SHARING INFORMATION WITH STATES THAT TORTURE
Torture on this issue would be a welcome development, particularly if
it were able to articulate applicable standards in the burden of proof
and define the scope for the exclusionary rule by executive actors.
Among the principle obligations of the absolute prohibition against
torture provided in the UNCAT, elaboration of the emerging duties
not to expose a person to a real risk of torture overseas (dealing
with outgoing information) and the exclusion of information
established to have been obtained by torture (dealing with incoming
information) could therefore serve to provide further guidance to
States, executive agencies and their actors.
Principles of State Responsibility
State actors who commit violations of the UNCAT, or in the
absence of treaty ratification, violate the comparable customary
standards, commit an internationally wrongful act resulting in State
responsibility. 29
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
recognise as lawful a situation created by a serious breach and to
cooperate to bring the breach to an end (articles 40–41).
It is clear that the forms of complicity considered by the ILC Draft
Articles do not include commission by acquiescence. This should
therefore be considered as a separate heading of liability under the
lex specialis regime applicable for torture. Nevertheless, we should
also be mindful that any internationally wrongful act must also be
properly attributable to the State, which could narrow the scope for
acquiescence as a form of liability.
In relation to aiding or assisting an internationally wrongful act,
we should ask whether sharing information, putting questions or
29
Draft Articles on Responsibility of States for Internationally Wrongful Acts,
adopted by the International Law Commission at its fifty-third Session, in 2001, and
submitted to the General Assembly as a part of the Commission’s report covering
the work of that session (A/56/10).
25
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