magnify
Home EJIL Analysis UK Secret Overseas Torture Policy Leaked

UK Secret Overseas Torture Policy Leaked

Published on August 5, 2011        Author: 

Yesterday the Guardian published a top secret policy in place for the UK intelligence service since 2002 in several versions, dealing with their obtaining intelligence from detainees in the custody of foreign services who may be subject to mistreatment. The document is entitled ‘Agency Policy on Liason with Overseas Security and Intelligence Services in Relation to Detainees Who May Be Subject to Mistreatment,’ and is available with a few redactions here. The policy is sure to be prove controversial; as readers are aware, an inquiry is underway in the UK regarding complicity of UK services in overseas torture, while a judicial review case has recently been brought before the High Court (see Dapo’s recent post). The policy has been replacedy a more anodyne and public version in 2010 by the new coalition government.

Note that there is at least one more prior policy that is yet to be disclosed, which covered circumstances in which UK agents were ‘directly involved’ in the questioning of a detainee in the custody of a foreign intelligence service (see para. 2 of this policy). That other document may prove to be at least as interesting.

One may find a number of things morally objectionable upon reading the policy – and it’s precisely these parts of the document that caught the eyes of the press, e.g. the explicit reference to negative publicity for the UK as a factor in a balancing exercise in deciding whether or not to give permission for UK agents to provide information to the overseas agency even when there is a risk of mistreatment. But what I found striking about the old policy was how legalistic it was, i.e. how legal advice was used to put limits (or not) on UK participation in overseas interrogation. The new 2010 policy is very different – it seemingly quite deliberately omits any substantial legal discussion.

What is even more striking is how the policy concludes that human rights law as such does not apply to the issues at hand, although it then proceeds to import some human rights standards in the rules it sets out. Crucially, as Dapo pointed out in his earlier post and as I mentioned in a post from a couple of years ago, the key question here is the extraterritorial application of human rights treaties. Do, say, detainees in Pakistani custody questioned by a Pakistani intelligence officer who are being fed questions or information by UK agents have rights vis-a-vis the UK under the human rights treaties to which it is a party, or is it only Pakistan which has obligations in this situation?

In para. 21, the policy answers that question in the negative:

Under section 6 of the Human Rights Act 1998 it is unlawful for a public authority to commit torture , or to inflict inhuman or degrading treatment, as this would be incompatible with a Convention right [Article 3 ECHR]. However, in order for the Act to apply to a detainee held overseas, the UK would need to have “effective control” of the area in which the detainee is located, as the primary jurisdiction of the Act is territorial. The Act is therefore unlikely to apply in situations covered by this policy.

 

Note how the policy refers to the spatial conception of Art. 1 ECHR state jurisdiction, as control of an area. We have seen e.g. in Al-Saadoon how that spatial conception can apply to ever smaller ‘areas’, such as a detention facility – but in this scenario, of course, the UK is not in control of the detention facility. The policy then extends the same reasoning to the ICCPR, in para. 25. It is a bit more circumspect with the CAT, in para. 24, but note how the CAT itself obliges states to prevent torture and inhuman treatment only in territories under their jurisdiction. Indeed, it was precisely the argument of the US Office of Legal Counsel in its infamous torture memos that the CAT did not apply to interrogation in CIA black sites (e.g. a former riding school in Vilnius, Lithuania)  because they did not take place in areas under US control – see more here on the water cure with saline solution.

Unpalatable as it is morally, this is not a bad legal argument. Under the spatial model of jurisdiction as in Loizidou or Bankovic, even if a UK agent were to personally stab a detainee in Pakistani custody with a hot poker the ECHR would not apply, let alone if the UK agent ‘merely’ fed the Pakistani agent with questions or information. But what of the personal model of jurisdiction, as authority and control over individuals, as e.g. in Issa, which was recently used to such effect by the Grand Chamber of the European Court in Al-Skeini?

The policy does not even entertain the possibility that jurisdiction attaches on such grounds – but of course, Bankovic would have seemed to preclude such a result. If killing is not ‘jurisdiction’, why would torture or mere feeding of questions to the torture constitute ‘jurisdiction’? Now, post Al-Skeini, the situation might be different, but we are still in uncharted waters – everything would hinge on the interpretation of the nebulous ‘public powers’ criterion that the Court has introduced there.

To my mind, there is only one sensible solution to this problem – to say that negative obligations under the treaties (i.e. the obligation to respect human rights, and not to be complicit in mistreatment or expose an individual to real risk thereof)  are territorially unlimited, and that only positive obligations under the treaties (i.e. the obligation to secure or ensure human rights even against violations by third parties) would apply to ares under the state’s effective control. To the extent that such negative obligations are not explicit in the treaties, they should be read into them implicitly, as in the ICJ’s 2007 Genocide judgment. This isin my view  the only model of extraterritorial application which is stable in the long term and does not produce arbitrary results – see more here, at 209-221. Whether courts and other decision-makers will be prepared to adopt this model anytime soon is a different matter. We’ll of course see how the UK inquiry and complicity case progress.

 

Print Friendly
 

4 Responses

  1. Ed Bates

    Interesting stuff, as ever, Marko – Thanks.

    Here’s a thought. It’s rattled off on a Friday afternoon, so I am not entirely sure it stands up to much scrutiny!

    Para 136 of Al-Skeini cites various examples from Strasbourg case law when the ‘use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction’. The para concludes, ‘The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question’.

    So, what if overseas (i.e. non-ECHR State) agents were exercising the ‘physical power and control’, but only as a proxy for the ECHR state concerned, and which was feeding questions accordingly? (I am not sure if the facts of any one case fit in with this). If so then it would surely be arguable that the ECHR state is, in effect, exercising the ‘physical power and control’, so as to trigger Article 1. Proving this would be extremely difficult, of course.

    Alternatively, what if the non-ECHR state had the full ‘physical power and control’, but agents from an ECHR state were allowed to take part in bouts of questioning? To the extent that Article 3 issues would arise (would questioning alone suffice in such a context? Recall the low threshold for Art 3 when an individual held in custody), could this be a form of temporary ‘physical power and control’? This would be very fact-specific.

    Of course, if it was ‘just’ a matter of an ECHR State feeding questions it would be hard to see how Article 1 is engaged via the ECHR.

  2. Marko Milanovic Marko Milanovic

    Thanks Ed. I fully agree that the proxy argument is a possibility, but as you say it would be very difficult to prove. Absent some serious judicial innovation, the governing standard would be the Art 6 ILC ASR placing at the disposal of the organ of one state to another state, which is a high threshold which the situations at issue don’t meet.

    As for questioning as a form of physical power and control – I certainly wouldn’t be opposed to lowering the personal jurisdiction threshold in that way. But what that invariably leads to is to the complete collapse of the personal model as a threshold. ANY act by a state that would have the capacity to violate an individual’s rights would ipso facto be an exercise of authority and control over that individual.

    This would in other words lead to my preferred model, where negative obligations are territorially unlimited. There is simply no non-arbitrary way of limiting the personal conception of jurisdiction; if questioning an individual suffices, why wouldn’t firing a missile at that individual from an aircraft (Bankovic)?

    This is what the whole ‘public powers’ business in Al-Skeini is actually meant to achieve – to limit the personal model – but the limit is arbitrary. One can read Al-Skeini, for example, as saying that the consent of the territorial state somehow matters. So if I were a litigator, I would say that Pakistan has consented to UK interrogating a prisoner, and therefore UK exercised public powers normally exercised by Pakistan, and therefore the detainee was within the UK’s authority and control. But consent is similarly an entirely arbitrary criterion.

  3. Ed Bates

    yes, I see your point about ‘public powers’ and much hinging on how far that notion can be stretched. I must confess that it did not even occur to me at first that questioning might come within this bracket – my reading of Al-Skeini was that this head of jurisdiciton would require something more governmental-like/ institutional, and of a more enduring nature.

    As to questioning triggering the ‘physical power and control’ head, this would only be so in the specific context of detention by agents of another state – so, to that extent, would it lead to the collapse to which you refer? (don’t feel obliged to reply – it’s too late on a Friday afternoon(!), which may mean that I am missing somehting)

    best wishes

    Ed

  4. ==This isin my view the only model of extraterritorial application which is stable in the long term and does not produce arbitrary results ==

    In his concurring opinion in Al-Skeini Judge Bonello said that the court should go back to the drawing board and proposed a “functional jurisdiction” test:
    “10. States ensure the observance of human rights in five primordial ways: firstly, by not violating (through their agents) human rights; secondly, by having in place systems which prevent breaches of human rights; thirdly, by investigating complaints of human rights abuses; fourthly, by scourging those of their agents who infringe human rights; and, finally, by compensating the victims of breaches of human rights. These constitute the basic minimum functions assumed by every State by virtue of its having contracted into the Convention.
    11. A “functional” test would see a State effectively exercising “jurisdiction” whenever it falls within its power to perform, or not to perform, any of these five functions. Very simply put, a State has jurisdiction for the purposes of Article 1 whenever the observance or the breach of any of these functions is within its authority and control.
    12. Jurisdiction means no less and no more than “authority over” and “control of”. In relation to Convention obligations, jurisdiction is neither territorial nor extra-territorial: it ought to be functional – in the sense that when it is within a State’s authority and control whether a breach of human rights is, or is not, committed, whether its perpetrators are, or are not, identified and punished, whether the victims of violations are, or are not, compensated, it would be an imposture to claim that, ah yes, that State had authority and control, but, ah no, it had no jurisdiction.”