A/HRC/25/60 and use of information outside formal proceedings, which is likely to have been obtained by torture or other ill-treatment, or the sharing of information that could lead to such acts, constitutes a violation of the underlying general prohibition against torture and other cruel, inhuman or degrading treatment or punishment.38 3. State responsibility and complicity in acts of torture and other ill-treatment 48. A violation of the prohibition against acts of torture or other ill-treatment and the obligation to prevent can be committed by both active participation and acts of complicity in such acts. Article 4, paragraph 1, of the Convention refers to the individual criminal liability of a person for complicity or participation in torture. The Committee against Torture considered complicity to include acts that amount to instigation, incitement, superior order and instruction, consent, acquiescence and concealment.39 It is clear that acquiescence, as contained in article 1 of the Convention, on the part of State officials is sufficient for the conduct of those officials to be attributed to the State and to lead to State responsibility for torture. Although not written explicitly, article 4, paragraph 1, of the Convention reflects an obligation on States themselves not to be complicit in torture, through the actions of their organs or persons whose acts are attributable to them.40 49. In addition, State responsibility also derives from existing customary rules, as codified in the draft articles on the responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session. They confirm that no State should provide aid or assistance to another State in the commission of an internationally wrongful act (draft articles 16–18), should not recognize as lawful a situation created by a “serious breach” of its obligations under peremptory norms of international law and should cooperate to bring the breach to an end (draft articles 40 and 41). Therefore, if a State were to be torturing detainees, other States would have a duty to cooperate to bring such a serious breach of the prohibition against torture to an end and would be required not to give any aid or assistance to its continuation (A/67/396, para. 48, and A/HRC/13/42, para. 42). 50. According to article 4, paragraph 1, of the Convention, interpreted in line with international criminal law jurisprudence, “complicity” contains three elements: (a) knowledge that torture is taking place, (b) a direct contribution by way of assistance and (c) that it has a substantial effect on the perpetration of the crime. Thus, individual responsibility for complicity in torture arises also in situations where State agents do not themselves directly inflict torture or other ill-treatment but direct or allow others to do so, or acquiesce in it. In addition, orders from superiors or other public authorities cannot be invoked as a justification or excuse.41 51. Similarly, draft article 16 on the responsibility of States for internationally wrongful acts requires either the knowledge that the assistance is facilitating the wrongful act, or that there is an intention to do so. Some domestic courts have applied a high threshold for State complicity by ruling that knowingly receiving and relying on information obtained by torture does not constitute complicity under international customary or treaty law if there was no direct encouragement of acts of torture. 52. However, the responsibility of a State for complicity in torture or other ill-treatment by collecting, sharing or receiving tainted information must be governed by a different 38 39 40 41 “Rotten fruit: State solicitation, acceptance and the use of information obtained through torture by another State”, p. 360. See Committee against Torture, general comment No. 2, para. 17. See A/HRC/13/42, paras. 39 and 40, and Sarah Fulton, “Cooperating with the enemy of mankind: can States simply turn a blind eye to torture?”, The International Journal of Human Rights, vol. 16, No. 5 (June 2012). See e.g. Human Rights Committee, general comment No. 20, para. 3. 13