BEWARE THE GIFT OF POISON FRUIT Absolute Prohibition against Torture The absolute prohibition against torture “entails a continuum of obligations – not to torture, not to acquiesce in torture, and not to validate the results of torture and other cruel, inhuman or degrading treatment”. 23 In supplementing the absolute prohibition provided in the Universal Declaration on Human Rights, various treaties, and in customary international law, articles 1 and 4 of the UNCAT provide that a breach of the obligation is possible both by direct participation and complicity. While complicit liability is defined in a variety of ways in the domestic law of each State, it is not defined in the Convention, but is understood to include wide forms of commission, including incitement, instigation, consent, or acquiescence. Such forms of complicit liability lead to confusion over whether and to what extent executive actors may be individually criminally liable, or cause the State to be responsible, for breaches of the Convention. Without a clear definition for complicity, we should be particularly mindful of the distinction between forms of complicit liability that apply to State responsibility and individual criminal liability. Each is described in more detail below. While most acts of complicity require an action, complicit responsibility by acquiescence perhaps causes the most confusion because it is essentially a passive action supporting, or tacit consent for torture committed by another. In circumstances where principles of State responsibility and individual liability for complicit acts of State agents are insufficient to find a violation, we might instead consider whether some fault should nevertheless be directed to States and their actors under this heading of liability. Among the principal obligations of the prohibition against torture, is the duty not to refoule a person to face a ‘real risk’ of torture overseas. In the case of Soering v UK,24 a landmark judgement of the European Court of Human Rights, the UK sought to return Soering ICJ, Assessing Damage, Urging Action; Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (Geneva, 2009), p.85. 24 ECtHR, Soering v. The United Kingdom (Application no. 14038/88), Judgement, 7 July 1989. 23 22