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? The government’s instructions say that UK agents should withdraw from involvement where they know or believe that torture or cruel or inhuman treatment is taking place. Also, where UK agents believe that there is a “serious risk” of such treatment they must consult their superiors and must not proceed unless the view is taken that such risk does not exist or can be mitigated to below the threshold of “serious risk”, eg by use of diplomatic assurances. However, in what is perhaps the most controversial aspect of the guidance, Ministers are to be consulted where senior personnel and legal advisers consider that there is a serious risk but the guidance does not state that Ministers must order that participation in the questioning shall not take place where such a serious risk exists. According to the guidance:
Ministers will consider whether it is possible to mitigate the risk of torture or CIDT occurring through requesting and evaluating assurances on detainee treatment; whether the caveats placed on information/questions would be respected by the detaining liaison partner; whether UK involvement in the case, in whatever form, would increase or decrease the likelihood of torture or CIDT [torture and cruel, inhuman or degrading treatment or punishment] occurring.
In the hearings held last week, the EHRC argued that
the instructions should prohibit any action where there is a “real risk” of torture, and that the words “know or believe” set the threshold too high. Furthermore, the commission argues that requesting that an individual be detained by an overseas intelligence agency known to use torture could lead to complicity in torture. “If UK personnel solicit the detention of an individual by a foreign state knowing there is a real risk of torture, and as a direct result of that solicitation that individual is then tortured by foreign state agents, we say that involves the UK in a breach of its international obligations … and involves the commission of a domestic law crime of aiding and abetting an act of torture,”[Ben] Emmerson [QC, acting for the EHRC] said. (see Guardian report of 28 June)
By contrast, lawyers for the government argued that:
British intelligence officers can be said to have acquiesced in torture only if they “know or believe” that their actions will result in a prisoner suffering severe mental or physical pain or suffering. This does not amount to tacit consent or turning a blind eye, they say. [See Guardian article of 29 June)
I haven’t seen the detailed arguments made by both sides but it seems to me that there are at least 4 possible obligations at play here:
i): a positive obligation on the part of the UK, possibly arising from human rights treaties, such as the European Convention on Human Rights (ECHR), the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) not to engage in activity which exposes an individual to a risk of torture or inhuman and degrading treatment.
ii): a possible negative obligation on the part of the UK, and arising from the ECHR, the CAT and the ICCPR not to be complicit in torture or to acquiesce in torture.
iii): a possible obligation arising under general international law (and in particular under Article 16 of the International Law Commission’s articles on State Responsibility) not to be complicit in the internationally wrongful acts of another State.
iv): the obligation of UK State agents under international criminal law not to aid and abet or to be complicit in torture committed by others.
It seems to me that there are different considerations at play with respect to each of these obligations. Some of these issues were noted in the previous post by Nehal Bhuta on the Khadr case and in Marko’s post of a couple of years ago assessing a UK Parliamentary Report on complicity in torture.
With regard to obligation i above, the case law of the human rights tribunals is pretty clear that States have an obligation not send or return individuals to places where they will be exposed to a real risk of torture or inhuman and degrading treatment. (See the latest decision on this by the ECHR in Sufi and Elmi v. United Kingdom). The first question here is whether the obligation not to send or return persons to a situation where they face the risk of torture is part of a more general obligation not to engage in activity which exposes the person to that risk of torture. The second question here is what standard of risk are we talking about: a “real risk” or a “serious risk”? The third question is if such a general obligation exists, to what extent does this obligation extend extraterritorially to a person not detained by the UK. I think the first question above should be answered in the affirmative. There is no reason why sending or returning a person to a risk of torture should be any different from other acts which have the effect of exposing the person to torture or inhuman treatment. Article 3 of the CAT has a specific obligation on non-refoulement but that obligation is read into ECHR and is not explicit on the face of the ECHR. Other acts which expose a person to a risk of torture ought also to be read in to the positive obligation to prevent torture. Despite the arguments in the present case, I think the standard of risk ought to be the same as in the non-refoulement cases as the non-refoulement cases are just a specific manifestation of a more general principle. The big difficulty here is really the extraterritorial application question. This is a point Marko made in his post of a couple of years ago.
With obligation (ii) above it may be argued that since torture includes infliction of serious pain carried out withthe acquiescence of a public official, the official in question is himself committing torture by acquiescing. On this argument, the participation by a State official (in the form of acquiescence) in the infliction of serious pain is itself part of the primary obligation not to commit torture. I don’t know if this argument has been made in any previous cases and I’d be grateful for reactions to it. It may also be argued that the positive obligation to prevent torture is to be read as including a negative obligation not to be complicit in acts of torture (as the ICJ in the Genocide Convention case read the positive obligation to prevent genocide as implicitly containing a negative obligation not to commit genocide). Again here, questions of extraterritorial application of the treaties will apply.
Obligation iii (complicity under Article 16, ILC articles on State Responsibility) relates to aid or assistance given by one State to another in the commission of an internationally wrongful act. But the assisting State must know of the circumstances of the illegality and the act must be wrongful if committed by the assisting State. Obligation iv is similar but relates to the obligation of individuals not to assist in the commission of international crimes. With both obligations, the main question is what does assist or aid or abet mean? With Art. 16, the ILC commentary suggests that the act must contribute significantly to the wrongful act. The position is probably the same under international criminal law which would require that the act of the aider have a significant effect on the commission of the crime. However, significant contribution might include moral support which may be demonstrated by mere presence at the commission of the wrongful act.
Quite aside from the merits of the issues in the case in the UK courts another question is whether the Court should even engage in the review at all. Are the issues non-justiciable or even if justiciable should they be decided in the abstract without reference to particular facts. Given that the case deals with individual rights there is scope for the court to reject arguments about non-justiciability but it might decide that it doesn’t want to decide on these issues in the abstract