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The Swiss Referendum on the Prohibition of Minarets

Published on December 2, 2009        Author: 

 Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schücking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe).

The constitutional context of the popular vote of November 29

On 29 November 2009, the Swiss people voted in a popular referendum in favour of an absolute prohibition of the construction of minarets on Swiss territory. The vote was 57.8 % in favour, and 23[1] of the 26 cantons were in favour of the prohibition. The turnout was 53.4 %, which is relatively high for Switzerland.

Currently, four minarets exist in this country, and one application for a construction permit is pending. The legal consequences for this pending application are not entirely obvious, whereas the consequences for future buildings of minarets are clear: Due to the popular decision, a new provision will be inserted into the Swiss Federal Constitution (Bundesverfassung/Constitution Fédérale)[2] which will enter into force immediately. The new Article 72(3) will be: “The construction of minarets is prohibited.”[3]

The federal referendum was triggered by a popular initiative launched in April 2007 by a group of 16 people, 14 of whom were members of the “Schweizerische Volkspartei” (Swiss Popular Party), whose political programme is partly directed against migrants.

Under the Swiss Federal Constitution, a federation-wide popular initiative can be launched by gathering 100’000 signatures of Swiss citizens (a population of roughly 7 million) within 18 months (Art. 139). Reaching this threshold was no problem in the case of the anti-minaret- initiative. The sufficient number of signatures was collected in July 2008.

Once the threshold had been passed, and the formal correctness of the proceeding had been verified by a governmental office, the material validity of the initiative was scrutinized before the text of the initiative itself was put to vote. The Swiss Federal Constitution prohibits popular initiatives which “infringe preemptory norms of international law” (Article 139(2)). It is incumbent on the federal parliament to examine whether this is the case or not (Article 173 (1) lit f.)). The reason for vesting the power of scrutiny in parliament and not in the federal court is respect for popular sovereignty. According to the framers of the constitution, the verdict of inadmissibility of an initiative, a verdict which obviously curtails popular sovereignty, should only be pronounced by that federal body which enjoys the most direct democratic legitimacy. Parliament is composed of the directly elected representatives of the people, whereas the Swiss federal court has only an indirect democratic basis (the judges being elected by the parliament).

In the case of the anti-minaret-initiative, the parliamentary decision was easy. The initiative affects the freedom of religion as guaranteed under the Swiss constitution and under Article 9 of the European Convention of Human rights (ECHR), Art. 18 of the Covenant on Civil and Political rights (CCPR), and the international legal prohibitions of discrimination (Art. 14 ECHR and 2(1) CCPR). However, it is quite obvious that these fundamental rights do not pertain to the body of ius cogens, as defined in international law, accepted by Swiss practice, because a large number of states do not accept religious freedom, and many have submitted reservations relative to religious freedom to the universal human rights instruments. In the Parliamentary Resolution on the admissibility of the popular initiative,[4] the Swiss Federal Parliament highlighted that the adoption of the initiative would entail a violation of international law. However, Parliament did not have the power to declare the initiative inadmissible and void, because the wording of the constitutional clause on the inadmissibility of initiatives is clearly limited to ius cogens.

Therefore, the initiative had to be put to a popular vote, and the government fixed the date of 29 November 2009. During the campaign, almost all political parties and the government recommended the people to vote against this initiative. The clear supportive result of 29 November was a big political surprise, because previous opinion polls had predicted only between 30 and 40 percent of approval, which would have not sufficed for an endorsement of the proposal. The clear outcome manifests a widespread diffuse fear of islamisation. The “victorious” Swiss popular party immediately announced to launch a second initiative targeted at a prohibition of burcas in the public sphere.

Domestic remedies against the prohibition

It is foreseeable that individuals will seek to challenge the new constitutional prohibition before the domestic judiciary. Clearly those persons will have ius standi who apply for a construction permit for minarets. Such an application will – due to the novel constitutional prohibition – necessarily be denied by the competent local authorities.

After exhausting the domestic remedies, such an applicant will be entitled to raise a constitutional complaint before the federal court with the claim that his or her freedom of religion has been violated by the refusal. The federal court (Bundesgericht) will not have any margin of discretion in deciding such a complaint, because the new provision prohibiting the construction of minarets has constitutional status. It therefore constitutes a constitutionally entrenched restriction of the constitutional rights guaranteeing the free exercise of religion (Article 15 of the Swiss Federal Constitution) and of the constitutional prohibition of discrimination on the ground of religion (Art 8(2) Swiss Federal Constitution). So far, the notion of “unconstitutional constitutional law” has not been accepted in Swiss constitutional doctrine. The prohibition of minarets has been adopted by the sovereign with the clear intention and in full cognizance of the curtailment of fundamental freedoms going with it. Therefore there seems to be no room for balancing in order to solve the conflict between the two opposing constitutional precepts.

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Zimbabwe and the Kimberley Process: Just how effective are Multi-stakeholder Initiatives?

Published on November 24, 2009        Author: 

Lucy Koechlin is a member of the Institute of Sociology/Centre of African Studies, University of Basel, Switzerland

Just a couple of weeks ago, against the explicit recommendations by its own review mission, the annual plenary of the Kimberley Process decided against suspending Zimbabwe as a member – in spite of documented violations of its minimal criteria, including the involvement of the government of Zimbabwe in illicit diamond trading and systematic human rights abuses in the diamond mine of Marange.

Not surprisingly, NGOs have sharply criticised the decision. According to a recent press release by Global Witness, the

“failure to suspend Zimbabwe points to fundamental weaknesses in the scheme’s procedures and to a serious lack of political will to take decisive action when countries are not implementing minimum standards. …  This undermines the scheme’s effectiveness and compromises those participants who implement the system in good faith. It also sends the message that there will be no serious consequences for those who break the rules.”

This incident is highly illustrative of several key questions surrounding the effectiveness and credibility of Multistakeholder Initiatives (MSI) in general. MSI are particularly suited to addressing complex governance issues that involve national and international actors across all sectors. Next to the Extractive Industry’s Transparency Initiative (EITI), the Kimberley Process may be the most well known of such international initiatives. Strictly speaking, the Kimberley Process is an intergovernmental initiative, as full participation can only be granted to states or regional governmental organisations (such as the EU). However, to all intents and purposes, the Kimberley Process is a classic multistakeholder initiative, with substantial influence and participation from both the diamond industry as well as international civil society. Indeed, the initiative itself emerged in the wake of influential reports by Global Witness and other international NGOs pinpointing the role of so-called ‘blood diamonds’ that fuelled violent conflicts in Angola, Sierra Leone or the Democratic Republic of Congo. The increased sensitisation led both the diamond industry as well as producing and trading countries to address the root causes of the illicit trading of rough diamonds. In November 2000, realising that the problem cannot be tackled by a single actor, concerned governments, companies and NGOs brought the Kimberley Process Certification Scheme (KPCS) to life. The objective of this voluntary, self-regulatory initiative is to flag the origins of internationally traded diamonds, to prevent the illicit mining and trading of rough diamonds, and thus to cut off illicit proceeds flowing into the financing of rebel groups.

 Given the complexities surrounding the mining and trading of rough diamonds, the Kimberley Process has accomplished much. Firstly, it has defined import/export control regimes for governments as well as control systems governing the private sector. Secondly, today, not least due to a unique diamond data base, it is possible to trace the trail of rough diamonds from mine to polished form. And most pertinently, thirdly, as a result of the KPCS only certified diamonds are permitted to enter international markets. Looking at the different governance functions that such MSI can fulfil (see Koechlin/Calland 2009), the KPCS ticks many boxes: in terms of moral standards, its very existence signifies a public acknowledgment that governments and the private sector bear an ethical responsibility with regard to the revenues of diamond trading. On a more practical level, the KPCS has provided a platform for dialogue and engagement amongst very different stakeholders; it has effectively set direly needed standards in a messy and unregulated area; it is supporting capacity-building of members with regard to the required control systems; and lastly, through ongoing peer reviews and regular meetings by the Plenary and Working Groups, best practices amongst members and knowledge exchange across sectors is encouraged.

So far so good. But the main problem facing multi-stakeholder initiatives is that they lack teeth. Read the rest of this entry…

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20th Anniversary of the UN Convention on the Rights of the Child

Published on November 20, 2009        Author: 

Today marks the 20th anniversary of the adoption by the UN General Assembly of the Convention on the Rights of the Child. The Convention has become the most widely ratified treaty after the Geneva Conventions of 1949 (which have 194 States Parties). There are now 193 States Parties to the Convention on the Rights of the Child, meaning it has more parties than to the Charter of the United Nations (which has 192). Only the United States and Somalia are not party to the Convention. Two Optional Protocols additional to the Convention were adopted in 2000. One on the involvement of children in armed conflict and the other on the sale of children, child prostitution and child pornography.

In addition to specific rights the Convention lays down the basic principle that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration

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Abu Omar Rendition Conviction

Published on November 4, 2009        Author: 

Major news outlets have reported the (perhaps somewhat surprising) conviction of 23 American and 2 Italian intelligence agents by an Italian court for the 2003 ‘extraordinary rendition’ of Abu Omar (for coverage, see here, here, here) and here. This is I believe the first such conviction in any Western country – the decision itself was announced orally, while the written reasons will follow eventually. Our readers might be interested in a topical article (available on SSRN) on the Abu Omar case by Francesco Messineo, which is due to be published shortly in the JICJ, and which I’ve had the opportunity to read in draft.

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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.

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Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada

Published on October 7, 2009        Author: 

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords.

Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.

 The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct (some of it traditionally diplomatic, some of it outright hostile) under the guise of the doctrine. But as this brief summary of the current status of diplomatic protection shows it has yet to reach its full potential in either international or municipal human rights law.

 In its report on the subject in 2006, the International Law Commission (ILC) proposed a Convention on Diplomatic Protection which would attempt to resolve the dislocation between the traditional understanding of diplomatic protection as a discretionary right of the state and contemporary human rights vested in individuals. However, the ILC did not adopt the recommendation of its Rapporteur, John Dugard, that the Convention require states to guarantee an individual right to diplomatic protection. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should be encouraged to exercise diplomatic protection ‘especially when significant injury occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. Discussions in the Sixth Committee at the sixty-second session of the General Assembly 2007  raised the prospect of imposing a positive obligation on states to protect their nationals abroad, but diplomatic protection is not up for consideration by the Sixth Committee again until next year and it remains to be seen whether a Convention will ever be approved. For now at least, customary international law offers little comfort to those suffering human rights abuse abroad.

 In municipal law, the status of an individual right to protection, or a duty to protect, as the Canadian courts conceptualised it in Khadr, is equally uncertain. Read the rest of this entry…

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Sorting Out the Torture Memo Issues, Part II: Deriving Appropriate Frameworks for Establishing Legal Culpability

Published on September 19, 2009        Author: 

In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law. Read the rest of this entry…

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Goldstone Report on Gaza: A Question of Trust

Published on September 16, 2009        Author: 

I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.

Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.

And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.

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Sorting Out the Torture Memo Issues, Part I: The Devaluation of Non-Penal International Norms

Published on September 15, 2009        Author: 

Editor’s Note: See herefor a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. Read the rest of this entry…

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Report on UK Complicity in Torture

Published on August 5, 2009        Author: 

On Tuesday the Joint Parliamentary Committee on Human Rights published its report on allegations of UK complicity in torture. I would particularly like to draw our readers’ attention to the Committee’s legal analysis of the scope of the UK’s obligations as a matter of two treaties, the UN Convention against Torture and the European Convention on Human Rights, at para. 17 ff.

Though I am in broad agreement with the Committee’s observations, I am somewhat troubled by the emphatic nature of their conclusion that

There is therefore no room for doubt, in our view, that complicity in torture would be a direct breach of the UK’s international human rights obligations, under UNCAT, under customary international law, and according to the general principles of State Responsibility for internationally wrongful acts.

The Committee’s analysis does tend to paper over a number of very complex issues. For instance, the text of the UNCAT does not explicitly provide for a state obligation not to commit torture or not to be itself complicit in torture. Rather, it (1) provides for a positive obligation of states to prevent acts of torture within territories under their jurisdiction (Art. 2), and for a (2) positive obligation to criminalize acts of torture committed by individuals (Arts. 4 & 5). A negative obligation, and consequent state responsibility for the internationally wrongful act of torture committed by an individual whose actions are attributable to the state, is not written in the treaty. It can only be inferred from it by implication, much in the same way as the ICJ in the Bosnian Genocide case inferred a negative state obligation not to commit genocide through its organs or agents from a similarly worded treaty, the Genocide Convention.

Second, in regard of the CAT, but even more in regard of the ECHR, there is the problem of the extraterritorial application of the treaties. For instance, it is far from clear under the existing jurisprudence of the European Court (above all Bankovic) that the UK would bear state responsibility even if one of its own agents actually tortured a person held by Pakistani authorities in Pakistan (or wherever), let alone so if the UK was ‘merely’ assisting a Pakistani torturer.

Third, there is some degree of conceptual confusion in the Committee’s report between complicity as a notion of (domestic or international) criminal law applicable to individuals, and complicity as a matter of state responsibility, as set out in Article 16 ILC ASR. (Much of the same confusion was evident in the Bosnian Genocide case, on which see more here, at 680 ff). Just to give one example, Article 16 could in no way be applied to the ECHR for torture done in, say, in Pakistan or Uzbekistan, because these two states are not parties to the ECHR, and Article 16(b) requires that both the state committing an act and the state complicit in the act share the same legal obligation. It is only if Article 3 ECHR was interpreted as setting out a distinct wrongful act of state complicity in torture that the UK could be responsible, and there is no case law directly on point – and again, there is also the Article 1 jurisdiction issue.

Having said this, of course, the Committee is a political, not a judicial body, and it can’t be expected to cover all the nuances in a legal question. It will hopefully thus manage to serve its main advocacy purpose of putting further pressure on the government to disclose some of its more nefarious dealings. If, however, a case of UK complicity in an extraterritorial act of torture were to be actually litigated, particularly before the European Court, it would be far from free of any doubt.

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