A/HRC/25/60 B. Use by executive agencies of information tainted by torture and the exclusionary rule 1. State practice and the distinction between the use of tainted evidence in judicial proceedings and by executive agencies 37. Since the “war against terror” was launched more than a decade ago, executive agencies have been under extreme pressure to obtain information in order to protect the citizens of their countries. In this context, the use of information by the executive agencies that has been obtained by torture or other ill-treatment has been publicly condoned by some Governments. Other States assert that their executive agencies would share tainted evidence in “exceptional circumstances” in order to ensure their effectiveness. 38. Such policies not only weaken the absolute prohibition of torture or other illtreatment, but also create a market for information tainted by torture. Inevitably, they raise the question of complicity in torture or other ill-treatment and require a reassessment of the overall responsibility of all States to prevent and discourage acts of torture and illtreatment. All States refuse to subject the work of their intelligence and security agencies to scrutiny or international oversight. Similarly, domestic courts follow this lead and reject motions to submit these executive practices to judicial review, even when the issue is the absolute prohibition of torture. This leads to the erroneous conclusion that the collection, sharing and receiving by the executive agencies of information tainted by torture is not subject to international law.26 There are numerous examples of the use of torture or other ill-treatment when there was no intention of using any of the information gained from that ill-treatment in subsequent legal proceedings, in which it would a priori be subjected to scrutiny and exclusion, for instance in administrative or preventive measures or sanctions against individuals or organizations. 39. There is a tendency to draw a clear distinction between the judicial and the executive use of tainted information by some domestic courts. The latter is often allowed, the argument being, inter alia, that it does not impinge upon the liberty of individuals or that, when it does, as relating to powers of arrest, it is usually of short duration. Alternatively, that argument may refer to the “ticking-bomb scenario”, i.e., that the executive agencies cannot be expected to close their eyes to information at the cost of endangering the lives of the citizens of their own countries. In other words, courts tend to endorse the use of information acquired through torture or other ill-treatment by the executive agencies in all phases of operations, except in judicial proceedings.27 In fact, some courts have ruled that the executive agencies have no responsibility to examine the conditions under which information was obtained, or to change their decisions accordingly. They have also ruled that it is not for the courts to discipline the executive agencies, unless by way of a criminal prosecution, and that their jurisdiction only exists to preserve the integrity of the trial process. 2. Prohibition against torture and the obligation to prevent and discourage torture and other ill-treatment 40. The prohibition against torture and other cruel, inhuman or degrading treatment or punishment enjoys the enhanced status of a jus cogens or peremptory norm of general international law and requires States not merely to refrain from authorizing or conniving at 26 27 10 See e.g. Gerald Staberock, “Intelligence and counter-terrorism: towards a human rights and accountability framework?” in Counter-Terrorism: International Law and Practice, eds. Ana Maria Salinas de Frias, Katja Samuel and Nigel White, (Oxford, United Kingdom, Oxford University Press, 2012) and Association for the Prevention of Torture, “Beware the gift of poison fruit: sharing information with States that torture” (Geneva, 2014), p.6. See e.g. A and others v. Secretary of State for the Home Department, paras 69 and 149.