A/HRC/13/39/Add.5
(f)
Involvement of a public official/consent/acquiescence
39.
The Convention requires the involvement of a public official in order to qualify the
abuse as torture or CIDT. Article 1 states that severe pain or suffering has to be “inflicted
by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity”. The Convention goes beyond the traditional concept
of State responsibility and includes acts which are not directly inflicted by the State
officials, but executed with their active or passive agreement or were possible to occur due
to their lack of intervention, which would have been possible. Under this extended
responsibility, inter-prisoner abuse may fall under the definition of torture. Female genital
mutilation, domestic violence and trafficking in human beings may also be covered, as
elaborated in my report to the Human Rights Council in 2008.16
2.
Special position in international law
40.
The particular severity of torture is reflected in the special position its prohibition
takes in international law. The prohibition of torture is one of the few absolute and nonderogable human rights, a standing shared only with the prohibition of slavery, slave trade,
servitude, and the retroactive application of criminal law. Article 2(2) CAT holds in
unambiguous terms that “[n]o 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.” Its absolute nature is further embodied in article 7
CCPR.
(a)
Absolute prohibition
41.
The absolute nature of the prohibition of torture means that the right to personal
integrity and dignity — the freedom from torture — cannot be balanced against any other
right or concern. As such, the prohibition of torture goes further than the protection of the
right to life which may be balanced, such as in the case of the lawful killing of a hostagetaker in order to rescue his hostages. Torture must not be balanced against national security
interests or even the protection of other human rights. No limitations are permitted on the
prohibition of torture.
(b)
Non-derogable prohibition
42.
Article 2(2) CAT stipulates that even under exceptional circumstances such as “war
or a threat of war, internal political instability or any other public emergency”, the
prohibition of torture remains untouchable.17 According to article 4 (2) CCPR, States
parties are not permitted to derogate from their obligation to respect and ensure the absolute
prohibition of torture even in the times of emergency or armed conflict. Furthermore, the
order from a superior or public authority may only be invoked as a mitigating factor but
never as a justification of torture in domestic criminal proceedings.
(c)
Challenges
43.
Without doubt, the special position of the prohibition of torture is among its most
challenged features, including since the so called “war on terror” was proclaimed. “Ticking
bomb scenarios”, no matter how likely or not, also appear to have become the guiding
cognitive frame when it comes to upholding the protection of human dignity.
16
17
A/HRC/7/3.
The impermissibility of derogations is further included in regional human rights treaties such as
article 15(1) ECHR and article 27 ACHR.
15
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