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.