A/HRC/40/59
checks and balances and the strict separation of powers between the executive, judicial and
legislative branches of Government. While systemic governance failures are fairly obvious
in States with autocratic regimes or weak democratic institutions, they nonetheless also
permeate States with strong democratic institutions and formal guarantees of institutional
independence, albeit less visibly.
50.
For example, throughout the world, judges, prosecutors, parliamentarians and
political leaders are often reluctant to impartially investigate or adjudicate accusations of
corruption, torture or ill-treatment against lower courts, military and civilian security
services or administrative authorities and, instead, tend to display an attitude ranging from
complacency to complicity that is irreconcilable with their democratically mandated role.
Similarly, in virtually all States, legislative or regulatory projects aiming to subject
corporate actors or other influential stakeholders to adequate taxes or to legal liability for
adverse human rights and environmental impacts at home and abroad are routinely hindered
or significantly watered down by powerful lobbying machineries in ways that are
irreconcilable both with the human rights obligations of the State and with legislators’ duty
to serve the public interest.
51.
Analogous failures of good governance, impartiality and oversight can also be
observed at the level of international organizations and other entities created by States,
including those tasked with the protection of human rights and the investigation or
adjudication of violations. In short, lack of transparency, trading in influence, arbitrariness
and denial of justice are common practices across national and international governance
systems, albeit at varying levels of sophistication and subtlety, ranging from open violence
and abuse to corrupt practices almost completely removed from public awareness. As a
direct consequence of this sobering reality, in all regions of the world the vast majority of
abuse involving corruption and torture or ill-treatment is not, or not adequately,
investigated, adjudicated and remedied, thus resulting in a worldwide prevalence of
structural impunity for such abuse.
52.
Overall, the most fundamentally destructive effect of these systemic governance
failures is the creeping establishment of systems, environments and situational “niches”
where power can be abused with impunity, thus providing a fertile environment for the
spread of corruption and, through the relevant patterns of interaction, also for the
unchecked practice of torture and ill-treatment. Therefore, while measures targeting
corruption and torture or ill-treatment at the level of individual officials, institutions and
processes remain indispensable, the only realistic prospect for eradicating either
phenomenon is to effectively address the underlying systemic governance failures
conducive to both forms of abuse.
2.
Normative and institutional shortcomings
53.
Beyond the need for checks and balances, the fight against corruption, torture and
ill-treatment requires an effective international and national normative and institutional
framework and its rigorous implementation, including by means of fostering best practice,
such as forensic investigations and non-coercive interviewing. As the mandate has
highlighted repeatedly, and most recently in the latest thematic report to the General
Assembly, some States have yet to ratify key international legal instruments against torture
and ill-treatment, and all too many States fall short in establishing and ensuring the
effective national operation of key safeguards and mechanisms oriented and tailored
towards preventing torture and ill-treatment (A/73/207, paras. 19–21 and 26–27). Similarly,
some States have yet to ratify key international legal instruments against corruption and
many fall short in establishing and ensuring the effective national operation of key
safeguards and mechanisms aimed at preventing and redressing corruption. 15 The absence
15
14
It is worth noting that, as of 7 November 2018, the United Nations Convention against Corruption had
reached near-universal ratification, with 186 ratifications. On lessons learned regarding the
implementation of the Convention, see CAC/COSP/2017/5. On national implementation strategies,
see UNODC, National Anti-Corruption Strategies: A Practical Guide for Development and
Implementation (Vienna, 2015).
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