SHARING INFORMATION WITH STATES THAT TORTURE
to the requirements described in Draft Article 41. 30 Such a conclusion
would appear consistent with the views of jurist Matt Pollard, who
asserts that “after the fact acceptance and use of information also
could forcefully be argued to constitute implicit recognition of the
situation created by torture as lawful since it treats the information
no differently than legally-obtained information.”31
Individual criminal liability
Pursuant to UNCAT article 4, commission of torture by complicity
may also lead to individual criminal responsibility. However, as noted
above, complicity is a complex form of liability and one in which
various standards apply. The standards for complicity in domestic
and international criminal law (for one example, see article 25 Rome
Statute) apply distinct standards from those applying to State
responsibility. Unlike forms of State responsibility, where courts
might establish liability based on the imputed knowledge that
shared information would lead to torture, where complicit liability
is sought against individuals, the standard of liability is rightly much
stricter due to the penal nature of the judicial sanction.
Any standards for domestic criminal liability must be understood
in light of the applicable domestic law in force. In relation to the
international criminal law standards for complicit liability of
individuals, standards appear to have been revised in light of the
successful appeal of Perišić at the International Criminal Tribunal
for the former Yugoslavia in February 2013, following his earlier
conviction for providing arms and logistical assistance to the
Bosnian Serb army, 32 and the contrary finding in the Appeal of
30
31
32
For support, see the criticism of the English case, Rangzieb Ahmed & Anor v. R
[2011] EWCA Crim 184 (2011) by Sarah Fulton. Fulton asserts that the Court
erroneously held the UK to lower expectations than those imposed by international
law and that “the passive receipt of information known or suspected to have been
obtained from torture may amount to an internationally wrongful act.” In S. Fulton,
‘Cooperating with the enemy of mankind: Can States simply turn a blind eye to
torture?’, IJHR, 16:5, 773–795, at 774.
M. Pollard, ‘Rotten Fruit: State Solicitation, acceptance, and use of information
obtained through torture by another state’, NQHR, Vol.23/3, 349–378 (2005), at
377.
ICTY, Prosecutor v. Momčilo Perišić, Appeals Chamber Judgement, 28 February
2013, IT-04-81-A.
27
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