A new report is currently making headlines in Europe concerning European intelligence services using information obtained through torture to combat terrorism.
Yesterday, Human Rights Watch published a report that criticized British, French and German intelligence agencies for using information obtained by their counterparts in countries that practice torture, such as Algeria, Jordan, or the United Arab Emirates. I only have had time to skim through the report, available here, but it looks like an interesting report recalling current international law on torture, and raising the legal, practical and moral questions of governments using intelligence obtained through torture in the fight against terrorism, with interesting bits on the “ticking-bomb scenario” and the “no-questions asked” approach adopted by European intelligence agencies.
This raises several issues for the European countries singled out. First of all, politically speaking, the United States’ have been heavily criticized for its policy of extraordinary renditions and transfers of prisoners towards countries that practice torture in order to obtain information, not to mention whatever happens in Guantanamo Bay and Bagram Air Base. That European countries, so far having been spared these kind of accusations, are now found to be also guilty of profiting from torture-obtained intelligence is more than just embarrassing.
From a legal point of view, it raises the issue of the respect of these countries of their obligations under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CoT). Article 15 of that Convention in particular states that:
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The HRW Report does recognize that the CoT is silent on the use of torture evidence as the basis for decisions by the executive branch and its agencies (p. 12). But its argues – in my opinion, quite accurately – that the narrow interpretation of article 15 that allows for intelligence services and law enforcement authorities to “use foreign torture information for operational purposes (…) misrepresents the letter and the spirit of the Convention Against Torture,” pointing out that it goes against the ergo omnes obligations concerning the eradication of torture which is the main purpose of the CoT.
And to keep things interesting, recently elected British Prime Minister David Cameron has just announced that he agreed to the creation of an inquiry on the alleged complicity of British agents in the torture of suspected terrorists.
Torture and the fight against terrorism is a delicate subject. How far are our societies ready to go to guarantee our security? Or, reversely, how much are we ready to sacrifice in the name of our principles? There is no easy answer, but it looks as if the HRW Report is an interesting and well-researched contribution to the debate concerning the methods used in combating international terrorism. The result of the British inquiry will be interesting to follow, and one could hope that France and Germany will both follow suit.
Update: here is Jurist.org’s entry on the HRW Report and the UK’s inquiry, which as always sums up very well the story.