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Special Rapporteur on torture
16 February 2023
Human Rights Council, 52nd session
Issued by Special Procedures
Torture and inhuman treatment, Special Procedures
In the present report, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Jill Edwards, examines the obligations of States to criminalize, investigate and prosecute acts of torture and other ill-treatment, identifies major challenges standing in the way of impartial, prompt, transparent and effective investigations and presents a range of State practices. The Special Rapporteur places a special emphasis on the participation and protection of victims and witnesses and presents a range of actionable recommendations. The report also presents an overview of the activities of the Special Rapporteur since taking up her mandate on 1 August 2022.
The Special Rapporteur’s forthcoming (and second) report1 aims to study and share a range of domestic legislative, investigative and prosecutorial practices in order to address multiple challenges, impediments and obstacles standing in the way of effective accountability and justice for victims and survivors, and to allow societies to heal and recover. Notwithstanding the growth in the types and range of international venues providing justice to victims of crimes of torture, justice, accountability and reconciliation will only be a meaningful reality when national systems operate and are capacitated to act as the first – or primary – responder. The Special Rapporteur’s report will hone in on the duty to investigate crimes of torture2 at the national level, which starts from establishing all acts of torture as indictable offences in national law, and proceeds through a process of complaints and investigations, and concludes only when a prosecution is completed to final judgment and a punishment is imposed that is commensurate with the gravity of the offence, and victims benefit from a just remedy; or the case is dismissed after an independent and fair procedure.
The widespread and persistent use of torture and other inhuman treatment or punishment is well documented, yet investigations and prosecutions are rare and the collection of statistics remains problematic. A first challenge is that while a growing number of countries have established an explicit crime of torture in national laws, many others still have not legislated to outlaw torture, or their laws do not adequately capture the globally accepted understanding of torture. An absence of a legislative foundation is a problem not just theoretically but very practically, as all else flows from making a clear statement that torture is not tolerated and that all acts of torture will be investigated and prosecuted and perpetrators sentenced in accordance with the law and commensurate with the gravity of the offence. Many countries grant immunities or amnesties for this egregious crime and perpetuate cultures of impunity, others permit statutes of limitations, or have not clearly outlawed defences of superior orders.
Even where laws are in place, there are practical obstacles to launching investigations and prosecutions; meanwhile there are widely inconsistent sentencing laws and practices. Assuring victims’ participation and protection in domestic criminal proceedings is a vital ingredient to a successful investigation and prosecution, especially relevant given the imbalance of power in such criminal cases. The report is interested to learn about a wide range of good practices, including good practices in respect of witness and victim protection schemes, as well as legislation that protects whistleblowers and against reprisals.
On the positive side, the exercise of universal jurisdiction has grown as an important mechanism, alongside developments in evidence documentation and interviewing, mutual legal assistance, and new technologies. The report is interested to learn about good practices in investigations in complex situations, such as evidence gathering during ongoing armed conflict, extraterritorial offences, and the relationship between domestic and international investigations. Key themes throughout the report will include independence and impartiality, promptness, adequacy and effectiveness, accessibility and safety, public scrutiny and transparency and rights and remedies for victims and survivors.
Previous Special Rapporteurs have prepared reports on accountability and impunity3, forensic aspects of investigations4 , and extraterritorial application of the prohibition of torture referring also to investigations5 , which remain informative, albeit they canvassed macro-level challenges and solutions. In contrast, the Special Rapporteur’s report aims to tackle practical challenges and obstacles hindering national investigations and prosecutions, gather good state practices, and develop a set of concrete and implementable recommendations.
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1/ To be presented to the 52nd session of the Human Rights Council.
2/ Most notable has been the development of international criminal law and the associated International Criminal Court, other ad hoc and hybrid tribunals. These venues, however significant, have their limitations, in particular their focus has been on prosecuting the most senior perpetrators, leaving victims of rank-and-file soldiers or public officers without a remedy.
3/ On Impunity A/76/168; A/65/273; on Universal Jurisdiction A/HRC/4/33, and on Reparations A/58/120, paras 29-35.