A/HRC/52/30 to investigate allegations of ill-treatment administered by private individuals when they are “arguable”.33 26. The African Commission on Human and Peoples’ Rights has likewise held that “allegations of torture against public officials impose an immediate duty on the State to initiate a prompt, impartial and effective investigation [...].”34 The Commission has warned States that by failing to take measures to investigate allegations, in spite of being notified of them, they “forfeit its prerogative to deal with a case domestically […]”.35 The Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines) call on States to criminalize torture in line with article 1 of the Convention against Torture, paying particular attention to gender-related forms of torture and ill-treatment, to ensure that those responsible for torture are subjected to a legal process and to establish readily accessible and fully independent mechanisms. 27. Many soft law instruments have been developed to reaffirm rights to complain and provide guidance on how to carry out torture investigations impartially and promptly.36 C. Obstacles, impediments and challenges to effective torture investigations 28. The failure of States to carry out investigations into allegations of torture and to hold perpetrators accountable can be attributed to numerous factors, requiring a whole-ofgovernment reckoning about why such obstacles to accountability persist. Such factors include denial, wilful obstruction, delay, scapegoating, deficient and/or underfunded procedures, barriers to victim participation and historical patterns of torture and impunity that shape present-day tolerance of such practices and evasion of accountability. 37 Additional impediments and further details have been reported to the Special Rapporteur for the present report. 29. Regulatory gaps, such as an absence of an explicit crime of torture or unclear definitions in national law pursuant to which perpetrators can be tried, continue to be firsttier legal blocks. Regulatory gaps also include the absence of legal provisions setting out the procedures for complaints, investigations and prosecutions. Certain domestic laws continue to permit torture or inhuman treatment or punishment in various forms, making such acts unprosecutable. Such laws persist in States that retain colonial-era prison acts or other criminal codes allowing the use of corporal punishment. 38 In some countries indefinite solitary confinement is still on the statute books39 and in others courts permit confessions and/or evidence extracted using torture.40 Such laws require immediate repeal. 30. Non-existent, unsafe or inaccessible complaints procedures without victim or witness protection against reprisals or intimidation are not uncommon. Many persons arrested or deprived of their liberty are not made aware of complaints procedures, or the procedures in place lack confidentiality and safety. Bureaucratic red tape and “invisible” obstructions are prevalent. In some cases, authorities refuse to register complaints or accusers are discouraged or pressured not to file complaints. 33 34 35 36 37 38 39 40 GE.23-03126 Ibid., para. 184. African Commission on Human and Peoples’ Rights, Abdel Hadi, Ali Radi v. Sudan, communication No. 368/09, 2014, para. 45. Ibid., para. 31. Soft law instruments relevant to the duty to investigate torture are available at https://www.ohchr.org/sites/default/files/documents/issues/torture/annex-relevant-soft-lawinstruments.docx. See A/76/168. See joint submission by Reprieve, the Centre for Human Rights Education, Advice and Assistance (Malawi) and Irish Rule of Law International; see also submission by Suara Rakyat Malaysia and the Anti-Death Penalty Asia Network. Submission by Prisoners Legal Service, Canada. Joint submission by Reprieve et al. and submission by Suara Rakyat Malaysia et al. 7