EJIL: Talk!

Elizabeth Prochaska’s recent post addressed the Canadian case of the Prime Minister v Omar Khadr from the perspective of its relevance to the law of diplomatic protection. I would like to highlight two other interesting international human rights law questions raised by the case. One is whether Khadr was at any relevant time “subject to Canada’s jurisdiction” for the purposes of Canada’s obligations under the ICCPR and the Convention on the Rights of the Child and the other is how we classify the conduct of Canadian intelligence officials who interrogated Khadr in Guantanamo in terms of human rights law.

Canadian officials interrogated in Guantanamo Bay Khadr several times between 2003 and 2004, for “law enforcement and intelligence” purposes. Khadr at that point was 16 or 17 years old, had never met with a lawyer, had not spoken with his family, and had been detained continuously at Guantanamo Bay since the age of 15. The Canadians were aware that Khadr was accused of having killed an American soldier, and although he had not been charged, the possibility of a trial before a military commission was reasonably foreseeable. They also knew that the US military was recording all of their interviews with Khadr, and thus that this material might well become part of a criminal prosecution against him. The Canadians subsequently transmitted summaries of their interrogations of Khadr to US authorities, with no caveats as to their use in criminal proceedings.

Some further information came to light in July 2008, as a result of a Canadian Supreme Court decision concerning Canada’s obligations to disclose to Khadr’s counsel the interrogation summaries which had been transmitted to the US authorities. In a document dated April 2004 and marked “Secret,” a foreign affairs official provided a summary of the Canadian interrogation of Khadr that took place in March that year. According to the summary, the Canadian official who attended Guantanamo to interview Khadr was told by his US interrogator that “In an effort to make him more amenable and willing talk, [redacted] has placed Umar on the ‘frequent flyer program’ for the three weeks before [the Canadian official's] visit, Umar has not be permitted more than three hours in one location, thus denying him uninterrupted sleep and a continued change of neighbours. He will soon be placed in isolation for up to three weeks and then he will be interviewed again.” The Canadian official proceeded with the interview of Khadr, despite learning this information.

Assuming for argument’s sake that 3 weeks sleep deprivation of a 16 year old who has already been detained for 2 years amounts to inhumane treatment under the ICCPR Art 7 and CRC Art 37(d), the question remains whether Canada (through its agents) owed any human rights obligations to Khadr when they interrogated him in these circumstances. Khadr was clearly not within Canada’s custody at this time; Canadian officials were not detaining him. Hence, under a strict factual control test, Khadr would not be within Canada’s jurisdiction. On the other hand, the line of reasoning which emphasises jurisdiction as reflecting a specific relationship between the state and the individual (which could include nationality, and also state action directly affecting the rights of the individual) would allow us to argue that Khadr is in fact “subject to” or “within” jurisdiction, just as the Uruguayan nationals denied passports by Uruguayan officials in the US were still “subject to” Uruguay’s jurisdiction. There does seem to be something quite perverse in concluding that, because Khadr was detained by the US, Canadian officials can take advantage of US abusive conduct by interviewing Khadr irrespective Canada’s obligations under the ICCPR and the CRC. Perhaps this is what the Human Rights Committee had in mind when it warned that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”

This leads to the second question, which is: how do we classify the decision of the Canadian interrogator to continue with the interview after he was explicitly informed that Khadr had been treated abusively in order to make him “more amenable” to talk to the Canadian. At a common sense level, the interviewer who proceeds after learning of this is clearly contributing to or furthering the purpose of the abusive treatment. But what does this amount to in terms of framing the state’s conduct in human rights terms? It seems to me that in these circumstances, the interviewer (acting within his delegated authority and so also incurring the responsibility of the state) has become a participant in the abusive conduct. This, in turn, violates the state’s duty to respect the right of the person within its jurisdiction to not be treated inhumanely (CRC, Art 37(d), ICCPR, Art 7) and not be coerced into making a statement (CRC Article 40.2.b(iv)). It may also violate the state’s obligation to ensure – as a standard of due diligence – that its officials do not acquiesce in or otherwise contribute to the abusive conduct of another state (the Committee against Torture has made this most explicit in paragraph 17 of its General Comment 2).

Does this also amount to “complicity”? The difficulty here, as Marko Milanovic has pointed out in an earlier post, is that it is not clear whether we have a non-criminal standard of complicity that could be applied. The standards of knowledge and intent required by Article 16 of the Articles on State Responsibility seems prohibitively high and may not capture even the conduct of the Canadian official in this case.