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Abstract
The English courts have been unanimous and outspoken in their recognition of the prohibition of torture as a core principal of English and international law. However, when it comes to the ‘operational’ use of evidence obtained by torture carried out by others they have been more ambivalent. In A (FC) & Ors v. Secretary of State for the Home Department (No. 2), the House of Lords held that the Executive could rely on evidence obtained by torture carried out by others as long as the United Kingdom was not complicit in the torture. But what if receiving that evidence was part of complicity in it? In the case of Ahmed & Anor v. R, the Court of Appeal answered that question categorically: the passive receipt of evidence obtained by torture does not amount to complicity. Considering complicity in its broadest sense, this article challenges that conclusion, and its implications. This article suggests that when it comes to the international wrongfulness of involvement in torture it is not enough to simply look to the ‘ordinary principles’ of secondary participation. There are a number of ways in which international law may impose a lower threshold for state responsibility. On the basis of those principles, it will be argued that the Executive does not have a free rein to systematically close its eyes to the source of the intelligence it receives. In particular, in the context of ongoing and settled practices of information exchange between security agencies, the passive receipt of information known or suspected to have been obtained from torture may amount to an internationally wrongful act.
Acknowledgements
I am grateful to Dr Lutz Oette for his very helpful comments on an earlier draft of this article, and to Melanie Horn for her research assistance. All responsibility for the final content remains the author's alone.
Notes
Tom Bingham, The Rule of Law (London: Penguin, 2010), 154.
See, for example, A (FC) & Ors v. Secretary of State for the Home Department (No. 2), [2006] 2 AC 221, para. 33 per Lord Bingham of Cornhill (2005); UN Human Rights Council (UNHRC), ‘Report of the Special Rapporteur on Torture’, E/CN.4/1986/15 (1986), para. 3.
See A (No. 2), para. 53 per Lord Bingham of Cornhill.
In relation to cooperation with states known to torture, see Section II. In relation to participation in operations such as interrogations see, e.g. R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048, paras 5–41 (2008); R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs (No 2), [2011] QB 218 (2009); Human Rights Watch, Cruel Britannia: British Complicity in the Torture of Terror Suspects in Pakistan (New York: Human Rights Watch, 2009), 19–20 and 26.
See, for example House of Lords and House of Commons Joint Committee on Human Rights (JCHR), ‘Allegations of UK Complicity in Torture’ (Session 2008–09, 23rd Report, 21 July 2009); House of Commons Foreign Affairs Committee (FAC), ‘Human Rights Annual Report 2009’ (Session 2008–09, Seventh Report, 21 July 2009), paras 48–85; UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, A/HRC/10/3 (2009); Philippe Sands, ‘The International Rule of Law: Extraordinary Rendition, Complicity and its Consequences’, European Human Rights Law Review 4 (2006): 408–421; Matt Pollard, ‘Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained Through Torture by Another State’, Netherlands Quarterly of Human Rights 23, no. 3 (2005): 349–78; Naureen Shah, ‘Knocking on the Torturer's Door: Confronting International Complicity in the US Rendition Program’, Columbia Human Rights Law Review 38 (2007): 581–659.
See, for example, JCHR, ‘Allegations of UK Complicity’, para. 43; UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, paras 52–7; Silvia Borelli, ‘Rendition, Torture and Intelligence Cooperation’, in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh and Aidan Wills (London: Routledge, 2011), 104–5; UNHRC, ‘Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism’, A/HRC/13/42 (2010), 3–5 (on complicity in illegal secret detention). Argument in the recent case of Equality and Human Rights Commission v. The Prime Minister and Ors, [2011] EWHC 2401(2011) also proceeded on this basis (see para. 34).
[2011] EWCA Crim 184 (2011).
As considered by the House of Lords in A (No. 2), discussed further in the next section. For an outline of the argument in favour of such a general obligation, see Pollard, ‘Rotten Fruit’, 357–60.
Prosecutor v. Furundzija, IT-95-17/1-T, Judgment (10 December 1998) (ICTY), 121 ILR 213, paras 134–46.
Ibid., paras 153–7; R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No. 3) [2000] 1 AC 147 (HL), at 198–9 (Lord Browne-Wilkinson), 242 and 247 (Lord Hope of Craighead), 261 (Lord Hutton) and 275 (Lord Millett).
Furundzija, paras 151–2; Pinochet (No. 3), at 242 and 247 (Lord Hope of Craighead).
A (No. 2), paras 10–13 (Lord Bingham of Cornhill), 64–5 (Lord Nicholls of Birkenhead), 81–3 (Lord Hoffman), 103–4 (Lord Hope of Craighead), 129 (Lord Rodger of Earlsferry). See also Bingham, The Rule of Law, 14–17.
See, for example, the Foreign and Commonwealth Office's current Torture and Mistreatment Reporting Guidance (2010), http://www.fco.gov.uk/resources/en/pdf/global-issues/human-rights/torture-mistreatment-reporting-guidance (accessed 19 March 2012), para. 5.
There have also been serious, and in some cases proven, allegations of direct infliction of torture and ill-treatment by UK military personnel. See, e.g. Sir William Gage, Report of the Baha Mousa Inquiry, vols 1–3 (Norwich: TSO, September 8, 2011), http://www.bahamousainquiry.org/report/index.htm (accessed 19 March 2012); Al-Skeini & Ors v. United Kingdom, App. No. 55721/07 (ECtHR, GC) (2011); and R (on the application of Mousa) v. Secretary of State for Defence & Anor, [2011] EWCA Civ 1334 (CA). Such cases raise different issues to those raised by complicity in torture committed by the agents of another state and will not be further addressed in this article.
On the lengths to which the British government was prepared to go to try to keep information from the public domain in the case of Binyam Mohamed see the judgments in A (No. 2). See also JCHR, ‘Allegations of UK Complicity’, 23.
Iain Cobain and Martin Chulov, ‘Libyan Papers Show UK Worked with Gaddafi in Rendition Operation’, Guardian, September 4, 2011.
JCHR, ‘Allegations of UK Complicity’, 7–12; UNHRC, ‘Joint Study on Secret Detention’, paras 143, 159(b); Human Rights Watch, Cruel Britannia.
JCHR, ‘Allegations of UK Complicity’, 9–12.
Human Rights Watch, Cruel Britannia; FAC, ‘Annual Report on Human Rights 2007’, paras 54–63; FAC, ‘Human Rights Annual Report 2009’, paras 52–4.
Cobain and Chulov, ‘Libyan Papers’. As to Libya's record on torture at the relevant time see, for example, the 2004 report of the US Department of State on Libya, http://www.state.gov/j/drl/rls/hrrpt/2004/41727.htm (accessed 19 March 2012).
Richard J. Aldrich, ‘International Intelligence Cooperation in Practice’, in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh and Aidan Wills (London: Routledge, 2011), 18–21; UN Security Council Resolution 1373, S/RES/1373 (2001).
Ian Leigh, ‘Accountability and Intelligence Cooperation: Framing the Issue’, in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh and Aidan Wills (London: Routledge, 2011), 4–5; Craig Forcese, ‘The Collateral Casualties of Collaboration: The Consequences for Civil and Human Rights of Transnational Intelligence Sharing’, in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh and Aidan Wills (London: Routledge, 2011), 75.
Aldrich, ‘International Intelligence Cooperation’, 22–3.
Forcese, ‘The Collateral Casualties of Collaboration’, 74.
Ibid.
As Aldrich explains, intelligence agencies ‘instinctively abhor’ cooperation and exchange of information, and this motive for cooperation and intelligence sharing holds true even for traditional allies: ‘International Intelligence Cooperation’, 20–5.
See n. 6.
The courts had, however, indirectly considered the allegations of complicity in other contexts: see R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048, 71; R (Al Rawi) v. Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289(2006); Al-Rawi & Ors v. Security Services & Ors [2011] UKSC 34; EHRC v. Prime Minister [2011] EWHC 2401.
Ahmed, paras 19–20, 26–48.
A (No. 2), [2006] 2 AC 221.
Ibid., paras 34, 47 per Lord Bingham of Cornhill; 68–9 per Lord Nicholls of Birkenhead; 91 per Lord Hoffman; 132–7 per Lord Rodger of Earlsferry; 149 per Lord Carswell. Lord Hope of Craighead did not specifically address this issue.
See, for example, Florian Geyer, ‘Fruit of the Poisonous Tree: Member States’ Indirect Use of Extraordinary Rendition and the EU Counter-terrorism Strategy', ed. Centre for European Policy Studies (CEPS Working Document No. 263, April 2007), 12; International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (Geneva: International Commission of Jurists, 2009), 185.
A (No. 2), paras 1, 46, 163.
So, for Lord Brown of Eaton-Under-Heywood, it was important that ‘torture cannot be undone and the greater public good thus lies in making some use at least of the information obtained, whether to avert public danger or to bring the guilty to justice’ (at paras 160–1); see also para. 121 per Lord Hope of Craighead.
Lord Brown of Eaton-Under-Heywood at para. 161 (‘Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this.)’). For Lord Bingham of Cornhill the two issues were entirely separate: it was ‘questionable’ whether ‘the Minister would act unlawfully if he based…action on intelligence obtained by officially-authorised British torture….There would be a flagrant breach of article 3 for which the UK would be answerable, but no breach of article 5(4) or 6' (para. 47).
Ahmed, para. 4.
Ibid., paras 5, 39–40.
Ibid., para. 15.
Ibid., para. 16.
Ibid., para. 14.
Statement of David Davis MP to the House of Commons, HC Debates, Session 2008–09, Vol. 495, Pt. 107, 7 July 2009, Column 940-3. See also JCHR, ‘Allegations of UK Complicity’, 7; Human Rights Watch, Cruel Britannia, 30–4.
The trial judge did not accept that he had been beaten or his fingernails removed before the visit by British officers. He found no evidence that the officers had assisted or encouraged the Pakistani authorities to detain Ahmed unlawfully or to ill-treat him in any way: see Ahmed, paras 17–19.
Ibid., paras 20, 32.
Ibid., para. 26.
Ibid.
Ibid., para. 43.
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, para. 53.
Ibid., paras 53–5 (footnotes omitted), quoted in Ahmed, paras 45–6.
JCHR, ‘Allegations of UK Complicity’, paras 38–42.
Ahmed, para. 22.
Ibid., para. 48.
For an example of this reaction see Richard Norton-Taylor, ‘Narrowing the Definition of Torture to the Point of Hypocrisy’, Guardian, March 3, 2011.
Although it is not within the scope of this article to discuss in detail, it is also submitted that this conclusion was not required by the decision of the House of Lords in A (No. 2). As outlined above, the judgments make it clear that the issues of reliance and the legality of how the UK had obtained the information are separate and the Lords' discussions of the legality or otherwise of reliance on evidence known to be obtained by torture are linked to a ‘one off’ reliance after the fact (see paras 34, 70, and references above, n. 34).
See, for example (in the context of corporate responsibility) UNHRC, ‘Clarifying the Concepts of “Sphere of Influence” and “Complicity”, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie’, A/HRC/8/16 (2008), para. 27.
Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge: Cambridge University Press, 2011), 9; John Cerone, ‘Re-examining International Responsibility: Inter-state Complicity in the Context of Human Rights Violations’, ILSA Journal of International and Comparative Law 14 (2008): 526.
For a discussion of the domestic origins of the concept of complicity as understood in international criminal law, and its main features, see James G. Stewart, ‘The End of “Modes of Liability” for International Crimes’, Leiden Journal of International Law 25 (2012): 185–90.
International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, in Yearbook of the International Law Commission (2001), Vol. II, Pt. II, 31.
Cerone, ‘Re-examining International Responsibility’, 526–7.
Aust, Complicity, 10. See the Convention on the Prevention and Punishment of the Crime of Genocide, GA res. 260 (III) A, 78 UNTS 277 (1948), entered into force 12 January 1951 (hereinafter ‘Genocide Convention’), art. 3; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197 (1984), entered into force 26 June 1987 (hereinafter ‘Convention against Torture’), art. 4.
Georg Nolte and Helmut Philipp Aust, ‘Equivocal Helpers: Complicit States, Mixed Messages and International Law’, International & Comparative Law Quarterly 58, no. 1 (2009): 5. See also Marko Milanović, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011), 124–5.
See, e.g., Robert McCorquodale, ‘Impact on Human Rights’, in The Impact of Human Rights Law on General International Law, ed. Menno T. Kamminga and Martin Scheinin (Oxford: Oxford University Press, 2009), 246–7.
See, e.g. Convention against Torture, art. 2; European Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No. 5), 213 UNTS 222, entered into force 3 September 1953 (hereinafter ‘European Convention’), art. 1. For a comprehensive treatment of this topic see Milanović, Extraterritorial Application.
This is not limited to territory – see, for example under the Convention against Torture, Committee against Torture, ‘General Comment No. 2’, para. 7.
See, for example, the previous UK Security Agency ‘Policy on Liaison with Overseas Security and Intelligence Services in Relation to Detainees Who May be Subject to Mistreatment’, in force from 2002, which takes the approach that the obligations under the European Convention and International Covenant on Civil and Political Rights (both positive and negative) do not apply outside the UK's jurisdiction (at para. 25), available at http://www.guardian.co.uk/law/interactive/2011/aug/04/mi6-torture-interrogation-policy-document (accessed 19 March 2012).
See Milanović, Extraterritorial Application, 213.
Nolte and Aust, ‘Equivocal Helpers’, 16; Aust, Complicity, 8.
Nolte and Aust, ‘Equivocal Helpers’, 16; Aust, Complicity, 397.
Note that the link between the two is not without controversy: see, e.g., Chile Eboe-Osuji, ‘“Complicity in Genocide” versus “Aiding and Abetting Genocide”: Construing the Difference in the ICTR and ICTY Statutes’, Journal of International Criminal Justice 3, no. 1 (2005): 56–81.
See, e.g., UNGA, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (2011), commentary to Principle 17; UNHRC, ‘Clarifying the Concepts’, 10–14; Philippe Sands, ‘Memorandum to the Human Rights Joint Committee’, in Human Rights Joint Committee 23rd Report – Allegations of UK Complicity in Torture (2009), para. 15.
ILC, ‘Articles on State Responsibility’, art. 16.
Ibid., 66. Nolte and Aust argue, however, that in some circumstances a lack of intent may be offset by sufficient knowledge that the wrongdoing is occurring: ‘Equivocal Helpers’, 15.
For an overview in relation to international criminal responsibility see UNHRC, ‘Clarifying the Concepts’, paras 12–13; Pollard, ‘Rotten Fruit’, 355; Stewart, ‘The End of “Modes of Liability”’, 190. In relation to state responsibility see ILC, ‘Commentary to Articles on State Responsibility’, art. 16; and Nolte and Aust, ‘Equivocal Helpers’, 10–11.
See, for example, International Commission of Jurists, Assessing Damage, Urging Action, 85; JCHR, ‘Allegations of UK Complicity’, 42; UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, para. 55; Sands, ‘Memorandum to the Human Rights Joint Committee’, para. 11.
Although it is more difficult to argue that they have provided practical assistance, as required by the Articles of State Responsibility.
In international criminal law ‘moral support, including mere presence combined with some authority or status that has a significant legitimising or encouraging effect on the principals, can itself be sufficient to give rise to criminal liability’: Pollard, ‘Rotten Fruit’, 356.
UK Cabinet Office, ‘Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees’ (2010), paras 27–8, http://www.parliament.uk/deposits/depositedpapers/2011/DEP2011-1796.pdf (accessed 19 March 2012). See also Government Reply to the Twenty-Third Report of the Joint Committee on Human Rights 2008-09, Cm 7714 (October 2009), 3.
For example, the investigations into Binyam Mohamed's case, referred to above at n. 4. Following a two-year criminal investigation, no charges were laid on the grounds that there was insufficient evidence for a realistic prospect ‘of a criminal conviction against an identifiable individual’ (emphasis added): ‘Joint Statement by the Director of Public Prosecutions and the Metropolitan Police Service’, 12 January 2012, http://www.cps.gov.uk/news/press_statements/joint_statement_by_the_director_of_public_prosecutions_and_the_metropolitan_police_service/ (accessed 19 March 2012).
Martin Scheinin and Mathias Vermeulen, ‘Human Rights Law and State Responsibility’, in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh and Aidan Wills (London: Routledge, 2011), 257.
Council of Europe, ‘Report on the Democratic Oversight of the Security Services’, Study no. 388/2006 (Adopted by the European Commission for Democracy Through Law (Venice Commission) at its 71st Plenary Session, 2007), para. 117.
Ibid., para. 118.
Aust, Complicity, 222. See also ILC, ‘Articles on State Responsibility’, 65.
Cerone, ‘Re-examining International Responsibility’, 533.
Pollard, ‘Rotten Fruit’, 357.
See Stewart, ‘The End of “Modes of Liability”’, 191.
Aust, Complicity, 240; Nolte and Aust, ‘Equivocal Helpers’, 12, 15.
ILC, ‘Articles on State Responsibility’, art. 7.
Convention against Torture, art. 5.
See J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff, 1988), 57; Manfred Nowak, Elizabeth McArthur and Kerstin Buchinger, The United Nations Convention Against Torture: A Commentary (Oxford: Oxford University Press, 2008), 236–7; Sands, ‘Memorandum on Complicity’, paras 16–17.
Burgers and Danelius, UNCAT: A Handbook, 130; Nowak, McArthur and Buchinger, UNCAT: A Commentary, 247–8; Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations under the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, European Human Rights Law Review 2 (2006): 123.
Nowak, McArthur and Buchinger, UNCAT: A Commentary, 236–7.
Rodley and Pollard, ‘Criminalisation of Torture’, 123.
Burgers and Danelius, UNCAT: A Handbook, 130; Rodley and Pollard, ‘Criminalisation of Torture’, 123; Nowak, McArthur and Buchinger, UNCAT: A Commentary, 237.
So, for example, in relation to Azerbaijan's domestic criminalisation of torture, the committee was concerned that it did not fully comply with article 1 of Convention against Torture because it failed to ‘provide for criminal liability of officials who have given tacit consent to torture’: CAT/C/CR/30/1, para. 5(b), cited in Nowak, McArthur and Buchinger, UNCAT: A Commentary, 237. See also Committee against Torture, ‘Concluding Observations on Slovakia’, CAT/C/SVK/CO/2 (2009), para. 5; ‘Concluding Observations on Cambodia’, CAT/C/KHM/CO/2 (2011), paras 11 and 16; and ‘General Comment No. 2’, paras 7 and 17.
UN Subcommittee on Prevention of Torture, ‘Report on the Visit to the Maldives’, CAT/OP/MDV/1 (2009), paras 132 and 305; ‘Report on the Visit to the Republic of Paraguay’, CAT/OP/PRY/1 (2010), paras 109 and 268.
UNHRC, ‘Joint Study on Secret Detention’, para. 39.
International Commission of Jurists, Assessing Damage, Urging Action, 185.
Nowak, McArthur and Buchinger, UNCAT: A Commentary, 78.
Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America) 1984 ICJ Rep 246, para. 130 (1984); cited in Nolte and Aust, ‘Equivocal Helpers’, 23.
Nowak, McArthur and Buchinger, UNCAT: A Commentary, 78.
This is supported by the approach of the ICJ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, 43 (2007) (hereinafter Genocide Convention case), at para. 167.
It is submitted that where a specific interpretation applies to the term under the treaty, that specific interpretation should prevail – both in respect of states, and individuals: see art. 55 of the Articles on State Responsibility, but cf. Aust, Complicity, 393.
Note that there is no territorial limitation on the obligations to criminalise complicity in torture under the Convention against Torture (art. 4).
The obligation to ‘establish jurisdiction’ by investigating and attempting to prosecute such acts extends to acts committed by any national, wherever they occurred (art. 5). See Nowak, McArthur and Buchinger, UNCAT: A Commentary, 254–5; Rodley and Pollard, ‘Criminalisation of Torture’, 129. On the mandatory nature of the obligations under art. 5 see also Committee against Torture, Suleymane Guengueng et al v. Senegal, Communication No. 181/2001, CAT/C/36/D/181/2001 (2006), paras 9.4–9.5.
ILC, ‘Articles on State Responsibility’, 112.
Ibid., 113.
Articles on State Responsibility, article 40(2). The commentaries provide that: ‘[t]o be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects’ (at page 113).
Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Reports 1971 16, para. 117 (1970); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 136, para. 159 (2004).
The commentaries note that it may be open to question whether general international law at present prescribes a positive duty of cooperation and observes that article 41(1) in that respect may reflect the progressive development of international law (at page 114).
Pollard, ‘Rotten Fruit’, 364–71. See also Aust, Complicity, 397–401.
For a general overview see Cordula Droege, ‘Transfers of Detainees: Legal Framework, Non-refoulement and Contemporary Challenges’, International Review of the Red Cross 90 (2008): 670–6.
Soering v. The United Kingdom, Series A No. 161(1989) (ECtHR); Human Rights Committee, General Comment No. 20, CCPR/C/21/Rev.1/Add 13, (2004), para. 12; and General Comment No. 31, HRI/GEN/1/ Rev.1, (1994), para. 9.
See, for example, Milanović, Extraterritorial Application, 209–10.
Soering, para. 91. Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/59/324 (2004), para. 28: ‘[t]he principle of non-refoulement is an inherent part of the overall absolute and imperative nature of the prohibition of torture and other forms of ill-treatment’.
Soering, para. 91. See also Aust, Complicity, 396. Compare with the Court of Appeal's objection in the Ahmed case that the ‘wider concepts of complicity’ could lead to a situation where complicity in torture could be found even where the torture had not taken place (at para. 46).
Pollard, ‘Rotten Fruit’, 370; Dapo Akande, ‘UK Case on Complicity by UK Intelligence Agencies in Torture Abroad’, blog post, July 5, 2011, http://www.ejiltalk.org/uk-case-on-complicity-by-uk-intelligence-agencies-in-torture-abroad/ (accessed 19 March 2012).
Pollard, ‘Rotten Fruit’, 370.
Ibid., 370, referring to Bankovic v. Belgium, 12 December 2001, Application No. 52207/99 (ECtHR), paras 68 and 77.
Milanović, Extraterritorial Application, 209–28. See also Pollard, ‘Rotten Fruit’, 361–4.
UK Cabinet Office, ‘Consolidated Guidance to Intelligence Officers’, 6.
Corfu Channel Case (United Kingdom v. Albania); Merits, ICJ Reports 1949, 4, at 22; ILC, ‘Articles on State Responsibility’, 64.
For an overview see Andreas Zimmerman, ‘The Obligation to Prevent Genocide: Towards a General Responsibility to Protect’, in From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, ed. Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (Oxford: Oxford University Press, 2011); Aust, Complicity, 41. The English Court of Appeal has also taken the position that intervention is not required as a matter of customary international law: R (Al Rawi) v. Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 (2006), at 102–3 per Laws J., although judges of the High Court questioned this categorical conclusion in R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048, paras 178–9.
See, for example, Ilascu v. Moldova and Russia, Application No. 48787/99, Judgment of the Grand Chamber of 8 July 2004, ECHR 2004-VII, 179 (ECtHR); Cyprus v. Turkey, Judgment of the Grand Chamber of 10 May 2001, ECHR 2001-IV, 1 (ECtHR).
The court considered ‘complicity’ of a state to be the same as ‘aiding and assisting’ an internationally wrongful act under article 16 of the Articles on State Responsibility. This narrower view of complicity has been criticised; see, for example, Marko Milanović, ‘State Responsibility for Genocide: A Follow-Up’, European Journal of International Law 18, no. 4 (2007): 681–2.
Genocide Convention, article 1, para. 427.
Ibid.
Para. 430.
Ibid.
Para. 431.
Para. 429.
Convention against Torture, arts 4, 5 and 7.
Genocide Convention, art. 4.
Genocide Convention case, para. 426.
For a contrary view see Zimmerman, ‘The Obligation to Prevent Genocide’, 635. However, this approach finds some support in a general theory of state bystander responsibility developed by Monica Hakimi, who argues that where a bystanding state has a relationship with the abuser that has substantially enabled it to violate rights, and there is a foreseeable risk of such harm occurring, the state it must its best efforts to prevent the harm arising: Monica Hakimi, ‘State Bystander Responsibility’, European Journal of International Law 21, no. 2 (2010): 376–9. See also Aust's discussion of the flexible approach taken by courts in relation to the issue of jurisdiction, and the ‘general tendency’ discernible that ‘under human rights law, states are ever more frequently held responsible for human rights violations they have not themselves committed’: Aust, Complicity, 415.
See Furundzija, paras 147–57.
See Hakimi, ‘State Bystander Responsibility’, 376–9.
This could be complicated by the use of caveats and assurances sought by the cooperating state on the fact that torture or ill-treatment has not occurred, although on the limits to the effectiveness of such assurances and their inability to override provisions of the Convention against Torture, see Committee against Torture, Agiza v. Sweden, Communication No. 233/2003, CAT/C/34/D/233/2003 (2005).
A (No. 2), para. 34 per Lord Bingham of Cornhill; R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048, para. 180.
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, para. 55.
A (No. 2), para. 34.
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin’, para. 55.
‘Agency Policy on Liaison with Overseas Security and Intelligence Services in Relation to Detainees Who May be Subject to Mistreatment’, para. 26, published online by The Guardian newspaper on 4 August 2011, http://www.guardian.co.uk/law/interactive/2011/aug/04/mi6-torture-interrogation-policy-document (accessed 19 March 2012).
See UNGA, ‘UN Joint Study on Secret Detention’, para. 159, on this point in relation to complicity of states in the secret detention of persons of interest to it.
So, for example, in 2011 the UK and Pakistani Prime Ministers agreed to: ‘deepen co-operation on fighting terrorism by widening intelligence sharing, increasing UK aid to put 4 million children into school and setting up a joint centre of excellence to fight roadside bombs’: Patrick Wintour, ‘David Cameron to Step up Co-operation with Pakistan in Fight against Terror’, Guardian, April 5, 2011.
UK Cabinet Office, ‘Consolidated Guidance to Intelligence Officers’, para. 8.