Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained through Torture by Another State

Publication Date01 September 2005
AuthorMatt Pollard
DOI10.1177/016934410502300303
SubjectPart A: Article
ROTTEN FRUIT: STATE SOLICITATION, ACCEPTANCE,
AND USE OF INFORMATION OBTAINED THROUGH
TORTURE BY ANOTHER STATE
MATT POLLARD*
Abstract
The author argues that a State violates international law when it transmits questions for use in
the interrogation of an individual by another State, or informally uses for its own national
security purposes information received through interrogations by another State, where it knows
or should know that there is a real risk that the interrogation will or did involve torture. The
sources of law relied upon include: the comprehensive, absolute, and non-derogable prohibition
of torture under treaty and customary international law; rules ascribing individual criminal
responsibility for complicity or participation in acts of torture; and the secondary rules of State
responsibility (using the framework of the Articles adopted by the International Law
Commission). The author specifically considers and rejects the argument that territorial and
jurisdictional limits on the human rights responsibilities of States preclude responsibility for
participation in torture ‘out-sourced’ in this manner to another State.
1. INTRODUCTION
On 26 December 2002, in a Washington Post article concerning detention and
interrogation of terrorism suspects,
1
unidentified US national security officials were
reported to have said that:
.The CIA was transferring suspects, together with a list of questions the CIA
wanted answered, to foreign intelligence services.
.The US would ‘feed questions’ to, and receive summaries from, interrogators of
persons already in a foreign State’s custody.
.These foreign States had a documented history of practising torture.
.A former CIA inspector general explained: ‘we don’t do torture, and we can’t
countenance torture in terms of we can’t know of it’, but if a country offered
information ‘we can use the fruits of it’.
2
.The CIA uses a narrow definition of ‘knowledge’ that a suspect had been
tortured: ‘If we’re not there in the room, who is to say?’
3
Netherlands Quarterly of Human Rights, Vol. 23/3, 349-378, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 349
* Matt Pollard, LL.M. (Essex), gratefully acknowledges scholarships from the Law Foundation of
British Columbia and the Province of British Columbia, which helped make possible the
preparation of initial drafts of this article during studies at the University of Essex, United
Kingdom.
1
Priest, D. and Gellman, B., ‘U.S. Decries Abuse but Defends Interrogations’, Washington Post,
26 December 2002, p. A01.
2
Idem.
3
Idem.
350
In the popular media, concern about these issues was ultimately overshadowed by
the controversy following the 2004 revelation that United States personnel had
themselves directly tortured and otherwise mistreated detainees in field military
operations in Iraq and Afghanistan.
4
Information obtained through torture may also have been secretly used by the
British security service, government officials, and statutory tribunals including its use
as secret evidence in detention review and other hearings.
5
Such, at least, is the
allegation in a case before the British courts, which have thus far held that national
laws do not prohibit such use, at least where British agents did not themselves carry
out the torture.
6
The transfer of suspected terrorists to States known to engage in torture, and the
use of information in formal administrative or judicial proceedings, have been the
subject of much academic and diplomatic attention, and are widely considered to
engage well-recognised prohibitions under international law.
7
In this article I will
make the admittedly more challenging argument that a State violates international
law when it:
a) transmits questions to be used in the interrogation of an individual by the
security forces of another State, for the purpose of receiving the answers, where
it knows or should know that there is a real risk that the answers will be obtained
by torturing an individual, or
b) accepts and uses, for national security purposes outside of formal judicial or
administrative proceedings, information received from another State, where it
knows or should know that there is a real risk that the information was obtained
by torturing an individual.
Matt Pollard
4
See Greenberg, Karen J. and Dratel, Joshua L. (eds), The Torture Papers: The Road to Abu Ghraib,
Cambridge University Press, Cambridge, 2005.
5
Gillan, A., ‘Torture Testimony ‘‘acceptable’’’, The Guardian, 22 July 2003. See also discussion at the
Committee against Torture, and its concluding observations, on the Fourth Periodic Report of the
United Kingdom, 10 December 2004, UN Doc. CAT/C/CR/33/3.
6
A and Others vs Secretary of State for the Home Department, [2004] EWCA Civ 1123 (English Court of
Appeals). A subsequent judgement of the House of Lords ([2004] UKHL 56) concerning the same
detention hearing scheme did not address the issue, declaring the overall scheme of indefinite
detention of non-nationals to be inconsistent with the European Convention on Human Rights on
other grounds. The replacement scheme of ‘control orders’ subsequently put in place, like the
scheme examined in A and others, is silent as to admissibility of information obtained by torture. A
further hearing to address the specific issue of use of evidence potentially obtained by torture by
other States, as originally decided by the Court of Appeal, is scheduled to be heard by the House of
Lords in October 2005.
7
See, e.g.,UN Convention against Torture, Articles 3 (non-refoulement) and 15 (admissibility of
evidence); UN General Assembly Resolution on Torture, UN Doc. A/RES/59/182, paras 6 and 8;
UN Commission on Human Rights, Resolution on Torture and other cruel, inhuman or degrading
treatment or punishment, UN Doc. E/CN.4/RES/2005/39, paras 4 and 5; Resolution on
Protection of human rights and fundamental freedoms while countering terrorism, UN Doc. E/
CN.4/RES/2005/80, Preamble.

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