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