100 Human Rights in Counter-Terrorism Investigations The agents of state B subsequently fly X to a third country, where he is held for four months. X’s conditions of detention while under the custody of country B are inhuman and degrading. He is subjected to beatings by armed guards and to violent and prolonged interrogations. He is also force-fed after a hunger strike, and is denied access to medical treatment. He is neither charged nor brought before a judge, and has no access to the outside world, including to representatives of his government. Four month later, agents of state B fly X to a different country to release him. Question: Are the authorities of state A complicit in the torture of X? X has been subjected to torture while in state A and while in the custody of state B. He has also been subjected to torture following his transfer to a third country. When assessing whether authorities of state A can be held responsible for complicity of torture, two situations must be evaluated: • the ill-treatment that took place at the airport, within their territory; and • the ill-treatment that occurred in a third country. Officials of state A facilitated the transfer of X into the custody of state B. They were present while X was tortured at the airport by officials of state B, and did not act to prevent it. As the ill-treatment was performed in state A with the acquiescence or connivance of its officials, authorities of state A are complicit in the torture and must be held responsible. At the time of transfer, publicly available information indicated that there were serious reasons to believe that X would risk being ill-treated by agents of state B. Therefore, authorities of state A knew or should have known that X faced such a risk.119 However, they did not take this risk into consideration when deciding to hand over X to state B. In these circumstances, the authorities of state A should be held responsible for complicity in torture. * This case study is taken from the facts in El-Masri v. The former Yugoslav Republic of Macedonia, and the analysis of the question on the findings of the ECtHR in that case.120 119 The principle of non-refoulement will be further explored in section 3.5.3 of this manual. 120 ECtHR, El-Masri v. The former Yugoslav Republic of Macedonia, Application No. 39630/09, 13 December 2012, <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001–115621>.