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2 International Human Rights Questions from PM v Khadr

Published on October 13, 2009        Author: 

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.


EJIL’s 20th Anniversary Symposia Issues – Reactions invited

Published on June 25, 2009        Author: 

As our readers will know, EJIL has been publishing Symposia issues to commemorate the 20th Anniversary of its founding.

In Issue 4 of its Anniversary Year, EJIL plans to publish a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will feature in those issues. We will select the best of the Blog, but also invite readers of the blog who may be interested in writing a reaction to pieces which were not featured on the blog to contact the Editor in Chief (joseph.weiler {at} nyu(.)edu). Reaction pieces should be in the range of 3000 words.

Filed under: EJIL, EJIL: Debate!
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Invitation to contribute to EJIL: Science and International Law

Published on June 25, 2009        Author: 

EJIL is interested in publishing articles addressing the theme of  “Science and International Law.” This theme is understood broadly and could include:

  • International law and genetically modified organisms (GMOs)
  • International law and the internet
  • International law and the uses of science in environmental regimes
  • International law and the uses of science as proof
  • International law and the status of scientific expertise

Of particular interest are contributions which develop conceptual and theoretical approaches, and which consider the challenges of using science in international litigation. Readers of the blog who are working in this area and have advanced drafts who would be interested in publishing their work in EJIL should contact Professor JHH Weiler, our Editor-in-Chief. (joseph.weiler {at} nyu(.)edu)

Filed under: EJIL, EJIL: Debate!
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ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Published on April 7, 2009        Author: 

Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar at New York University Law School.

The New York Review of Books has today posted in full the ICRC’s report (of February2007) to the CIA based on interviews with 14 “High Value Detainees”  (HVDs) who were “rendered” to CIA-run “blacksites” and held there for several  years, before finally being transferred to Guantanamo. The ICRC interviewed the HVDs one at a time as to their treatment, and provides quite a nauseating narrative of abuse, degradation and humiliation. Unsurprisingly, the ICRC concludes that the treatment met the legal definition of both enforced disappearance and torture. According to the Report’s Conclusion:

 All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of law during the time they spent in the CIA detention program. The totality of the circumstances of which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, incontravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention, which was itself a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regimes. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain, and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization.

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constitutes a torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment, constituted a gross breach of medicine ethics and, in some cases, amounted to participation in torture and/or cruel, inhumane, or degrading treatment.

One thing that struck me when reading the report was the similarities  between the nature and purpose of the techniques used by the Americans, and those used by the Egyptian and Syrian (and Iraqi) intelligence services. The latter are all much more “low-tech” but have the same aim: to crush the spirit and personality of the detainee by a devastating combination of physical and psychological mistreatment administered repeatedly over time. Indeed, some of the techniques are exactly the same: beatings, confinement in small spaces, enforced nudity, and deprivation of basic hygiene facilities. The idea is that even if detainee is saying anything (including fabricating information just to stop the pain), by breaking their will one will eventually hear from them everything that they might know, and thus obtain intelligence that can be used for further inquiries and interrogation.

None of this is about ticking bombs – indeed, the techniques presume a fairly prolonged regime of mistreatment. It is about crushing a human being’s sense of themselves as human.

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