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UK Metropolitan Police Investigate MI5 Complicity in Torture

Published on February 20, 2010        Author: 

In a story in The Guardian today, it was reported that the UK’s Metropolitan Police are investigating MI5 for complicity in US torture in relation to the case of Guantanamo detainee Aamer Shaker. Shaker is a permanent resident of the UK and is married to a UK citizen. The report claims that “Investigating officers have applied to the high court for the release of classified documents relating to the case. They are already investigating claims of MI5 complicity in the ill-treatment of British resident Binyam Mohamed while being held by the US.”

If the story is accurate, it represents an interesting development. Over the last 9 years, western intelligence agencies have repeatedly sought to “piggy-back” upon abusive interrogations conducted by the US directly or by one of its “war on terror” allies (Egypt, Jordan, Morocco, even Syria). This piggy-backing has taken various forms, from sending questions to be put to individuals detained by one of these allies (while feigning ignorance of the risk of torture this may pose to the detained person), to attending places of detention in the aftermath of abusive interrogation to question the detainee directly (such as in the case of Omar Khadr and Binyamin Mohammed).

When these visits have been revealed, the intelligence agencies and their governments have often denied that they have violated any aspects of the prohibition on torture, because the detainee is not in their custody (and so not within jurisdiction) and because (they argue) such conduct does meet the requirements of the international or domestic criminal law tests for “complicity.”

So far, it has not been possible to test their claim about whether such conduct could amount to complicity under national or international criminal law, because no serious criminal investigation has been undertaken into the facts (including, importantly, the mental states and state of knowledge of the intelligence agents who conducted these visits and those who ordered them to do so). The inquiries that I am aware of, such as the Arar Inquiry and the Iacobucci Inquiry (both Canadian government inquiries into the conduct of Canadian officials towards Canadian nationals detained and tortured in Syria) have not had a mandate to examine questions of criminal complicity.

A UK domestic prosecution of one of its own intelligence agents for complicity in US torture would be an extraordinary development. It would set an example for many other states which have engaged in similar activities of what a rigorous application of the rule of law might look like. It might also help to ensure that the dreadful tolerance for torture and abusive interrogation at the hands of third parties that many western intelligence agencies have shown in the aftermath of September 11 will not be repeated.

Filed under: EJIL Analysis, Torture
 
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JHHW to Stand Trial in France for Criminal Libel – Refusal to Remove a Bookreview which Displeased the Author of the Reviewed Book

Published on February 11, 2010        Author: 

The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

Editorial

JHHW
Editorial: Book Reviewing and Academic Freedom
Eur J Int Law 2009 20: 967-976; doi:10.1093/ejil/chp114 [Full Text] [PDF]   

EJIL: Debate! Anniversary Edition

 
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Canadian Supreme Court decision in Khadr

Published on January 29, 2010        Author: 

Late last year, we posted some reflections by myself and Elizabeth Prochaska on the pending Canadian Supreme Court case of the Prime Minister & Ors v Omar Khadr.

The court handed down its decision today, allowing the Prime Minister’s appeal in part. The court held that the trial court’s remedial discretion had miscarried and that an order directing the Prime Minister of Canada to seek Khadr’s repatriation was – at least for now – an impermissible intrusion upon the Executive’s prerogative in foreign affairs.

The result is disappointing, from the point of view of those of us who had hoped that the Supreme Court might force the hand of the Harper government by ordering to do what it has steadfastly refused to do – request Khadr’s return to Canada after seven and a half years in GTMO.

However, the decision (which was unanimous) is an interesting combination of deference to executive decision-making on the matter of requesting repatriation, and categorical condemnation of Canadian agents’ complicity in an abusive detention and interrogation regime.

The court held:

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case  did not conform to the principles of fundamental justice. That conduct may be briefly reviewed.  The statements taken by CSIS and DFAIT were obtained through participation  in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus.It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in  Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld).  In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12).  The purpose of the interviews was for intelligence gathering and not criminal investigation.  While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance.  Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations.  Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past.  But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future.  The impact of the breaches is thus perpetuated into the present.  When past acts violate present liberties, a present remedy may be required. Read the rest of this entry…

 
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