Friends Don’t Let Friends Torture: Comment on Youssef v. Secretary of State for Foreign and Commonwealth Affairs

[Matthew Sands is a Legal Advisor with the Geneva based NGO, Association for the Prevention of Torture (APT) the full judgment on this case is available here.]

In late January, the UK Supreme Court published its judgment in the case of Youssef. In 2005, Mr. Youssef had been suspected of involvement in terrorist-related activity, and Egypt had requested the UN sanctions committee mandated under UN Security Council resolution 1267 to impose targeted sanctions on Youssef including an assets freeze and a travel ban. The UK Secretary of State for Foreign and Commonwealth Affairs agreed with the designation, and this blog asks whether alternative actions by the UK would have been more consistent with international law.

One issue decided by the case was whether the UK Secretary of State should step in and intervene when other States might be relying on evidence tainted by torture, in deciding whether to add Youssef’s name to the UN Sanctions list. Though the Secretary of State had not relied on tainted evidence himself, Youssef argued the decision to support the sanctions committee’s designation effectively sanctioned or consented to the use of torture-tainted information which had likely been used by other States to influence their own decisions.

In its ruling, the UK Supreme Court restated an earlier ruling that international law empowered, but did not oblige, the Secretary of State to so intervene. Ultimately, the Court ruled that the Secretary of State may simply turn a blind eye to the possible jus cogens violations of partner States in the UN.

We should emphasise that this was a possible jus cogens violation. It was not shown that the evidence on which other States relied was definitely the result of torture. The UK Supreme Court seems willing to distinguish between this and a definitive finding of illegality, which could engage a duty to intervene. In its reasoning, the Court examined the ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that placed other States under an obligation “not to recognise the illegal situation resulting from construction of the wall” and “not to render aid or assistance in maintaining the situation created by such construction” (ICJ, para.159). The Supreme Court reasoned that such rules “do not suggest or imply any duty on States to inquire into the possible reliance on such evidence by other States […] The obligations held to arise out of the International Court’s decision on the Palestinian wall are nothing in point. They followed a definitive finding of illegality.” [emphasis added] (at 29).

In accepting that duties likely flow from definitive knowledge of unlawful acts, but not from mere suspicion, the UK Supreme Court leaves open a gap that State actors will surely exploit. This is because it is understandably extremely difficult for anyone, whether a complainant or a State, to establish that information obtained overseas, often from victims who remain detained and who continue to be at risk of further torture, were tortured in order to get it.

Absent a definitive finding of illegality (and in these circumstances, it seems unlikely that such a finding would be made) the Youssef ruling implies no duty on the State to act in any way which stymies the possible jus cogens violations of others.

This conclusion seems at odds with the ICTY’s Furundžija judgment which was one of the authorities considered by the Court that recognised positive obligations of States “not only to prohibit and punish torture, but also to forestall its occurrence” (Furundžija, para.148). The ruling would also seem to be plainly inconsistent with settled jurisprudence of various international and regional bodies which require States to take effective measures to prevent torture and to ensure that evidence which cannot be shown to be untainted from the stain of torture is excluded in any proceeding.

The ruling in Youssef is therefore likely to frustrate the work of actors who assert that States can and should do more than passively respect the absolute prohibition if they are to actually stop torture in practice.

By failing to object to the designation placing his name on the sanctions list, Youssef argued that the Secretary of State did not fulfil an obligation to insist on respect for the prohibition against torture, which includes a duty not to rely on the fruits of torture. The UK Supreme Court recalled further passages from Furundžija that the prohibition of torture imposes on States “obligations owed to all the other members of the international community, each of which then has a correlative right. […] [A]nd every member […] then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued” (Furundžija, para.151).

In recognising that the UK has the right, rather than the obligation, to insist that other States reject evidence obtained by torture, the Court retained its customary deferential position to the State in the exercise of prerogative powers. A better reading might have been to accept that the positive duty to forestall a breach of the prohibition against torture required the Secretary of State to withdraw from any decision where tainted evidence was likely being considered.

Putting law to one side for a moment, as a recognised purpose of the UN, States should cooperate towards universal respect and observance of human rights through the exercise of friendly relations. It then begs the question, what would a friend do if confronted with the possibility that others relied on evidence tainted by torture?

The responsible thing to do would be to refuse to offer support for the designation of the UN sanctions committee, avoiding injury to individuals wrongly listed and to States themselves, until the committee was in a better state to make a fair decision based on untainted evidence. This would be more consistent with the role of the Secretary of State as a person constrained by a professional and a legal duty to uphold the obligations of international law, such as those described in the Convention against Torture.

In finding that the Secretary of State did not have an obligation to intervene, the UK Supreme Court gave the UK and others just enough wiggle room to permit torture and its fruits to continue to be collected and used. There is a risk that the judgment will be relied on elsewhere to show that wilful blindness to torture committed overseas is an excuse to do nothing. It is not.