A/HRC/25/60
51.
Similarly, Draft Article 16 on the Responsibility of States for Internationally
Wrongful Acts requires either the knowledge that the assistance is facilitating the wrongful
act, or an intention to do so. Some domestic courts have applied a high threshold for State
complicity by ruling that knowingly receiving and relying on information obtained by
torture did not constitute complicity under international customary or treaty law if there was
no direct encouragement of acts of torture.
52.
However, responsibility of a State for complicity in torture or other ill-treatment by
collecting, sharing or receiving tainted information shall be governed by a different
standard, especially because for torture and other ill-treatment there is a clear universal and
absolute prohibition of peremptory nature as well as an affirmative obligation to prevent.
State responsibility is objective, and it results form a policy or practice of acquiescing in
torture in this manner. In addition, the special rules defined by Draft Articles 40 and 41 on
the Responsibility of States for Internationally Wrongful Acts referring to a “serious
breach” of an “obligation arising under a peremptory norm of general international law”
support the argument for a different, lower standard of intent for State complicity in torture.
53.
There is State responsibility for complicity in torture when one State gives
assistance to another State in the commission of torture or other ill-treatment, or acquiesces
in such acts, in the knowledge, - including imputed knowledge -, of the real risk that torture
or ill-treatment will take place or has taken place and aids and assists the torturing State in
maintaining impunity for the acts of torture or ill-treatment. A State would thus be
responsible when it was aware of the risk that the information was obtained by torture or
other ill-treatment, or ought to have been aware of the risk and did not take reasonable steps
to prevent it.49 Moreover, the Special Rapporteur finds that the assistance provided by
States does not have to have a substantial effect on the perpetration of the crime of torture
itself.
Systematic torture
54.
Collecting, sharing or receiving information from a country that is known or ought
to be known to torture in a widespread or systematic way, is turning a blind eye to what
goes on and is tantamount to complicity in torture as it tacitly acknowledges the illegal
situation and fails to prevent and discourage the use of torture. Systematic or widespread
violations encompass torture as both a State policy and as a practice by public authorities
over which a Government has no effective control. Thus, if a State is known to
systematically torture detainees or specific categories of detainees, no State may actively
collect, share or recognize information it receives from the agency as “lawfully obtained”,
nor may it “passively” accept such information. In addition, collecting, sharing or receiving
information from a State known or ought to be known to use torture on a wide or systematic
way would also trigger State responsibility under Draft Article 41 on the Responsibility of
States for Internationally Wrongful Acts. International Law Commission commentaries
specify that the non-recognition obligation contained in Draft Article 41, paragraph 2 also
prohibits acts which would imply such recognition.
55.
Therefore, the Special Rapporteur finds the receiving States are responsible because
their policy and practice serve to maintain the situation of illegality, which constitutes a
serious breach of the peremptory norm prohibiting torture and other ill-treatment and is
irreconcilable with the obligation erga omnes of States to cooperate in the eradication of
torture.50 Even if ultimately not used, and therefore not under scrutiny, the receipt of
49
50
14
A/HRC/10/3, para. 55; A/67/396, para. 48; A/HRC/13/42, para. 39-40; see also See M. Pollard, op.
cit., at 356
S. Fulton, op. cit., at 777; A/HRC/10/3, para. 55
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