1.3.1 The absolute nature of the prohibition of torture
and ill-treatment
UN TREATY BODIES
1
– ICCPR
Article 4(2) ICCPR explicitly provides that the State may not derogate from the
right not to be subjected to torture or other ill-treatment under Article 7, even
in times of public emergency. The HRC emphasised this point in its General
Comment on Article 7, observing that “no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including
those based on an order from a superior officer or public authority.”118
– UNCAT
No derogation is possible to any of the provisions of UNCAT, Article 2(2) of
which provides:
“No exceptional circumstances whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency, may be
invoked as a justification of torture.”
This provision is complemented by Article 2(3), which provides that orders
from a superior cannot be invoked to justify torture. As discussed above, the
offence of torture cannot be the subject of defences,119 a statute of limitations,
or an amnesty. The prohibition is therefore absolute.
Efforts by some States to justify torture and ill-treatment as a means to protect
public safety or avert emergencies prompted the Committee against Torture to
reiterate the absolute nature of the prohibition in a statement adopted following the events of 11 September 2001,120 in its Concluding Observations to States
Parties,121 and in the case Agiza v Sweden, in which the Committee emphasised
that “the Convention’s protections are absolute, even in the context of national
security concerns.”122 Furthermore, in its General Comment No. 2, the Committee stressed that the provisions of the UNCAT apply wherever a State Party
exercises de jure or de facto control.123
HRC, General Comment No. 20, 1992, §3.
See, further, CAT, Concluding Observations on the UK, UN Doc. CAT/C/CR/33/3, 2004,
§4(a)(ii) and 5(a).
120
UN Doc. A/57/44, 17 May 2002, §§17–18.
121
See, for example, CAT, Concluding Observations on the USA, UN Doc. CAT/C/USA/C/2,
2006, §14–15, where the CAT reiterated that the UNCAT applies in times of war, and on territory over which the State Party exercises de facto control,
122
Agiza v Sweden (2005), op. cit., §13.8.
123
CAT, General Comment No. 2, §16.
118
119
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