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.
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