A/HRC/52/30 ordering to be committed, torture and inhuman treatment, including biological experiments; to search for such persons in order to bring them to justice;19 and to prosecute suspects of acts of torture as grave breaches under universal jurisdiction, which is considered obligatory.20 States may discharge their obligation to investigate war crimes and prosecute the suspects by setting up international or mixed tribunals. 21 The preamble to the Rome Statute of the International Criminal Court recalls that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. The Statute disregards immunity for Heads of State or Government (art. 27), establishes responsibility of those in command (art. 28), excludes statutes of limitations (art. 29) and disregards the excuse of following superior orders (art. 33). The duty to investigate and prosecute torture as genocide, war crimes or crimes against humanity is also determined to be customary law, applicable for crimes committed in international and non-international armed conflict, which requires States to establish jurisdiction and investigate war crimes allegedly committed by its nationals or armed forces, or on their territory, and, if appropriate, to prosecute the suspects.22 Customary law has also established that soldiers have a duty to disobey orders of a superior for grave breaches and that there is no relief for following superior orders.23 Also considered customary norms are the rules against amnesties and statutes of limitation.24 24. Among the many restatements of this international obligation to investigate torture for purposes of criminal prosecution at the regional level, the Inter-American Court of Human Rights has confirmed that: “The State has a legal duty […] to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation”. 25 The Court has clarified that prosecutions must be conducted within “a reasonable time” by a competent, independent and impartial tribunal. 26 In cases of enforced disappearances, the Court has held that the refusal to investigate or to know the truth is a form of cruel and inhuman suffering to family members.27 25. The jurisprudence of the European Court of Human Rights has held that the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice if credible assertions of illtreatment are not investigated. An “effective official investigation” should be capable of leading to the identification and punishment of alleged offenders.28 What the European Court terms a “positive obligation” includes requirements to legislate,29 for authorities to act of their own motion to investigate once the matter has come to their attention30 and that investigative bodies must be hierarchically, institutionally and practically independent of the individuals or entities they are investigating. 31 In some circumstances, the obligation may require investigators to seek or to afford assistance to the authorities of another State.32 In addition, the Court has held that the procedural obligation to investigate also extends to a requirement 19 20 21 22 23 24 25 26 27 28 29 30 31 32 6 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, article 50; Convention relative to the Treatment of Prisoners of War, article 129; and Convention relative to the Protection of Civilian Persons in Time of War, article 146. See International Committee of the Red Cross (ICRC), International Humanitarian Law Databases and commentary (https://ihl-databases.icrc.org/en/customary-ihl/v1), rule 158. Ibid. Ibid., rules 157 and 158. Ibid., rules 151, 154 and 155. Ibid., rules 159 and 160. Inter-American Court of Human Rights, Velasquez-Rodriguez v. Honduras, ser. C, No. 4 (1988), para. 174. Ibid., Manuel Garcia Franco v. Ecuador, Case 10.258 (1997), para. 70. Ibid., Blake v. Guatemala, series C, No. 36, para. 114, and Torres Millacura et al. v. Argentina, 26 August 2011, para. 142. European Court of Human Rights, Labita v. Italy, Application No. 26772/95, 6 April 2000, para. 131. Ibid., X and Others v. Bulgaria, Application No. 22457/16, 2 February 2021, para. 179. Ibid., Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01, 3 May 2007, para. 97. Ibid., Bouyid v. Belgium, Application No. 23389/09, 28 September 2015, para. 118. Ibid., X and Others v. Bulgaria, Application No. 22457/16, 2 February 2021, para. 191. GE.23-03126