Allegations of UK Complicity in Torture - Human Rights Joint Committee Contents

3  The meaning of "complicity"

The nature of the allegations

17. It is not alleged that the UK Government or its agents have themselves engaged in torture, or directly authorised torture. The essence of the allegations which we have summarised in chapter 2 above is that the UK Government and its agents have been complicit in the use of torture by others. The alleged complicity is said to have taken a number of different forms, including (but not necessarily confined to) the following:

18. Each of these, it is alleged, amounts to complicity in torture by the various UK agents concerned, which is in direct breach of the UK's human rights obligations. Moreover, it is alleged that the UK Government's practice in these various respects amounts to a policy of complicity in torture, which has ministerial authorisation, and which is also in breach of the UK's human rights obligations.

19. The allegations raise a number of detailed factual questions, to which we return below. Which facts are relevant, however, is determined by a number of prior legal questions. First, is complicity in torture unlawful? Second, if it is, what does "complicity" mean in this context? What are the facts which would need to be proved in order to demonstrate that individual agents have been complicit in torture, or that a Government policy of complicity existed?

Is complicity in torture unlawful?


20. UNCAT expressly prohibits complicity in torture as well as torture itself. Article 4(1) provides:

"1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."

21. Article 6 of UNCAT also requires the UK to take into custody any person present in the UK who is alleged to have committed an act constituting complicity or participation in torture if satisfied, after an examination of information available, that the circumstances so warrant, and it must then immediately make a preliminary inquiry into the facts.

22. The UK is therefore under a positive obligation under UNCAT, both to make it a criminal offence in UK law for any person to commit an act which constitutes complicity or participation in torture, and to investigate credible allegations of complicity or participation in torture, including by detaining any person present in the UK who is alleged to have committed any such act.


23. There is no equivalent to Article 4 of UNCAT in the ECHR, but the European Court of Human Rights has long recognised that the deportation or extradition of a person to another State where he is likely to suffer inhuman or degrading treatment or punishment constitutes a breach, by the removing State, of the prohibition of such treatment contained in Article 3 ECHR.[42] This well established line of Strasbourg case-law can be seen as recognition by that Court of a form of complicity in torture or inhuman or degrading treatment, in the shape of the facilitation by States of torture or inhuman or degrading treatment even where they do not themselves carry out the treatment in question.


24. Complicity in torture conducted by other States or their agents is also recognised to be unlawful under general international law principles of State Responsibility for internationally wrongful acts. Torture is recognised to be an internationally wrongful act, under the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, regional human rights treaties such as the European Convention on Human Rights, UNCAT and as part of customary international law. The prohibition against torture is recognised as what international lawyers call a "peremptory norm of general international law", that is, one which is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."[43] The status of the prohibition against torture as a peremptory norm of international law has been recognised by UK courts on a number of occasions.[44]

25. The general principles of state responsibility in international law are now conveniently set out in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts, which were approved by the UN's General Assembly on 12 December 2001.[45] They recognise that internationally wrongful conduct often results from the collaboration of more than one State rather than one State acting alone. Article 16 deals with the situation where one State provides aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter. It provides:


Aid or assistance in the commission of an internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

26. In international law, particular consequences also flow from "serious breaches" of obligations under peremptory norms of international law.[46] A breach of such an obligation is "serious" if it involves "a gross or systematic failure by the responsible State to fulfil the obligation."[47] States are under a positive obligation to co-operate to bring such serious breaches to an end,[48] and are required not to recognise as lawful a situation created by such serious breaches, nor to render aid or assistance in maintaining that situation.[49] So, for example, where a State systematically tortures terrorism suspects, other States are under a duty to co-operate to bring such a serious breach of the prohibition against torture to an end, and are required not to recognise the practice as lawful nor to give any aid or assistance to it continuing. We are concerned that these positive obligations in relation to torture, not to acquiesce in torture or to validate the results of it, are not fully appreciated by the Government, which often gives the impression that it is only under a negative obligation not to torture: see, for example, the statement by the Prime Minister in his letter of 18 June 2009 that 'neither the UN Convention Against Torture nor the European Convention on Human Rights … include a positive legal obligation to report or seek to prevent acts of torture carried out by other states abroad'.[50]

27. 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.

28. If complicity in torture is unlawful, the remaining legal question is what, exactly, does "complicity" mean?

What does "complicity" mean?

29. Although UNCAT refers expressly to "complicity or participation in torture", and imposes obligations on states to criminalise it and to investigate credible allegations of it, the Treaty does not define the terms "complicity" or "participation".

30. We took evidence on this question from Professor Philippe Sands QC, Professor of International Law at University College, London and an acknowledged expert on the application of UNCAT.[51] Professor Sands' evidence attempted to shed some light on the meaning of "complicity" in Article 4(1) UNCAT by reference to a number of different sources, including its drafting history, its interpretation by the UN Committee Against Torture (the treaty body charged with overseeing the implementation of UNCAT), and the interpretation by the International Criminal Tribunal for the Former Yugoslavia ("ICTY") of the meaning of "aiding and abetting" in Article 7(1) of the ICTY Statute.

31. We noted, however, that these sources appeared to differ slightly as to the precise ingredients of "complicity" and therefore as to the scope of that concept. According to the judicial interpretation of the concept by ICTY, in the context of a criminal trial for aiding and abetting torture, three elements must be established in order for the offence of complicity to have been committed:[52]

(1) knowledge that torture is taking place;

(2) a contribution by way of assistance, which

(3) has a substantial effect on the perpetration of the crime of torture itself.

32. The UN Committee Against Torture, on the other hand, appears to have adopted a wider definition of complicity, which includes "tacit consent" and "acquiescence", and includes constructive as well as actual knowledge that torture was taking place (i.e. it is enough if the party who is alleged to be complicit should have known that it was taking place). The UN Committee also appears less concerned with the requirement that the assistance must have had a substantial effect on the perpetration of the crime of torture itself. So for example, the Committee Against Torture has made clear that the involvement of doctors is to be treated as a form of participation, even if only for the purpose of ensuring that the victim of torture does not die or suffer physical injuries during interrogation.[53]

33. Professor Sands addressed this apparent difference of approach in his Additional Note of Evidence submitted after we had heard oral evidence.[54] Any difference of approach between the UNCAT Committee and the ICTY, he said, was to be explained by the fact that they were interpreting different texts. "Complicity or participation" in Article 4 of UNCAT has a wider meaning than "aiding and abetting" in Article 7(1) of the ICTY Statute. Complicity or participation includes "aiding and abetting", but is not limited to that narrower concept. In Professor Sands' view, "complicity" in UNCAT would encompass tacit consent that falls short of the contribution by way of assistance that ICTY required, as well as a failure to take steps to prevent abuse in circumstances in which it is known to be occurring.

34. We are grateful to Professor Sands for his assistance in helping us to understand the meaning of complicity. In our view, it is necessary to distinguish between complicity for the purposes of individual criminal responsibility and complicity for the purposes of State responsibility. We consider that a narrower meaning is likely to be adopted in the context of individual criminal responsibility, but principles of state responsibility more readily recognise positive obligations on states (as opposed to individuals) to take action to prevent torture from occurring or continuing. Complicity may therefore be given a wider meaning for the purposes of deciding whether the State is responsible for particular acts which have the effect of allowing torture to occur or continue.

35. We therefore conclude that complicity has different meanings depending on whether the context is individual criminal responsibility or State responsibility:

  • for the purposes of individual criminal responsibility for complicity in torture, "complicity" requires proof of three elements: (1) knowledge that torture is taking place, (2) a direct contribution by way of assistance that (3) has a substantial effect on the perpetration of the crime;
  • for the purposes of State responsibility for complicity in torture, however, "complicity" means simply one State giving assistance to another State in the commission of torture, or acquiescing in such torture, in the knowledge, including constructive knowledge, of the circumstances of the torture which is or has been taking place.

Would the allegations, if proved, amount to complicity?

36. As we noted above, the allegations which have been made are that complicity in torture has taken place in a variety of forms. Assuming complicity in torture to be unlawful, and complicity to mean what we have defined it to mean above, would any of those allegations, if proved, amount to complicity in torture on the part of the UK state, or criminally culpable complicity by individual agents?

37. We are in no doubt that requests to foreign agencies to arrest and detain an individual, the provision of information enabling their arrest, the provision of questions for their interrogation, the sending of interrogators to question a suspect who is being tortured and of observers to sit in on interrogations, are all forms of assistance and facilitation capable of amounting to complicity in torture by the State concerned when those things are done in the knowledge that the person concerned is being, has been or will be tortured by the State which is detaining him, or where that ought to be obvious to the State providing the assistance. Although it may be harder to prove, we are also in no doubt that in principle each of those forms of aiding and abetting torture is capable of making a sufficient contribution by way of assistance to amount to the crime of complicity in torture by individual agents where the other ingredients of the offence are made out.

38. We have found it more difficult to decide whether the passive receipt of information which has or may have been obtained under torture amounts to complicity in torture in the sense we have described above. The House of Lords in A and others v Home Secretary, whilst deciding that evidence obtained under torture is not admissible in legal proceedings, nevertheless made clear that in certain circumstances information obtained under torture can be used by the Secretary of State to take action to save life. This is the point made by the FCO in its annual report for 2008, quoted above, where the Government effectively reserves the right to consider and even act on intelligence which is possibly derived from torture where that intelligence bears on threats to life. The passive receipt of information is also not obviously a form of "assistance" or facilitation, because it seems likely that the torture will continue to take place anyway whether the information is received or not by the other State. This would not apply, however, to circumstances where the receipt of such information (that it is reasonable to suspect is produced as a result of torture) is so regular that it becomes an expectation, or where it is part of a reciprocal arrangement (regardless of whether the arrangement is formal or explicit), or where the information is received over a long period with no apparent concern being raised about its provenance.

39. In our 2006 Report on UNCAT we acknowledged that the "one-off" use of information obtained by torture might be justified in a genuine case of necessity to protect life, but pointed out that "care must be taken to ensure that the use of such information [which might have been obtained under torture], and in particular any repeated or regular use of such information, especially from the same sources, does not render the UK authorities complicit in torture by lending tacit support or agreement to the use of torture or inhuman treatment as a means of obtaining information which might be useful to the UK in preventing terrorist attacks."[55]

40. We remain of the view that whether such passive receipt is capable of amounting to complicity in torture depends on whether there is systematic reliance on such information, or whether the circumstances set out at the end of paragraph 38 above exist. As Professor Sands said in evidence, "there is a world of difference between the one-off receipt of information that comes into your mailbox and a relationship that is premised on regular, systematic, continual reliance against the background of a broader relationship between two sovereign entities."[56]

41. The question is, at what point does the systematic receipt of such information cross the line into complicity?[57] We agree with Professor Sands's view, that if the Government engaged in an arrangement with a country that was known to torture in a widespread way and turned a blind eye to what was going on, systematically receiving and/or relying on the information but not physically participating in the torture, that might well cross the line into complicity.

42. Systematic, regular receipt of information obtained under torture is in our view capable of amounting to "aid or assistance" in maintaining the situation created by other States' serious breaches of the peremptory norm prohibiting torture. As a number of witnesses to our inquiry put it, the practice creates a market for the information produced by torture.[58] As such, it encourages States which systematically torture to continue to do so. We therefore consider that, if the UK is demonstrated to have a general practice of passively receiving intelligence information which has or may have been obtained under torture, that practice is likely to be in breach of the UK's international law obligation[59] not to render aid or assistance to other States which are in serious breach of their obligation not to torture.

43. It follows from the above that, in our view, the following situations would all amount to complicity in torture, for which the State would be responsible, if the relevant facts were proved:

  • A request to a foreign intelligence service, known for its systemic use of torture, to detain and question a terrorism suspect.
  • The provision of information to such a foreign intelligence service enabling them to apprehend a terrorism suspect.
  • The provision of questions to such a foreign intelligence service to be put to a detainee who has been, is being, or is likely to be tortured.
  • The sending of interrogators to question a detainee who is known to have been tortured by those detaining and interrogating them.
  • The presence of intelligence personnel at an interview with a detainee being held in a place where he is, or might be, being tortured.
  • The systematic receipt of information known or thought likely to have been obtained from detainees subjected to torture.

44. We also draw attention to the fact that our views on what sorts of assistance are likely to constitute complicity are shared by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Professor Martin Scheinin, in his recent report to the Human Rights Council of the UN.[60]

45. The Special Rapporteur expressed his concern about the participation of foreign agents in the interrogation of people held in situations that violate international human rights standards:

The active participation through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where his rights are violated, can be reasonably understood as implicitly condoning such practices. The continuous engagement and presence of foreign officials has in some instances constituted a form of encouragement or even support. This is particularly the case if - as alleged in Pakistan - persons are held at the request and with the approval of foreign agents. … [T]he active or passive participation by States in the interrogation of persons held by another State constitutes an internationally wrongful act if the State knew or ought to have known that the person was facing a real risk of torture.

46. The Special Rapporteur was also concerned about the sending and receiving of intelligence for operational use. Taking advantage of the coercive environment by receiving intelligence would constitute a violation of human rights law:

States which know or ought to know that they are receiving intelligence from torture or other inhuman treatment … and are either creating a demand for such information or elevating its operational use to a policy, are complicit in the human rights violations in question. … The Special Rapporteur is equally concerned about the supply of information to foreign intelligence services, when there are no adequate safeguards attached to the further distribution of such information among other governmental agencies in the receiving state.

42   Soering v UK (1989) 11 EHRR 439 at paras 33-36; Cruz Varas v Sweden (1991) 14 EHRR 1 at paras 69-70; Vilvarajah v UK (1991) 14 EHRR 248 at paras 115-116. Back

43   Vienna Convention on the Law of Treaties 1969, Article 53. Back

44   See, for example, the Court of Appeal in Al Adsani v Government of Kuwait (1996) 107 ILR 536 at 540-1; and the House of Lords in R v Bow Street MetropolitanMagistrate, ex p Pinochet Ugarte (No. 3) (1999) 2 WLR 827 at 841, 881 and A and others v Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221 at para. 33. Back

45   The Articles on State Responsibility are annexed to United Nations Resolution 56/83 adopted by the General Assembly on 12 December 2001. The Articles are recognised as an authoritative statement of the principles of State responsibility in international law: see, for example, the reference to them by the House of Lords in R v Lyons [2002] UKHL 44, [2003] 1 AC 976 at para. 36. Back

46   Articles on State Responsibility, Articles 40 and 41. Back

47   Article 40(2). Back

48   Article 41(1). Back

49   Article 41(2). Back

50   p. 53. Back

51   Ev 60-79 and Qq155-196. Back

52   Prosecutor v Anto Furundzija (Case No. IT-95-17/1-T 1988). Article 7(1) of the ICTY Statute provides for individual criminal responsibility: "7(1) A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime." Back

53   CAT/C/SR.105 at para. 5. Back

54   Ev 78. Back

55   UNCAT Report, above, n.1, at para. 55. Back

56   Q162. Back

57   Q155. Back

58   See, to the same effect, the Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, Assessing Damage, Urging Action (International Commission of Jurists, 2009) at p. 85: "States have publicly claimed that they are entitled to rely on information that has been derived from the illegal practices of others; in so doing they become 'consumers' of torture and implicitly legitimise, and indeed encourage, such practices, by creating a 'market' for the resultant intelligence. In the language of criminal law, States are 'aiding and abetting' serious human rights violations by others." Back

59   Recognised by Article 41(2) of the Articles on State ResponsibilityBack

60   Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/10/3 (4 February 2009). Back

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