APT report: Beware Gift of Poison Fruit, Information sharing with States that torture
Excerpt, editing by Carolyn Bennett
In the post-2001 years, there has
been a well-documented expansion of cooperation between intelligence and
security agencies. In the endless ‘war on terror’, agencies have
justified a huge amount of information sharing and use of information in
circumstances where individuals likely have obtained the information by torture.
Agencies have shared
information with international partners in circumstances that have led to torture of
people held overseas.
The Association for the Prevention of torture has released
its latest report on the subject. Based in Geneva, Switzerland, the APT is a
leading organization in the field of preventing torture and other ill treatment
and offers its expertise and advice to international organizations,
governments, human rights institutions and other actors. The nonprofit has
played a key role in establishing international and regional standards and
mechanisms to prevent torture, among them the Optional Protocol to the United Nations
Convention against Torture. These are edited excerpts from its “Beware the Gift
of Poison Fruit: Sharing information with States that torture” report.
“‘Information’ or ‘intelligence’ is used by a variety of executive
actors for a number of purposes. It may be used to establish a basis for
criminal investigation, justify administrative detention, influence immigration
decisions or sanctions, drive government policy, or direct military or
intelligence actions overseas. The variety of uses for information or
intelligence leads to some serious questions about the reliability of the
underlying information, and the manner in which it is collected, shared and
used.
“Over the last ten years in the aggressive war against
terrorism, intelligence and security agencies have been under extreme pressure to
obtain answers and information. As a result, if they received the information
they needed from foreign agencies, there has been a tendency not
to raise concerns or delve too deeply into the source or its reliability.
Inevitably, such practices led to some of the tragic abuses that have been
widely reported. …”
Rights of Human Beings as Human Being Breached
“The European Center for Constitutional and Human Rights
(ECCHR) has documented several cases of torture in Europe as part of their ’10
years after 9/11 publication series’.
“They note that Murat Kurnaz, Mohammed Zammer, and Khaled El
Masri were all tortured by or at the behest of American (U.S.) agents and that German
agencies obtained information during interviews by the German Federal
Intelligence Service, the BND, with each of the men; in each case, information was
collected, received and shared between the BND and American agents. A
parliamentary commission of inquiry established to investigate Germany’s secret
cooperation with the USA and other states in countering international terrorism
in 2006 was unable to conclude to what extent information passed by the German
BND was responsible for the treatment of the men.” The inquiry “did (however) consider that
the intelligence shared was not checked for reliability prior to its transfer,
and that information shared with the United States led directly to the arrest
of at least one of the men, Khaled El Masri.
‘El Masri’s case is one of the best
documented extraordinary renditions by the CIA to date. In 2012, the European
Court of Human Rights determined El Masri had been tortured and that Macedonia was
responsible both for abusing him while in their custody and for the abuse he
received in Afghanistan at the hands of the Americans.’
Despite abuses and errors, “The war on terror continues to
serve as a justification for the indiscriminate exchange of large amounts of
highly sensitive information; and those providing the information have no
overview of who it is that receives the information and to what uses or misuses
this information is put.”
Right of Human beings to unbiased rule of law Breached
“Torture,” the APT report continues, “is an abhorrent
practice and absolutely prohibited.” International treaties, customary
international law, and constitutional guarantees of almost every State prohibit
torture. “Yet despite its blatant illegality, torture continues to be practiced
in States around the world.
“In the years since the terrorist attacks in 2001,
intelligence cooperation between States has expanded significantly. Police,
security and intelligence agencies ( viz., executive agencies) in several
States have demonstrated a willingness to rely on information obtained through
torture, and have shared information that later was used to abuse detainees
overseas. Such cooperation, particularly among States that systematically use
torture, leaves executive agencies and their agents vulnerable to allegations
of complicity. In some cases, executive agencies have appeared actively to
participate in torture, in ways that extend beyond complicity into direct
perpetration of the abuse. …”
Crime disguised as crime stopper
Torture-tainted information perpetuating torture
“Using the fruits of torture encourages it, and gives
torture an ill-deserved credibility. Accepting, using, and placing value on
such intelligence ‘legitimizes’ the torture used for its collection. It is
hypocritical of States to condemn torture committed by others while accepting
its products.…By encouraging torture, agencies create a market where States
that torture are rewarded for their trade.
“Torture-tainted information is inherently unreliable. Pain
and suffering caused to victims destroys their will, causing them to say
anything to end the pain.… Using torture-tainted information which has a high
risk of unreliability is contrary to the interests of police, security and
intelligence agencies, who require accurate information in order to operate
effectively.”
Tainted Intel
Counterproductive conspiracy in crime
Waste: “Torture
necessarily generates false positives, as interrogators only accept information
they want to hear. Based on unreliable information obtained by torture,
investigations are diverted and more information is sought, again repeating the
cycle of torture. Such tactics wastes time and diverts attention from proper
investigations and real threats.”
Immorality/criminality: Torture, use of torture-tainted information and perpetuation of torture are immoral
and illegal acts. “In all stages of the intelligence cycle, ethical questions must
be carefully balanced against the national requirements of intelligence, security,
and police services.… Torture is an international crime, punishable in any
State; and where action by an executive agent constitutes torture, either by
direct perpetration or some form of complicity, every State has a duty to prosecute
the crime.”
Prohibition absolute: Principles enforced, Breaches prosecuted
“The absolute prohibition against torture ‘entails a
continuum of obligations – not to torture, not to acquiesce in torture, and not
to validate the results of torture and other cruel, inhuman or degrading treatment’.…”
“State actors who commit violations of the UN Convention
against Torture, or in the absence of treaty ratification, violate the
comparable customary standards, commit an internationally wrongful act
resulting in State responsibility. As well as direct commission of
internationally wrongful acts, the Draft Articles on the Responsibility of States for Internationally Wrongful Acts
adopted by the International Law Commission (ILC) provide for forms of
commission by complicity.
The Draft Articles, which were
intended to codify existing customary rules, additionally require that no
State should provide aid or assistance to an internationally wrongful act
(articles 16–18) and should not recognize as lawful a situation created by a
serious breach and to cooperate to bring the breach to an end (articles 40–41).
In supplementing the absolute
prohibition provided in the Universal Declaration on Human Rights, various
treaties, and in customary international law, articles 1 and 4 of the UNCAT (the
UN Convention against Torture) provide that a breach of the obligation is
possible both by direct participation and complicity.
APT’s report concludes
“Where there are serious breaches, gross or systematic
violations of peremptory norms of international law, such as the prohibition against
torture, the special regime of rules described in Draft Article 41 comes into
effect. Breaches of such rules immediately attach additional consequences, not
only for the responsible State, but also for all other States.
“All States must
cooperate to end the breach and not recognize it as lawful, nor render aid or
assistance to maintain the situation.”
Sources and notes
“Beware The Gift Of Poison Fruit: Sharing information with
States that torture” Report, http://www.apt.ch/content/files_res/beware-the-gift-of-poison-fruit-en.pdf
The report author and publisher the Association for the
Prevention of Torture (APT) holds to a vision of a world free from torture, a
world where respect of all people’s rights and dignity is the norm.
Founded in 1977 by Swiss banker and lawyer Jean-Jacques
Gautier, the APT is Geneva-based independent non-governmental organization that
works throughout the world in preventing torture and other ill-treatment. The Association
for the Prevention of Torture (APT) is a leading organization in the field of preventing
torture and other ill treatment and offers its expertise and advice to international
organizations, governments, human rights institutions and other actors. The APT
has played a key role in establishing international and regional standards and
mechanisms to prevent torture, among them the Optional Protocol to the United Nations
Convention against Torture. Report Copyright © 2012, Association for the
Prevention of Torture (APT). All rights reserved. Materials contained in this
publication may be freely quoted or reprinted, provided credit is given to the
source. Requests for permission to reproduce or translate the publication
should be addressed to the APT. ISBN 978-2-940337-65-1
Also
“Experts consider the use of torture-tainted information,” November
21, 2013, http://www.apt.ch/en/news_on_prevention/experts-consider-the-use-of-torture-tainted-information/#.Uv3g9V7zTyA
On November 4, the APT hosted an
experts meeting with the Special Rapporteur on torture Juan Mendez and other
distinguished experts from a variety of disciplines. They considered legal
standards and practical challenges in the use of torture-tainted information; a
potential gap in the absolute prohibition on torture – how executive agencies
collect, use and share information obtained by torture; and whether further
guidance would be appropriate.
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