Comments on: 2 International Human Rights Questions from PM v Khadr http://www.ejiltalk.org/2-international-human-rights-questions-from-pm-v-khadr/ Blog of the European Journal of International Law Tue, 27 Jul 2010 20:07:35 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Mathias Vermeulen http://www.ejiltalk.org/2-international-human-rights-questions-from-pm-v-khadr/comment-page-1/#comment-486 Mathias Vermeulen Sat, 17 Oct 2009 15:45:23 +0000 http://www.ejiltalk.org/?p=1647#comment-486 I wanted to make exactly the same points as jpaust above + refer to A/HRC/10/3, february 2009 (http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf): 55. The Special Rapporteur emphasizes that not only active participation in interrogations where people are tortured would constitute a violation of human rights law, but also taking advantage of the coercive environment. At a minimum, States which know or ought to know that they are receiving intelligence from torture or other inhuman treatment, or arbitrary detention, and are either creating a demand for such information or elevating its operational use to a policy, are complicit in the human rights violations in question. The Special Rapporteur believes that reliance on information from torture in another country, even if the information is obtained only for operational purposes, inevitably implies the “recognition of lawfulness” of such practices and therefore triggers the application of principles of State responsibility. Hence, States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts. Such involvement is also irreconcilable with the obligation erga omnes of States to cooperate in the eradication of torture. I wanted to make exactly the same points as jpaust above + refer to
A/HRC/10/3, february 2009 (http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf):

55. The Special Rapporteur emphasizes that not only active participation in interrogations where people are tortured would constitute a violation of human rights law, but also taking advantage of the coercive environment. At a minimum, States which know or ought to know that they are receiving intelligence from torture or other inhuman treatment, or arbitrary detention, and are either creating a demand for such information or elevating its operational use to a policy, are complicit in the human rights violations in question. The Special Rapporteur believes that reliance on information from torture in another country, even if the information is obtained only for operational purposes, inevitably implies the “recognition of lawfulness” of such practices and therefore triggers the application of principles of State responsibility. Hence, States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts. Such involvement is also irreconcilable with the obligation erga omnes of States to cooperate in the eradication of torture.

]]> By: jpaust http://www.ejiltalk.org/2-international-human-rights-questions-from-pm-v-khadr/comment-page-1/#comment-483 jpaust Tue, 13 Oct 2009 21:52:31 +0000 http://www.ejiltalk.org/?p=1647#comment-483 First, did not the interrogator who is controlling the interrogation for however long a period have "power or effective control" within the meaning of H.R. Comm, Gen. Comm. No. 31? Didn't the interrogator, acting on behalf of the state, exercise its jurisidiction -- doesn't any state actor exercising the power or a state exercise its jurisdiction? Second, one can be complicit with respect to violations engaged in by a direct perpetrator who has power or effective control over a detainee even if the complicitor does not. Third, the test for complicity merely requires that the complicitor intend to engage in conduct with knowledge or awareness that that conduct can or will facilitate the conduct of a direct perpetrator. One does not have to intend to commit a crime or know that one's conduct or that of the direct perpetrator is criminal. See, e.g., http://jurist.law.pitt.edu/forumy/2009/04/second-bybee-memo-smoking-gun.php or http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php First, did not the interrogator who is controlling the interrogation for however long a period have “power or effective control” within the meaning of H.R. Comm, Gen. Comm. No. 31? Didn’t the interrogator, acting on behalf of the state, exercise its jurisidiction — doesn’t any state actor exercising the power or a state exercise its jurisdiction?
Second, one can be complicit with respect to violations engaged in by a direct perpetrator who has power or effective control over a detainee even if the complicitor does not. Third, the test for complicity merely requires that the complicitor intend to engage in conduct with knowledge or awareness that that conduct can or will facilitate the conduct of a direct perpetrator. One does not have to intend to commit a crime or know that one’s conduct or that of the direct perpetrator is criminal. See, e.g., http://jurist.law.pitt.edu/forumy/2009/04/second-bybee-memo-smoking-gun.php or http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php

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