private persons.385 Additionally, the Committee has expressed concern about states’ failure to proscribe domestic violence.386 In the counter-terrorism context, this issue links directly with impunity and the positive obligation on behalf of the state to ensure that law and procedures exist to guarantee that prosecutions can and do take place for ill-treatment. As part of these positive obligations, all claims of torture, inhuman or degrading treatment must be properly investigated by an independent tribunal.387 Investigation of claims of ill-treatment The type of investigation required to satisfy the obligations in relation to protection from torture is the same as that required for right to life. As such: • • • • • • it must be carried out by an independent body in public; it must be thorough, rigorous and prompt; it must be capable of imputing responsibility; it must enable effective involvement of the victim and their next-of-kin; there need to be proper and effective procedural safeguards; the investigation should be capable of leading to the identification and punishment of those responsible; and • it must be capable of bringing perpetrators to justice. The criteria will not be met where there has been an inadequate forensic medical examination by medical professionals, brief or incomplete medical reports, and failure to take photographs or make analyses of marks on the body. Failure to investigate allegations of torture or inhuman and degrading treatment suggests official tolerance and therefore this may show systemic failure in protecting against torture. The Human Rights Committee has stated “the right to lodge complaints against maltreatment prohibited by Article 7 must be recognized in domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective.”388 The Istanbul Protocol also spells out the principles for the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment.389 385 Op. cit., note 336, HRC, General Comment No. 20, para. 13. 386 See HRC, Concluding Observations: Yemen, doc. CCPR/CO/84/YEM, 9 August 2005, para. 12 and HRC, Concluding Observations: Yemen, doc. CCPR/CO/75/YEM, 26 July 2002, para. 6. 387 “[…] Where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible […] If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance […] would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity”, op. cit., note 343,ECtHR, Assenov and Others v. Bulgaria, para. 102. 388 Op. cit., note 336, HRC, General Comment No. 20, para. 14. See also HRC, Herrera Rubio v. Colombia, Communication No. 161/1983, doc. CCPR/C/31/D/161/1983, 2 November 1987, paras. 10.2-10.5. 389 UN, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York and Geneva 2004). para. 73-117. 136 Countering Terrorism, Protecting Human Rights