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Security of Mankind, prepared by the International Law Commission. It is now
generally accepted that the prohibition of torture is a peremptory norm which
under no circumstances may be encroached upon.
11.
With regard to those States which have not ratified the two conventions
which contain the prohibition of torture (the 1966 International Covenant on
Civil and Political Rights and the 1984 Convention against Torture), the
Special Rapporteur is the only available mechanism; the number of States which
have ratified neither convention is still regrettably high.
12.
More important than the difference in "geographical" scope, however, is
the difference in character between the various mandates. The treaty-based
bodies (Human Rights Committee and Committee against Torture) monitor the
compliance of the States parties with their treaty obligations; because of the
far more detailed provisions of the Convention, reports to be submitted
periodically by the parties have to contain more information than reports
submitted under the International Covenant. Under both, the Committee can
also deal with individual complaints, whenever its competence to do so is
recognized by the States concerned. Finally, the Committee against Torture is
entitled to carry out an inquiry in cases of a systematic practice of torture
whenever its competence to do so is not explicitly excluded. In all these
cases, the essential task of the mechanism is to determine whether a State
party is complying with or has complied with its obligations under the treaty.
Its function can therefore be characterized as quasi-judicial. If it comes to
the conclusion that a treaty obligation has been violated, it gives its view
as to whether the State party is responsible for the violation. A State is
not responsible as long as it is in a position to redress a wrongful act
committed by its organs. It is exactly for that reason that an individual
complaint is not admissible if the local remedies have not been exhausted
unless the Committee concludes that these local remedies are futile. The
inevitable consequence of the need to exhaust local remedies is that a case of
torture normally will be considered by the Committee years after it has been
committed. Its view will be relevant for the question of whether the State
concerned is under an obligation to pay compensation.
13.
If we look at the Special Rapporteur's mandate we see a completely
different picture. According to the mandate as formulated in the resolution
which established it (resolution E/CN.4/1985/33), the Special Rapporteur has
to report to the Commission, a body composed of government representatives, on
"his activities regarding the question of torture, including the occurrence
and the extent of its practice, together with his conclusions and
recommendations".
14.
In order to be able to report on the occurrence and extent of the
practice of torture, he is entitled to receive information from Governments,
intergovernmental and non-governmental organizations. The greater part of the
information provided by non-governmental organizations deals with specific
cases of alleged torture. He (like other thematic mandates) can bring this
information to the attention of the Government concerned and ask for its
comments. When doing so, as well as when reporting on this correspondence to
the Commission, he does not take a stand on whether such allegations are
well-founded. He merely requests the Government to look into the matter and
to see to it that, if the outcome of the inquiry confirms that the allegation