Home Archive for category "Torture" (Page 4)

Diplomatic Assurances, Torture and Extradition: The Case of Othman (Abu Qatada) v. the United Kingdom

Published on January 18, 2012        Author: 

Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.

The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.

The Applicant’s Background

Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.

Bilateral Assurances on Torture or Ill-Treatment

As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.

Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.

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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.


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UK Case on Complicity by UK Intelligence Agencies in Torture Abroad

Published on July 5, 2011        Author: 

The United Kingdom’s Equality and Human Rights Commission (EHRC) has initiated judicial review proceedings in the High Court in London questioning the legality of instructions issued to the UK’s intelligence agencies on participation in interviews with detainees held abroad by countries with poor human rights record (see Guardian article of 28 June and the Guardian article of 29 June).The case is one of a number of proceedings in the UK in which actions of UK intelligences with respect to persons detained abroad have been called into question. The fact pattern alleged is now familiar, one intelligence agency takes part in questioning of a person detained by a foreign agency that is alleged to have tortured the detainee. Or the first agency actually requests the detention or perhaps supplies questions or other information to the foreign detaining agency. As discussed in previous EJIL:Talk! posts by Ben Batros and Philippa Web, as well as by Nehal Bhuta (see here and here), similar allegations made against Australian and Canadian agents have led to the Habib case (in Australia) and the Khadr case (in Canada). The allegations of complicity by UK agents in torture committed by foreign States led the government to establish an inquiry to look into the matter (see here).

Unlike other cases, the present case – Equality and Human Rights Commission v. Prime Minister – is not brought by a victim seeking compensation or some other form of redress or disclosure. These are proceedings which are forward looking and seeking to force the UK to change its policy as represented in instructions to its agencies. The instructions have been in existence since 2002 but they were redrafted and made public in 2010. However, the case reveals questions as to the right standard to employ when considering whether one State or its agents are in breach of international law when it participates in human rights violations by another State. A particular issue raised in these proceedings is whether participation in questioning by a foreign agency is prohibited under international law when the UK agent “knows or believes” that torture will occur or rather occurs when “there is a risk” that torture will occur? If the latter standard (which is lower) is to be adopted what type of risk will suffice so as to preclude participation in activity that creates a risk of torture or cruel or inhumane treatment? Should the standard be the “real risk” adopted in non-refoulement case or should it be a “serious risk” standard –which, arguably, is higher?                                                   Read the rest of this entry…

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Filed under: EJIL Analysis, Torture

Australian Government Settles Habib Claim arising out of Rendition and Torture and Orders Inquiry

Published on January 18, 2011        Author: 

Ben Batros is Legal Officer at the Open Society Justice Initiative and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice.

It was reported late last week that the Australian government has settled a claim brought against it by one of its citizens, Mahmoud Habib, arising out of his detention, rendition and torture by US and other foreign authorities (link).  The government will not disclose how much it paid Mr. Habib. Over a three-and-a-half year period, Mr. Habib had been detained by Pakistani authorities, then transferred by the US to Egypt, to a military base in Afghanistan, and finally on to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  Mr Habib alleges that he suffered a range of mistreatments amounting to torture and inhumane treatment.  Instead of suing the foreign agents directly responsible for the alleged abuses or pursuing a criminal prosecution, Mr. Habib brought a civil action against the Australian government for the acts of Australian officials who he claims knew of and aided in his mistreatment.  On 25 February 2010, the Full Court of the Australian Federal Court ruled that Mr. Habib’s claim could proceed, as it was not barred by the act of state doctrine (see our previous post and article on the case and that ruling)

The Australian’s government’s settlement of the case follows the British government’s decision to settle similar cases brought by 16 British citizens or residents claiming that MI5 and MI6 had colluded with the CIA in their rendition and detention at Guantanamo Bay (links here, here and here).  It’s tempting in a case like this to assume that the case was settled because the government recognised that the allegations were true, and because it did not want damaging facts to be proven in Court regarding the conduct of its officials.  And that may well be the case – before the ink was dry on the settlement deal, the Australian Prime Minister requested the  Inspector-General of Intelligence and Security to open an inquiry into the Habib case (link) in the light of witness statements that Australian authorities knew of Mr. Habib’s rendition to Egypt and were even present during interrogations there. This new evidence apparently precipitated the settlement deal (link). Read the rest of this entry…

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‘Is torture ever justified?’: The European Court of Human Rights decision in Gäfgen v Germany

Published on June 15, 2010        Author: 

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in Gäfgen v Germany. The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions. Read the rest of this entry…

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Habib v Commonwealth of Australia: A Twist on Actions Against State Officials for Torture

Published on March 4, 2010        Author: 

 Ben Batros is Appeals Counsel at the International Criminal Court and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb, is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice

Last week (on 25 February), the Australian Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] FCAFC 12).  In some respects, this case is part of several emerging trends relating to immunities and human rights. First, it concerns allegations of torture by foreign State officials, including in Guantanamo Bay (see previous EJIL:Talk! posts here and here)   and  Second, it involves an alleged victim claiming damages against a Government, which resonates with the practice in US courts under the Alien Torts Claims Act and the Torture Victim Protection Act (including the Samantar case being heard by the US Supreme Court this week – see post by Julian Ku over on Opinio Juris). Third, a Government has asked the court to throw out the case, arguing that the courts of one country cannot sit in judgment on the acts of the government of another – echoes of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi Arabia in the UK House of Lords, and the pending Germany v. Italy case at the ICJ.

But even though Mr Habib’s claim lies at the intersection of these trends, it does not follow the “typical” model of a civil claim against the agents directly responsible for the alleged abuses; nor does it pursue a criminal prosecution, where questions of immunity have recently formed a less imposing barrier.  Rather, Mr Habib’s lawyers appear to have considered the experience of similar claims abroad, and to have crafted a case which takes into account both the particular opportunities and obstacles presented by Australia’s legislative regime. As a result, the heart of dispute is the scope of the act of state doctrine, not the applicability of state immunity.

Mr. Habib, an Australian citizen, was detained by Pakistani authorities in early October 2001, and transferred to Egypt in November 2001, to Bagram airbase in Afghanistan in April or May 2002, and then to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  During these periods, Mr Habib alleged a range of mistreatments amounting to torture and inhumane treatment which Australian federal criminal law criminalises with extraterritorial (and in most cases universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision).  The Criminal Code also makes it an offence to aid, abet or counsel the commission of a crime.  Mr Habib’s allegations included that Australian police, intelligence and diplomatic officials had visited him during his detention (which was not disputed), been present during questioning, and may even have provided information used in the interrogation (paras. 17-18, 66-67), and the facts if proved might thus found criminal cases against both the foreign agents who conducted the interrogations and the Australian officials who assisted them.

To circumvent certain procedural requirements for prosecution of these particular crimes, Mr Habib’s lawyers brought a civil action.  However, with the exception of claims under the Alien Torts Claims Act in the US, civil claims for alleged torture at the hands of foreign state officials have previously been held to be barred by state immunity (notably in the UK in Jones v Saudi Arabia), as Mr Habib’s counsel expressly conceded.  So Mr Habib sued the Australian Government for the torts of misfeasance in public office and of intentional infliction of indirect harm by its officials when they aided and abetted his alleged torture. Read the rest of this entry…

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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.

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The Conviction by an Italian Court of CIA Agents for Abduction – Some Issues Concerning Immunity

Published on November 7, 2009        Author: 

As Marko reported in an earlier post, an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition”  was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (for media report, see here, here, here and here). This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States. Why is it that in this case Italy was able to exercise criminal jurisdiction over US agents? Or has the Italian court acted contrary to international law in proceeding with the case and not according immunity to the US officials agents. There are at least three types of immunity at issue here. First of all, the case raises issue as to the scope of diplomatic immunity. Secondly, the case raises issues as to the scope of consular immunity and highlights how this type of immunity differs from diplomatic immunity. The third type of immunity at issue is the immunity ratione materiae which all those who act on behalf of a foreign government are entitled to. This doctrine provides immunity from foreign criminal jurisdiction to a person where the act they have performed is essentially the act of a foreign government. Here the immunity attaches to the act itself and not so much to the official with the effect that this immunity is also available to former officials.

Issues relating to the first two types of immunity arise because some of the American defendants were US diplomatic and consular agents in Italy. It has been reported that three Americans were acquitted on grounds of diplomatic immunity. Presumably, those granted diplomatic immunity by the Italian court were members of the diplomatic staff of the US mission to Italy, which simply means they are members of staff with diplomatic rank (Art. 1 (d) of the Vienna Convention on Diplomatic Relations 1961). It would not be unusual for intelligence agents to be granted such status and the head of the CIA in Italy was one of those granted immunity in the case. However, it is also reported that the Italian Court convicted at least one person (Sabrina de Sousa) who was a US consular officer at the time of the rendition. I do not know whether the US claimed diplomatic immunity in case of those for whom immunity was granted. However, the US government did not claim consular immunity in the case of Sabrina de Sousa who then sued the US State Department in an attempt to force the US government to make such a claim (see the report in the New York Times and here for her court claim).  Although this might appear to be contradictory, there are differences in the relevant provisions of the two Vienna Conventions on Diplomatic and Consular Immunity  which might justify the difference. Both conventions provide for immunity for diplomatic agents and consular officers. Art. 43(1) of the Consular Convention provides for immunity from the jurisdiction of the receiving State “in respect of acts performed in the exercise of consular functions.” Art. 39(2) of the Diplomatic Convention provides that former diplomatic agents will continue to be immune even after they leave office, “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” It is much easier to argue that acts (even acts which may be illegal) come within the exercise of a person’s function as a member of a mission than it is to argue that acts come within the exercise of consular functions. Art. 3 of the Diplomatic Convention provides a broad definition of the functions of a diplomatic mission. These functions include: representing the interests of the sending state within the receiving state and negotiating with the government of the receiving State. Since the purpose of immunity is preclude a court from making a determination whether an act is lawful or not, it cannot be a limitation to the immunity with respect to these functions to say that they cannot extend to unlawful conduct. However, Art. 5 of the Consular Convention provides a much more specific and narrow definition of consular functions. It is difficult to argue that arranging for the abduction of a person would be an exercise of consular functions. The question here is not that such acts are unlawful but rather that they just don’t fall within the ordinary understanding of the scope of consular functions as defined in Article 5. Read the rest of this entry…

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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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