A/HRC/52/30 the place where the alleged offences occurred”.10 The obligation to investigate and prosecute acts of torture is made further explicit or implicit in the range of international and regional treaties prohibiting torture.11 The rules are clear and far-reaching; no stone shall go unturned in fighting impunity for crimes of torture. 21. States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have explicit treaty duties to establish all acts of torture as offences under domestic law (art. 4), to exercise jurisdiction over said offences (art. 5), to receive complaints and examine them promptly and impartially (art. 13), and to investigate those allegations promptly and impartially (art. 12). Defendants cannot rely on orders of a superior or public authority, or states of emergency, to exonerate their actions (art. 2 (3) and 2.(2)), while any legal mechanisms which interfere with that obligation, such as statutes of limitations, immunities or amnesties, are considered contrary to the non-derogable nature of the prohibition. 12 Amnesties provided at domestic law do not remove criminal liability pursuant to international tribunals or universal jurisdiction.13 Prosecutors and courts have a duty to refuse evidence obtained, or suspected of having been obtained, through torture or other illicit means (art. 15).14 Victims are to be protected from reprisals or intimidation during said investigations (art. 13) and they have an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible (art. 14). Although only acts committed after the entry into force of the Convention fall within the scope of its obligations,15 as a jus cogens norm, which both pre-exists and is external to any specific treaty obligations, States remain duty-bound to investigate and prosecute earlier occurring allegations of torture and other ill-treatment. 22. States are to establish jurisdiction over all acts of torture on territoriality, flag State, active nationality, passive nationality and universal jurisdiction principles (art. 5). The Convention against Torture further imposes duties to extradite alleged offenders when they are not prosecuted (arts. 5 (2) and 7 (1)). As expressed by the International Court of Justice, “the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State”.16 This obligation requires a State “to make a preliminary inquiry [art. 6 (2)] immediately from the time that the suspect is present in its territory. The obligation to submit the case to the competent authorities [under art. 7 (1)] may or may not result in the institution of proceedings, in the light of the evidence before them …”.17 Further, in respect of extradition, the Convention clarifies that torture shall be deemed an extraditable offence and that the Convention may be considered as the legal basis for extradition in the absence of an extradition treaty where extradition is conditional upon the existence of such a treaty (art. 8). Mutual legal assistance between States parties is expected (art. 9). The Human Rights Committee has identified similar obligations.18 23. Under international humanitarian law, similar investigative obligations exist. As a grave breach of each of the four Geneva Conventions of 1949, the High Contracting Parties are obliged: to enact legislation to provide penal sanctions for persons committing, or 10 11 12 13 14 15 16 17 18 GE.23-03126 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports 2012 (concerning the case against Hissane Habré), para. 68. See A/77/502, para. 40. Committee against Torture, general comment No. 2 (2008), para. 5. Prosecutor v. Kallon and Kamara, Special Court of Sierra Leone, Case No. SCSL-2004-15-AR 72(E) and SCSL-2004-16-AR 72(E), 13 March 2004, paras. 67–71. See Office of the United Nations High Commissioner for Human Rights (OHCHR), Guidelines on the Role of Prosecutors (1990), para. 16. Belgium v. Senegal, para. 100. It should be noted that the Court ruled only on obligations under the Convention and did not rule on the question of obligations under customary international law, for which the Special Rapporteur deems to have no such temporal limitation. See also, Committee against Torture, O.R., M.M. and M.S. v. Argentina, communication Nos. 1/1988, No. 2/1988 and No. 3/1988, decision of 23 November 1989, para. 7.5. Belgium v. Senegal, para. 95. Ibid., para. 94. Human Rights Committee, general comment No. 20 (1992), paras. 8 and 13–14. 5