A/HRC/37/50 time and in any place whatsoever”9 can be derived directly from a general principle of law, namely “elementary considerations of humanity, even more exacting in peace than in war.”10 No exceptional circumstances whatsoever, whether a state or threat of war, internal political instability or any other public emergency, including when triggered by large and sudden movements of migrants, may be invoked as a justification for torture and ill-treatment.11 Today, the prohibition of torture has attained undisputed peremptory status (jus cogens).12 12. In order to give practical effect to the prohibition, international law establishes both positive and negative obligations for States. In positive terms (duty to ensure), States must proactively take effective legislative, administrative, judicial or other measures to prevent acts of torture and ill-treatment in any territory under their jurisdiction and whenever they exercise, directly or indirectly, de jure or de facto effective control over any person wherever located in the world.13 This duty requires not only the prevention of violations on the part of State officials, but also includes a well-established due diligence obligation of States to prevent mistreatment by private actors, or by organs of third States operating within their jurisdiction.14 13. In negative terms (duty to respect), States must refrain from engaging in, or knowingly contributing to, any act of torture or ill-treatment, whether through acts or omissions, whenever they exercise their power and authority, including each time they bring a person within their jurisdiction by exercising control or influence over a place, person, or process outside their borders. Moreover, under both customary and treaty law, States are under an absolute and non-derogable obligation not to expel, return or extradite any person, regardless of their entitlement to refugee status or subsidiary protection, to another State's jurisdiction or any other territory where there are substantial grounds for believing that they would be in danger of being subjected to torture or ill-treatment (non-refoulement).15 On the extraterritorial application of the prohibition of torture and ill-treatment more generally, the Special Rapporteur endorses and reiterates the conclusions reached by his predecessor.16 14. Regarding the context of migration it should be specifically recalled that States must respect and ensure the right to be free from torture and ill-treatment without any discrimination,17 and that the intentional infliction of severe pain or suffering "for any reason based on discrimination of any kind", including based on migration status, invariably amounts to torture, regardless of whether it is inflicted by or at the instigation of State officials themselves, or merely with their consent or acquiescence.18 15. Furthermore, in all their decisions, acts and omissions, States must interpret and perform their international obligations in good faith,19 that is to say, in compliance with both the letter and the spirit of the law. With regard to the absolute and non-derogable right of migrants not to be subjected to torture and ill-treatment, this entails that States cannot lawfully engage in any activity, or conclude any agreement with other States or non-State actors, the foreseeable consequences of which would undermine or defeat the very object and purpose of that right, or of any of the ancillary rights designed to give it effect in practice, such as the rights to leave any country or territory, to seek and enjoy asylum, not to be 9 10 11 12 13 14 15 16 17 18 19 Common Art.3 Geneva Conventions (1949). ICJ, Nicaragua_v._USA(1986), pp.14, 112. Art.2.2. UNCAT. ICJ, Belgium_v._Senegal(20.07.2012), §99; HR Council Resolution 8/8; A/RES/72/163. Art.2(1) UNCAT; CAT/C/GC/2(24.01.2008), §§3, 16; CCPR/C/21/Rev.1/Add.13(26.05.2004), §10. CAT/C/GC/2(24.01.2008),§§17-19; IACtHR,Velásquez_Rodríguez_v._Honduras, Jgmt_29.07.1988; ECtHR, Z.et.al_v.UK_(No._29392/95), Jgmt_10.05.2001, §73; ACHPR, Human_Rights_NGO_Forum_v._Zimbabwe (No.245/2002),_15.05.2006), §143. Art.3 UNCAT; Art.7 ICCPR. A/70/303. Articles 2(1), 7 and 26 ICCPR; CAT/C/GC/2(24.01.2008), §§7, 20. Art.1 UNCAT. Art.26 and 31(1) VCLT. 5