34/54 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Document Type: Final Report
Date: 2017 Feb
Session: 34th Regular Session (2017 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-02239(E)
Human Rights Council Thirty-fourth session
27 February-24 March 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment*
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Nils Melzer, pursuant to Council resolution 25/13.
In his report, the Special Rapporteur gives an overview of the activities of the
mandate during the reporting cycle, including the country visits carried out by the former
Special Rapporteur, Juan Méndez, up to the end of his tenure on 31 October 2016. The
incumbent Special Rapporteur, who took up his appointment on 1 November, outlines his
working methods, his thematic priorities and his vision for a meaningful anti-torture
advocacy, in close cooperation with existing mechanisms.
* The present document was submitted late to reflect most recent developments.
United Nations A/HRC/34/54
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Activities relating to the mandate .................................................................................................. 3
III. Methodology of the Special Rapporteur........................................................................................ 4
IV. Thematic priorities ........................................................................................................................ 6
A. Reaffirmation, clarification, promotion and development of normative standards ............... 6
B. Torture and other cruel, inhuman or degrading treatment or punishment in police custody
and pretrial detention ............................................................................................................ 8
C. Migration-related torture and ill-treatment ........................................................................... 9
D. Extra-custodial use of force .................................................................................................. 10
E. Torture and ill-treatment by non-State actors ....................................................................... 11
V. Conclusions ................................................................................................................................... 12
I. Introduction
1. The present report has been prepared pursuant to Human Rights Council resolution
25/13. In an addendum (A/HRC/34/54/Add.3), the Special Rapporteur, who took up his
post on 1 November 2016, presents observations made by his predecessor on cases sent to
Governments between 1 December 2015 and 31 August 2016.
II. Activities relating to the mandate
1. Activities carried out by the former mandate holder
2. From 25 January to 3 February 2016, the Special Rapporteur conducted a fact-
finding visit to Mauritania. His findings are presented as an addendum to the present report
(A/HRC/34/54/Add.1).
3. From 29 April to 7 May, the Special Rapporteur conducted a joint fact-finding visit
to Sri Lanka with the Special Rapporteur on the independence of judges and lawyers. The
visit provided a unique opportunity to examine the steps taken towards the implementation
of Human Rights Council resolution 30/1 on promoting reconciliation, accountability and
human rights in Sri Lanka. His findings are presented as an addendum to the present report
(A/HRC/34/54/Add.2).
4. The former Special Rapporteur regretted that his requests for follow-up visits to
Mexico and Morocco were not granted. He was unable to conduct a full-fledged follow-up
visit to Kyrgyzstan, owing to time constraints. His follow-up report on Mexico is presented
as an addendum to the present report (A/HRC/34/54/Add.4).
2. Activities carried out by the current mandate holder
5. On 7 and 8 November 2016, the Special Rapporteur held a series of meetings in
Geneva with a view to increasing cooperation and synergies with existing United Nations
anti-torture mechanisms from the outset of his tenure. He met with staff of the Office of the
United Nations High Commissioner for Human Rights (OHCHR) supporting the
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment and the United Nations Voluntary Fund for Victims of Torture. He also
participated in a private plenary meeting with members of the Committee against Torture.
The Special Rapporteur met with representatives of permanent missions in Geneva and held
a consultation with a large group of Geneva-based civil society organizations active in the
fight against torture.
6. On 17 November, the Special Rapporteur participated in the event marking the tenth
anniversary of the adoption of the Optional Protocol to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, held in Geneva. He
delivered a statement on the triangular relationships between the Optional Protocol,
national preventive mechanisms and his mandate.
7. On 24 November, the Special Rapporteur gave a keynote address at the thirtieth
anniversary forum of the World Organisation Against Torture, held in Geneva, giving
particular emphasis to the vital role of local anti-torture organizations in the fight against
torture.
8. From 28 November to 2 December, the Special Rapporteur conducted his first fact-
finding visit, to Turkey. He expresses his sincere appreciation to the Government of Turkey
for the invitation and for the excellent cooperation extended to him and his team throughout
the mission. At the end of his official visit, the Special Rapporteur welcomed the
authorities’ unequivocal commitment to a zero-tolerance policy on torture, but also
expressed concern about the significant disconnect between policy and reality. Most
notably, he observed that the sweeping security measures taken by the Government in
response to the failed coup d’état of 15 July seemed to have resulted in a general sense of
intimidation and distrust among many segments of the population, which prevented not
only detained persons and their families but also lawyers and doctors and other members of
civil society from initiating or participating in any procedure that might be perceived —
rightly or wrongly — as opposing or criticizing the Government and its officials, including
complaints of or investigations into allegations of torture or other forms of ill-treatment.
9. The Special Rapporteur also observed that some recently adopted legislation and
statutory decrees had created an environment conducive to torture and other forms of ill-
treatment. These included the extension of the period of custody without judicial review to
30 days, the extension of the period without access to a lawyer to five days, the denial of
confidential exchange between inmates suspected of terrorist crimes and their lawyers, and
the introduction of — albeit overturnable — immunity from criminal prosecution for forces
conducting counter-terrorist operations in the south-east.
10. In view of the various concurrent crises in the country, the Special Rapporteur
expressed his sincere solidarity with all segments of the population of Turkey and fully
recognized the Government’s right to protect its citizens and institutions through
extraordinary measures. However, he also reminded the authorities that expedient access to
lawyers and judicial review were indispensable for the prevention of torture and other
forms of ill-treatment. He therefore appealed to the Government to publicly reinforce its
zero-tolerance policy on torture and, in particular, to unequivocally make clear to State
officials at all levels that they were expected and, indeed, obliged to report and investigate
all allegations of torture and to bring perpetrators to justice.
11. The preliminary observations on the visit can be consulted on the OHCHR website;1
a full report will be presented to the Human Rights Council at its thirty-seventh session.
III. Methodology of the Special Rapporteur
12. The Special Rapporteur wishes to express his sincere acknowledgement of and
gratitude for the outstanding work accomplished by his predecessors since the
establishment of the mandate in 1985. Throughout his tenure, he intends to consolidate and
build on their achievements, pursuant to Human Rights Council resolution 25/13 and in
accordance with the Code of Conduct for Special Procedures Mandate-holders of the
Human Rights Council and the Manual of Operations of the Special Procedures of the
Human Rights Council. The Special Rapporteur acknowledges that the mandate is part of a
wider system, and wishes to continue to work in close cooperation with the Committee
against Torture, the Subcommittee on Prevention of Torture, the United Nations Voluntary
Fund for Victims of Torture and other special procedure mandate holders as well as with
regional anti-torture mechanisms, States and civil society actors. He intends to ensure that
the synergies between the guardians of the protection against torture are not only preserved
but, if possible, developed even further.
13. In the course of the past three decades, the mandate has contributed significantly to
the steady development, expansion and consolidation of an impressive institutional and
normative anti-torture framework. This includes, most notably, the growth of a tightly knit
treaty-based system including the Convention against Torture and Other Cruel, Inhuman or
1 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20976&LangID=E.
Degrading Treatment or Punishment and the Committee against Torture, the Optional
Protocol to the Convention and the Subcommittee, national preventive mechanisms in
various countries as well as the United Nations Voluntary Fund for Victims of Torture. It
also includes the development of standard-setting instruments such as the revised United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), the United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (the Bangkok Rules), the Manual on Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (the Istanbul Protocol), the Code of Conduct for Law
Enforcement Officials, the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials and the International Code of Conduct for Private Security Service
Providers. It further includes the establishment of a plethora of courageous, competent and
effective civil society organizations and, not least, an incessant stream of judicial decisions
and resolutions adopted by universal and regional bodies unequivocally condemning any
form of torture and other cruel, inhuman or degrading treatment or punishment.
14. At the same time, the Special Rapporteur cannot ignore a troubling discrepancy
between, on the one hand, the professed consensus opinions, solemn declarations and
commitments made by States at the diplomatic level and, on the other hand, the
disillusioning reality of millions of victims of torture and other cruel, inhuman or degrading
treatment or punishment. Despite more than three decades of dedicated work of the
mandate and countless other international, governmental and non-governmental
stakeholders, torture and other cruel, inhuman or degrading treatment or punishment are
still rampant in most, if not all, parts of the world. The Special Rapporteur observes with
alarm that, since the turn of the century, the rise of transnational terrorism, organized crime
and other actual or perceived threats has given way to an increasing tolerance of violent
political narratives and popular beliefs that not only trivialize torture and other cruel,
inhuman or degrading treatment or punishment, but even promote and incite their use in the
name of national security and the fight against terrorism.
15. The Special Rapporteur feels compelled to recall that today, after a century marked
by two world wars and some of the most outrageous atrocities in human history, thousands
of prisoners, war victims, migrants and other vulnerable men, women and children are still
being abused, exploited, murdered or simply left to die every day in a no man’s land of
indifference; that there are still States openly practising or advocating interrogation
methods based on the infliction of excruciating pain and anguish and on the irreparable
destruction of human beings; that there are still Governments finding no fault in sacrificing
justice for political convenience by choosing not to prosecute officials suspected or known
to have resorted to, ordered, justified or enabled the use of torture and other cruel, inhuman
or degrading treatment or punishment; and that a growing number of States are refusing to
subject their citizens to international criminal jurisdiction even for the most barbarous of
international crimes.
16. In the view of the Special Rapporteur, the absolute prohibition of torture and other
cruel, inhuman or degrading treatment or punishment may well constitute the most
fundamental achievement of mankind, and any tolerance, complacency or acquiescence in
such practices, however exceptional and well argued, will inevitably lead down a slippery
slope towards complete arbitrariness and brute force, a disgrace for all of humanity. During
his tenure, therefore, the primary focus of the Special Rapporteur will be to unequivocally
reaffirm the absolute and universal prohibition of all, and any, forms of torture and other
cruel, inhuman or degrading treatment or punishment; to further clarify the contours and
meaning of these terms in the light of the evolving challenges marking the contemporary
international environment; and to call on State and non-State actors alike to renounce, and
to prevent impunity for, any such practices. The Special Rapporteur intends to complement
these efforts with reports on certain thematic focus areas relevant to the mandate, some of
which are outlined below.
17. In carrying out his mandate, the Special Rapporteur will always endeavour to engage
in an open, respectful and constructive dialogue with States and other international,
regional and non-governmental stakeholders and aim to gain a consolidated understanding
of all relevant perspectives, concerns and challenges before drawing any conclusions or
trying to identify the most suitable manner of action.
IV. Thematic priorities
A. Reaffirmation, clarification, promotion and development of normative
standards
1. Reaffirming the absolute nature of the prohibition of torture and other cruel,
inhuman or degrading treatment or punishment
18. The absolute prohibition of torture and other cruel, inhuman or degrading treatment
or punishment is a core principle of international law. The legal framework around this
subject matter is one of the most developed in international human rights law, and the
particular atrocity of torture is reflected in the distinct position its prohibition takes in
international law. Acts of torture and other ill-treatment are not only prohibited as a matter
of universal and regional treaty law, but the prohibition is also a norm of customary
international law and is considered to have the rare status of a peremptory norm of
international law (jus cogens).
19. The prohibition of torture is absolute and non-derogable, meaning that “no
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”.2 The prohibition of torture must not be limited or balanced against any other right
or concern, and States are not permitted to derogate from their obligations even in times of
emergency or armed conflict (see A/HRC/13/39/Add.5, paras. 41-42). Likewise, the
prohibition of cruel, inhuman or degrading treatment or punishment is considered to be
non-derogable and, therefore, must be observed in all circumstances.3 The gravity of torture
also finds expression in the attendant obligations on States to adopt effective legislative,
administrative, judicial and/or other measures to prevent acts of torture or other ill-
treatment in any territory under their jurisdiction,4 the obligation to criminalize acts of
torture,5 and the customary international law obligation to investigate, prosecute and punish
all acts of torture and other ill-treatment as codified, inter alia, in the Convention.6
20. While the legal framework around torture is uniquely developed, the Special
Rapporteur is of the view that certain terms relating to the prohibition of torture that are
relied upon require reaffirmation and clarification. For example, while the Convention
expressly defines torture in its article 1 (1), no such definition exists of “other cruel,
2 Convention against Torture, art. 2 (2).
3 Committee against Torture, general comment No. 2 (2008) on the implementation of article 2, paras.
3 and 6.
4 Convention against Torture, arts. 2 (1) and 16. See also Human Rights Committee, general comment
No. 20 (1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or
punishment, para. 8.
5 Convention against Torture, art. 4.
6 Ibid., art. 12.
inhuman or degrading treatment or punishment” as a whole, or of its separate elements. A
former Special Rapporteur has argued that “the distinguishing factor is not the intensity of
the suffering inflicted, but rather the purpose of the conduct, the intention of the perpetrator
and the powerlessness of the victim” (see A/HRC/13/39, para. 60). Thus, based on the work
undertaken by his predecessors, the Special Rapporteur will aim to further illuminate and
interpret the exact parameters and obligations surrounding the absolute prohibition of
torture. With a view to contributing to the doctrine on the prohibition of cruel, inhuman or
degrading treatment or punishment, the Special Rapporteur will also endeavour to further
clarify the criteria and thresholds rendering a particular treatment or punishment “cruel”,
“inhuman” or “degrading”. In doing so, the Special Rapporteur will aim to ensure that the
protection space offered to victims of torture and other ill-treatment remains adequate in the
light of the fast-evolving challenges marking the contemporary international environment.
2. Promoting treaty participation and soft law standards
21. In all his endeavours, the Special Rapporteur will promote adherence to, and
ratification of, core relevant human rights treaties. At the same time, the Special Rapporteur
will also promote so-called soft-law standards such as, but not limited to, the Nelson
Mandela Rules, the Body of Principles for the Protection of all Persons under Any Form of
Detention or Imprisonment, the Bangkok Rules, the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice (Beijing Rules), the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty, the Code of Conduct for Law
Enforcement Officials, the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials and other relevant instruments. Ultimately, the Special Rapporteur
will prioritize results-based pragmatism rather than formalism without, however,
compromising on applicable norms, terms and standards. Therefore, the primary focus of
the Special Rapporteur will not necessarily be to achieve universal ratification of relevant
treaties, but rather to advocate for the implementation, in actual practice, of norms,
procedures and mechanisms for the effective prevention of torture or other cruel, inhuman
or degrading treatment or punishment.
3. Strengthening the Istanbul Protocol
22. The Istanbul Protocol is the first set of international guidelines for the forensic
investigation and documentation of torture. It sets standards and procedures for the
assessment of persons who allege to have been subjected to torture and other forms of ill-
treatment, for investigation of alleged torture cases and for reporting such findings to the
judiciary and other investigative bodies.
23. The Istanbul Protocol was developed in the span of three years of analysis, research
and drafting undertaken by more than 75 forensic physicians, psychologists, human rights
monitors and lawyers representing 40 organizations and institutions from 15 countries. It
became an official United Nations publication in 1999.
24. The Istanbul Protocol is a uniquely and fundamentally important tool for the
prevention of torture and other ill-treatment around the world. Discussions have started in
recent years about how to strengthen and enhance the Protocol to better support torture
victims’ pursuit of justice.
25. An initial stocktaking and risk-assessment process was thus launched in 2016 by
several civil society organizations that have been working with the Istanbul Protocol in
practice. The Special Rapporteur on torture, as one of the four core United Nations
mechanisms dedicated to eradicating torture, will actively contribute to this review process
in the coming years. The stocktaking exercise aims to assess the current global experience
with using and implementing the Istanbul Protocol and to identify obstacles and
possibilities for strengthening its use.
B. Torture and other cruel, inhuman or degrading treatment or
punishment in police custody and pretrial detention
1. Promoting non-coercive interviewing practices
26. Law enforcement officers and officials from other investigative bodies are obliged to
respect and protect the inherent dignity and physical and mental integrity of all persons,
including suspects, witnesses and victims. Nevertheless, the use of torture, other ill-
treatment, coercion and intimidation against persons in custody and during interviews
continues unabated in most if not all regions of the world. This is so not only despite the
universal and absolute prohibition of such practices, but also despite scientific and
historical evidence that abusive and coercive techniques elicit unreliable information and
have adverse operational, institutional and public safety consequences.
27. The Special Rapporteur welcomes the proposal put forward by his predecessor in his
last report to the General Assembly (A/71/298) in which he advocated for the development
of universal guidelines for investigative interviewing practices. These would be grounded
in fundamental principles of international human rights law and would identify a set of
standards for non-coercive interviewing methods and procedural safeguards that ought, as a
matter of law and policy, to be applied at a minimum to all interviews by law enforcement
officials, military and intelligence personnel and other bodies with investigative mandates.
28. The Special Rapporteur proposed that the first step in the development of universal
guidelines on investigative interviewing would be to hold a broad public consultation. In
parallel, OHCHR was tasked by the Human Rights Council, in its resolution 31/31, to
organize an intersessional seminar to exchange national experiences and best practices on
the implementation of effective safeguards to prevent torture and other ill-treatment during
police custody.
29. The Special Rapporteur intends to take the work of his predecessor a step further
and commits to contribute actively, in consultation and cooperation with other stakeholders,
to the development of universal guidelines on investigative interviewing.
2. Conditions of treatment and detention
30. International law requires that States guarantee the effective protection of persons at
risk of torture and ill-treatment, in particular persons deprived of their liberty who are under
the complete control of the detaining authorities.7 Indeed, arrest and deprivation of liberty
are inherently associated with a risk of intimidation, torture and other ill-treatment,8 and
experience shows that this risk is especially high in the very early stages of custody and
detention. At times, initial police custody or remand detention is extended beyond the
legally permissible period, thus making the detained individual particularly vulnerable to
abuse. Moreover, while the physical and psychological conditions of detention in police
custody may be acceptable for periods up to 48 hours, they often are completely inadequate
for housing persons for any longer periods.
31. Procedural safeguards have been developed to counter the risk of torture and other
cruel, inhuman or degrading treatment or punishment, and their implementation is key to
eradicating such abuse in practice (see A/HRC/13/39/Add.5, para. 81). Among the most
basic but important safeguards is the immediate and adequate registration of any arrest and
7 Committee against Torture, General comment No. 2, para. 13; Human Rights Committee, general
comment No. 20, paras. 10-11.
8 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, 12th General Report, 3 September 2002, para. 33.
detention, as well as the prohibition on holding anyone in unofficial places of detention.
Other guarantees include the detainees’ right to have prompt access to independent legal
counsel and medical assistance and to have their families notified of their arrest. In
addition, each individual has the right to challenge the legality of his/her detention and
treatment before an independent court. 9 There must be formal procedures by which a
detainee is informed of his/her rights, so as to enable him/her to enjoy those rights.
32. The Special Rapporteur is interested in conducting a global survey on how States
implement such safeguards. He will actively cooperate with Governments during his tenure
to identify challenges and best practices and to encourage States to live up to their
obligations to fully implement relevant safeguards in order to make detainees’ rights a
reality rather than an aspiration.
C. Migration-related torture and ill-treatment
33. Conflicts, violence, persecution, poverty and food insecurity are driving
unprecedented waves of people to cross international borders in a desperate search for
safety. According to the Office of the United Nations High Commissioner for Refugees, in
2015 alone, 65.3 million individuals were forcibly displaced worldwide, the largest number
since the Second World War.10
34. This rise in the number of forced displacements is paralleled by a growing and
worrying tendency around the world to criminalize irregular migration, to deter applications
for asylum and to detain people on the move. In this context, refugees, asylum seekers and
other irregular migrants have become more vulnerable to human rights violations, including
torture and other cruel, inhuman or degrading treatment or punishment.
35. In this context, the Special Rapporteur intends to look with a renewed degree of
scrutiny into the particular risks of torture and other cruel, inhuman or degrading treatment
or punishment faced by irregular migrants in today’s world. He will do so keeping in mind
the New York Declaration for Refugees and Migrants, adopted by the General Assembly on
19 September 2016, in which States committed to protect the human rights of all refugees
and migrants.
1. Detention of migrants and refugees
36. Of particular interest to the Special Rapporteur’s mandate will be the use by many, if
not all, Governments of detention as a migration management tool in arrival, transit and
removal centres. During his fact-finding visits, the Special Rapporteur intends to visit
places where irregular migrants are held with a view to ensuring that they are not subjected
to treatment and conditions of detention amounting to torture or other cruel, inhuman or
degrading treatment or punishment. The Special Rapporteur is of the view that monitoring
both official and de facto places of detention where irregular migrants are held would be
instrumental for assisting authorities in addressing possible cases of abuse and improving
the conditions of life of this population.
2. Non-refoulement
37. The Special Rapporteur will also closely monitor the conditions under which some
irregular migrants, including asylum seekers and refugees, are being returned to their
9 Committee against Torture, general comment No. 2, para. 13; Human Rights Committee, general
comment No. 20, para. 11.
10 See www.unhcr.org/576408cd7.pdf.
countries of origin or relocated to countries of transit under readmission agreements
negotiated with countries that may have committed gross human rights violations, including
torture. In doing so, the Special Rapporteur will advocate for the full application of article 3
of the Convention, which provides that no State party shall expel, return (“refouler”) or
extradite a person to another State where there are substantial grounds for believing that
he/she would be in danger of being subjected to torture, and that for the purpose of
determining whether there are such grounds, the competent authorities shall take into
account all relevant considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
38. The Special Rapporteur fully endorses the long-standing jurisprudence and doctrine
stating that the absolute prohibition against refoulement contained in the Convention
against Torture is stronger than that found in refugee law under article 33 of the 1951
Convention relating to the Status of Refugees. This absolute prohibition means that persons
may not be returned even when they may not otherwise qualify for refugee status under the
1951 Convention or domestic law. Accordingly, non-refoulement under the Convention
against Torture must be assessed independently of refugee or asylee status determinations,
so as to ensure that the fundamental right to be free from torture or other ill-treatment is
respected even in cases where non-refoulement under refugee law may be circumscribed.11
39. Finally, the Special Rapporteur is also interested in researching how to better assist
States in preventing and investigating acts of torture and other ill-treatment suffered by
refugees, asylum seekers and other irregular migrants at the hands of non-State actors such
as traffickers and smugglers.
40. The Special Rapporteur intends to contribute to the ongoing reflection on the links
between forced migration and torture. To this end, he hopes to conduct consultations with
relevant stakeholders with a view to preparing a thematic report addressing the specific
issue of torture and ill-treatment faced by migrants and refugees. Through this report, the
Special Rapporteur hopes to contribute to the overall efforts of the international community
towards the adoption of a global compact for safe, orderly and regular migration by 2018.
D. Extra-custodial use of force
41. In the past, the attention of the mandate has focused predominantly on fighting the
use of torture and other cruel, inhuman or degrading treatment or punishment against
persons deprived of their liberty. It has not yet systematically examined the extent to which
the use of force by law enforcement officers and other officials outside the context of
detention (so-called extra-custodial use of force) can come within the purview of the
mandate. The question is particularly relevant where State officials resort to unnecessary,
disproportionate or otherwise excessive force without, however, directly infringing the right
to life. While it is clear that States must be in a position to use all appropriate means,
including necessary and proportionate force, with a view to maintaining public security and
law and order, experience shows that it is precisely in situations where force is used in
insufficiently controlled environments that the risk of arbitrariness and abuse is highest.
42. The Special Rapporteur therefore aims to clarify how terms such as “torture”,
“cruel”, “inhuman” and “degrading” should be interpreted within the context of extra-
custodial use of force, particularly in view of potential justifications such as law
enforcement, crowd control, or self-defence or defence of others. He will also examine how
this subject area interrelates with the protection of other fundamental rights such as, most
11 Human Rights Committee, general comment No. 20, para. 9. See also paragraph 7 of General
Assembly resolution 70/146 and Human Rights Council resolution 16/23.
notably, the right of peaceful assembly, freedom of expression and the right to life. Further,
the Special Rapporteur plans to examine the extent to which the use of certain types of
weapons, riot control devices or other means and methods of law enforcement would have
to be considered intrinsically cruel, inhuman or degrading in the light of their immediate to
long-term consequences.
43. In interpreting the relevant legal provisions, the Special Rapporteur will be guided,
among other sources, by State practice, international jurisprudence and two soft law
instruments widely recognized to reflect generally recognized conditions and modalities
governing the use of force by law enforcement officials: the Code of Conduct for Law
Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials. The Special Rapporteur intends to conduct his thematic work in this
area based on consultations and expert meetings with relevant stakeholders and experts, and
building on earlier analyses by other special procedure mandate holders who explored
similar issues.12
E. Torture and ill-treatment by non-State actors
44. So far, steps taken by the mandate to combat torture have focused almost entirely on
States as potential perpetrators. Yet organized armed groups, private military and security
contractors, mercenaries, foreign fighters and other non-State actors are increasingly
engaged in conduct that adversely interferes with human rights, including the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment. For the absolute
and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or
punishment to retain its practical relevance, however, it must also provide for practical
protection against violations on the part of non-State actors.
45. This focus area raises questions of the due diligence of States as well as, to a certain
extent, of the direct obligations of non-State actors as far as the absolute prohibition of
torture and other cruel, inhuman or degrading treatment or punishment is concerned. It
should be recalled that, although non-State actors are not directly bound by human rights
treaties, there are other treaty provisions prohibiting torture and other cruel, inhuman or
degrading treatment or punishment that may be directly binding on them. Most notably,
under international humanitarian law, both States and non-State actors are absolutely
prohibited from resorting to torture and other cruel, inhuman or degrading treatment or
punishment for reasons related to an armed conflict. Moreover, any person resorting to
torture or other cruel, inhuman or degrading treatment or punishment amounting to a war
crime, a crime against humanity, or even genocide is subject to prosecution under
international criminal law. Arguably, the universal prohibition of torture and other cruel,
inhuman or degrading treatment or punishment can also be based on a general principle of
law, namely what the International Court of Justice referred to as “elementary
considerations of humanity”. According to article 38 of the Statute of the International
Court of Justice, such general principles of law constitute an independent source of
international law along with treaties and custom.
46. As far as the due diligence of territorial States is concerned, the Special Rapporteur
is of the view that the exercise of control by an organized armed group as de facto authority
over the population of a State does not deprive the people living in this territory of their
rights.13 States therefore have a due diligence obligation to protect individuals under their
jurisdiction from cruel, inhuman or degrading treatment or punishment on the part of non-
12 As contained, for example, in documents A/66/330, A/HRC/17/28, A/HRC/26/36 and A/HRC/31/66.
13 Human Rights Committee, general comment No. 26 (1997) on the continuity of obligations.
State actors. Thus, even where armed groups have brought part of the national territory
under their control, Governments are not absolved from doing everything feasible in the
circumstances to protect their citizens from torture and ill-treatment.
47. In addition, an increasing number of States delegate part of their law enforcement,
intelligence and military operations to private military or security companies. Outsourced
tasks and functions may range from the protection of specific persons, objects and
infrastructure to running facilities for the processing of asylum seekers or even entire
detention facilities for criminal suspects and convicts, and may even include the use of
force. In this environment, allegations of individual contractors’ involvement in serious
human rights violations — including participation in torture and other cruel, inhuman or
degrading treatment or punishment — continue to emerge. It is therefore important to recall
that States cannot absolve themselves from international legal responsibility for acts of
torture and other cruel, inhuman or degrading treatment or punishment carried out by
private military or security contractors operating on their behalf.
48. In sum, the Special Rapporteur is of the view that international law must protect
every human being from torture and other cruel, inhuman or degrading treatment or
punishment, whoever the perpetrators may be. Throughout his tenure, the Special
Rapporteur will therefore aim to contribute to closing the protection gap for victims of
torture and other cruel, inhuman or degrading treatment or punishment at the hands of non-
State actors, including by advocating for the mutual reinforcement of human rights and
international humanitarian law obligations. In carrying out his mandate, the Special
Rapporteur is also willing to explore, to the extent appropriate and practicable, the benefits
of engaging in a direct dialogue with non-State actors, including de facto authorities, other
armed groups and private companies, to achieve a positive impact on the ground. The
Special Rapporteur will also endeavour to further contribute to the ongoing discussions on
holding non-State actors accountable for human rights violations, including for acts of
torture and other cruel, inhuman or degrading treatment or punishment.
V. Conclusions
49. The Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment sincerely thanks the Human Rights Council for the
confidence in him demonstrated by his nomination. He is aware of the great
responsibility of his office and is fully committed to carrying it out to the best of his
ability and for the benefit of humanity as a whole.
50. The Special Rapporteur acknowledges that the mandate is part of a wider
system and looks forward to working in close cooperation with the Committee against
Torture, the Subcommittee on Prevention of Torture, the United Nations Voluntary
Fund for Victims of Torture, other special procedure mandate holders, regional anti-
torture mechanisms, States and civil society actors.
51. The Special Rapporteur also wishes to salute the outstanding work
accomplished by his predecessors since the establishment of the mandate in 1985. He
intends to consolidate and build on their achievements throughout his tenure.
52. At the same time, the Special Rapporteur cannot ignore that, despite more than
three decades of dedicated work of the mandate and countless other international,
governmental and non-governmental stakeholders, torture and other cruel, inhuman
or degrading treatment or punishment are still rampant in most, if not all, parts of the
world. In particular, the Special Rapporteur observes with alarm that, since the turn
of the century, the rise of transnational terrorism, organized crime and other actual or
perceived threats has given way to an increasing tolerance for violent political
narratives and popular beliefs that not only trivialize torture and other cruel,
inhuman or degrading treatment or punishment but even promote and incite their use
in the name of national security and the fight against terrorism.
53. Therefore, the first priority of the Special Rapporteur will be to unequivocally
reaffirm the absolute and universal prohibition of all, and any, forms of torture and
other cruel, inhuman or degrading treatment or punishment, to further clarify the
contours and meaning of these terms in the light of the evolving challenges marking
the contemporary international environment, and to call on States and non-State
actors alike to renounce, and to prevent impunity for, any such practice.
54. Throughout his tenure, the Special Rapporteur intends to continue some of the
thematic work streams initiated by his predecessors, such as the envisaged protocol on
non-coercive interviewing and other issues arising in the area of police custody and
pretrial detention. Furthermore, the Special Rapporteur will also endeavour to widen
the protection space for victims of torture and other cruel, inhuman or degrading
treatment or punishment. To that end, he intends to take up a number of issues that
have not yet received systematic attention from the international community, such as
torture and other cruel, inhuman or degrading treatment or punishment occurring in
relation to forced migration, in extra-custodial settings and at the hands of non-State
actors.
55. The Special Rapporteur is of the firm view that there is no better deterrent to
torture than a strong national will to combat and prevent such abhorrent abuse. In
addition to visiting places of detention, therefore, the Special Rapporteur will use the
opportunity of fact-finding visits to encourage States to take effective legislative,
administrative and judicial measures to prevent torture. In particular, wherever
necessary, the Special Rapporteur will call upon States to ratify the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
and the Optional Protocol thereto and to establish independent and professional
national preventive mechanisms.
56. In carrying out his mandate, the Special Rapporteur will always endeavour to
engage in an open, respectful and constructive dialogue with States and other
international, regional and non-governmental stakeholders, and aim to gain mutual
trust and consolidated understanding of all relevant perspectives, concerns and
challenges before drawing any conclusions or trying to identify the most suitable
manner of action.
57. The Special Rapporteur considers it an absolute priority of the mandate to
continue transmitting urgent appeals to States with regard to individuals reported to
be at risk of torture, as well as communications on past alleged cases of torture.
However, having recently taken up his functions, the Special Rapporteur notes with
serious concern that the resources allocated to the mandate are not sufficient to
respond to the ever-growing number of urgent requests for intervention on behalf of
individuals. The Special Rapporteur therefore appeals to the Human Rights Council,
as well as to its members individually, to take every possible measure to allow the
Special Rapporteur to carry out the mandate effectively.