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5. State responsibility through secret detention by proxy
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5. State responsibility through secret detention by proxy




  1. Secret detention, involving the denial or concealment of a person’s detention, whereabouts or fate has the inherent consequence of placing the person outside the protection of the law. The practice of “proxy detention”, where persons are transferred from one State to another outside the realm of any international or national legal procedure (“rendition” or “extraordinary rendition”) for the specific purpose of secretly detaining them, or to exclude the possibility of review by the domestic courts of the State having custody of the detainee, or otherwise in violation of the well-entrenched principle of non-refoulement, entails exactly the same consequence. The practice of “proxy detention” involves the responsibility of both the State that is detaining the victim and the State on whose behalf or at whose behest the detention takes place.



  1. According to article 2, clause 1 of the International Covenant on Civil and Political Rights, each State party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Human Rights Committee clarified in its general comment No. 31 that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party.”33 Similarly, the International Court of Justice, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, recognized that the jurisdiction of States is primarily territorial, but concluded that the Covenant extends to “acts done by a State in the exercise of its jurisdiction outside of its own territory”.34 An excessively literal reading of article 2, paragraph 1 of the Covenant would defeat the very purpose of the Covenant.35 As far as the Convention against Torture is concerned, article 2, paragraph 1 and article16, paragraph 1, refer to each State party’s obligation to prevent acts of torture “in any territory under its jurisdiction”.



  1. The removal of a person to a State for the purpose of holding that person in secret detention, or the exclusion of the possibility of review by domestic courts of the sending State, can never be considered compatible with the obligation laid down in article 2, paragraph 2 of the International Covenant on Civil and Political Rights. The Working Group on Arbitrary Detention has dismissed this practice of “reverse diplomatic assurances”, in which the sending Government seeks assurances that the person handed over will be deprived of liberty, even though there are no criminal charges against him and no other recognizable legal basis for detention, as being at variance with international law.36 In its opinion No. 11/2007,37 the Working Group on Arbitrary Detention, concurring with the view of the Human Rights Committee expressed in its general comment No. 31, declared the Government of Afghanistan responsible for the arbitrary detention of an individual who was being detained at Baghram Air Base, under the control of the United States of America, but on Afghan soil with the knowledge of Afghan authorities.



  1. Similarly, the Convention against Torture and other cruel, inhuman or degrading treatment or punishment not only expressly bans torture, but in its article 4, paragraph 1, it also implicitly prohibits complicity in acts of torture as it requires each State party to ensure that all acts of torture, including those acts by any person that constitute complicity or participation in torture, are criminal offences under its criminal law. This approach has been supported by the Committee against Torture in its jurisprudence.38 In particular, the Committee considered complicity to include acts that amount to instigation, incitement, superior order and instruction, consent, acquiescence and concealment.39



  1. A State would thus also be responsible when it was aware of the risk of torture and ill-treatment, or ought to have been aware of the risk, inherently associated with the establishment or operation of such a facility or a given transfer to the facility, and did not take reasonable steps to prevent it; or when the State received claims that someone had been subjected to torture or other ill-treatment, or an enforced disappearance, or otherwise received information suggesting that such acts may have taken place but failed to have the claims impartially investigated.40



  1. A transferring State could also be internationally responsible under general rules of attribution of State responsibility for internationally wrongful acts. Recognizing that internationally wrongful conduct is often the results of the collaboration of more than one State, rather than one State acting alone - particularly found to be the case in the phenomenon of secret detention practices of the so called “global war on terror” - the general principles of State responsibility under international law establish the unlawfulness of the complicity of States in wrongful acts.41 In particular, a State that aids or assists another State in the commission of an internationally wrongful act is internationally responsible if it does so knowing the circumstances and if the wrongful act would have been wrongful if it had been committed by the assisting State. The real or probable conduct by another State may be decisive in assessing whether the first State has breached its own international obligations. Article 16 of the Articles on Responsibility of the Status for Internationally Wrongful Acts, reflecting a rule of customary international law,42 provides that:


A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”

  1. Additionally, under the rules of State responsibility, where one State is in “serious breach” of its obligations under peremptory norms of international law – as would be the case if a State were to be torturing detainees –other States have a duty to cooperate to bring such a serious breach of the prohibition against torture to an end, and are required not to give any aid or assistance to its continuation.



  1. Furthermore, the practice of “proxy detention” by a State in circumstances where there is a risk of torture in the hands of the receiving State could amount to a violation of the State’s obligation under customary international law on non-refoulement – that is, not to transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.43 The Declaration on the Protection of All Persons from Enforced Disappearance and the International Convention for the Protection of All Persons from Enforced Disappearance state that the principle of non-refoulement applies to the risk of enforced disappearances. Article 17, paragraph 1, of the International Convention provides that: “no State party shall expel, return (‘refouler’), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.” The Working Group on Arbitrary Detention has argued that the risk of arbitrary detention in the country of destination, which includes secret detention, should prohibit the transfer of a person into the jurisdiction of the receiving State as well.44 Diplomatic assurances from the receiving State for the purpose of overcoming the obstacle of the non-refoulement principle do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement.45