Part I: Prohibition of torture: The legal background The “due diligence obligation” requires states to prevent, investigate, prosecute and punish acts of torture and ill-treatment, wherever there are reasonable grounds to believe such acts are being committed by private actors. Where they fail in this obligation, states can bear responsibility as authors, for consenting to or acquiescing to torture and ill-treatment. This includes an obligation to prevent and protect victims from gender-based violence. “When states are aware of a pattern of violence or the targeting of specific groups by non-state actors, their due diligence obligations are likewise engaged”.24 Lawful sanctions The definition of torture provided in the Convention explicitly excludes “pain or suffering arising only from, inherent or incidental to lawful sanctions.” The lawfulness of the sanction should be determined by reference to both national and international standards, including the United Nations Standard Minimum Rules for the Treatment of Detainees (Nelson Mandela Rules). This approach recognizes both the absolute nature of the prohibition of torture and the need for consistency in its application. The issue of corporal punishment has been raised by some States under the so-called “lawful sanctions” clause. However, this clause cannot be used to justify the use of corporal punishments under domestic law. It has been firmly established that corporal punishments are prohibited under international law, in general, and the Convention against Torture in particular.25 2. Absolute prohibition of torture Some human rights can be restricted under certain circumstances (for example, for the protection of public order) if the restriction is provided for by law, is for a public interest, is necessary to protect the rights of others or the community, and is proportionate. The circumstances under which these restrictions may apply are specifically and exhaustively listed in various human rights treaties. Some treaties also provide a special ability to derogate from certain human rights during an officially declared public emergency. Derogate means to pass laws or take actions that would ordinarily violate those rights. Torture, however, is absolutely prohibited and can never be justified under any circumstances whatsoever. Relevant international treaties unanimously exclude the freedom from torture and illtreatment from derogation and restriction clauses. Customary international law, which applies to all States, including those that have not ratified relevant human rights or international humanitarian law treaties, considers the prohibition of torture to be a peremptory norm, or jus cogens. This means that no exception or derogation to the prohibition is permitted in any circumstance, even a state of war, the threat of war, internal political instability or public emergency. Necessity, self-defence and other defences are not accepted in any case of torture, no matter how extreme or grave the circumstances. In addition to the legal arguments, there are also solid moral and ethical grounds for rejecting any act of torture. Defusing attempts to justify torture Despite the clarity in international law, some states have attempted to undermine the absolute prohibition of torture and justify its use. This was particularly marked during the so-called “war on terror”. However, the obligation remains firmly in place and the Committee against Torture has absolutely rejected ”any efforts by States to justify torture and ill-treatment as a means to protect public safety or avert emergencies”.26 24 Report of the Special Rapporteur on torture op. cit., para. 11. 25 See e.g. Committee against Torture, ‘Concluding Observations: Saudi Arabia’ (2016) (CAT/C/SAU/CO/2), para 11. 26 CAT, General comment No. 2 op.cit. para 11. 23