is
occurring.
150. Another facet of the same legal effect must be
emphasised. Normally, the maintenance or passage of
national legislation inconsistent with international rules
-25-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents