12 Feb The UK Supreme Court in R v Reeves Taylor: A Missed Opportunity to Bridge State and Individual Responsibility
[Victoria Priori is a PhD student in International Law at the Graduate Institute of Geneva.]
The case R v Reeves Taylor before the UK Supreme Court brought to the forefront the issue of whether the infliction of serious mental or physical suffering by members of non-state armed groups amounts to torture, as defined in section 134 of the UK Criminal Justice Act (CJA) implementing the definition of the UN Torture Convention. In the case at stake, all the offences in question were connected to the Liberian civil war of the 1990s. They were allegedly committed by Agnes Reeves Taylor, wife of Charles Taylor, who together with her husband, was part of the National Patriotic Front of Liberia (NPFL) – a non-state armed group fighting the at the time President Doe. Importantly, the NPFL ultimately succeeded, deposed the President and sought power of the country. The non-state armed group became the new government of Liberia.
Like the definition of the UN Torture Convention, the definition of torture in section 134 of the CJA requires that the infliction of serious mental or physical suffering is committed by or with the instigation, consent or acquiescence of a ‘public official or person acting in an official capacity’. As Agnes Reeves Taylor was a member of the NPFL, and therefore she was not a ‘public official’, the crucial point of law brought before the UK Supreme Court concerned the interpretation of the expression ‘person acting in an official capacity’. Including in this formula the members of non-state armed groups was key to sustain charges of torture against her.
The conclusion reached by the UK Supreme Court was in the affirmative, but only limited to members of non-state armed groups exercising de facto governmental control over a territory. In the Court’s opinion, enjoying de facto governmental control reached well beyond the notion of military control, including the establishment of an administrative apparatus, prisons and the administration of justice, just to name a few (para 78 of UK Supreme Court R v Reeves Taylor 13 November 2019). The Court thus set an extremely demanding threshold for applying the terms ‘persons acting in an official capacity’ to members of non-state armed groups.
The interpretation propounded by the UK Supreme Court allows the application of the definition of the crime of torture in UK legislation to abhorrent acts of violence inflicted by or with the involvement of members of non-state armed groups such as the Islamic State (ISIS). However, the applicability of the definition of torture to acts of violence inflicted by or with the involvement of members of non-state armed groups non displaying de facto governmental control would be precluded. In fact, in light of the demanding threshold proposed by the UK Supreme Court, the charges for commission and conspiracy to commit torture against Agnes Reeves Taylor were dismissed. This is because the UK Central Criminal Court found “a lack of evidence that the Taylor regime had governmental control over the areas where Ms. Taylor’s alleged crimes happened” (see Napley 2019).
Arguably, in the case at hand a possible solution could have been relying upon the fact that the NPFL actually became the government of Liberia and making reference to ILC Articles on State Responsibility. Article 10 of the ILC Articles provides that once the insurrectional group becomes the new official government of the country, the actions of this group shall be considered the actions of the state under international law. Applied to the NPFL, this means that since it became the new official government of the country, its actions are considered as the actions of Liberia from an international law perspective. Consequently, by attributing the actions of the NPFL to the state of Liberia, NPFL affiliates could have been considered as ‘public officials’ or ‘persons acting an official capacity’ according to the definition of torture under the UN Convention. Notwithstanding the ILC’ interpretation according to which this provision should not apply to cases of power-sharing and reconciliation agreements, many authors have advocated that in cases where rebels resort to force and then organize democratic elections, as it happened in Liberia, Article 10 would still be applicable (see D’Aspremont, 2009).
Admittedly, the regime of state and individual responsibility should be kept as distinct at the theoretical level. There may be however instances where the two intersect and overlap (see Bianchi 2009). The UN Convention against Torture is one of these instances, since it was drafted to deal with the individual criminal responsibility of public officials or individuals acting on behalf or with the consent or acquiescence of the state (see Evans 2002).
Nonetheless, connecting the regimes of international state and individual criminal responsibility through the application of Article 10 as a rule of attribution is not without issues. Notably, one could argue that by criminalising the actions of the NPFL only in light of a future uncertain event (i.e. becoming the new government), the principle of legality is inevitably violated. Members of non-state armed groups could claim that before the rebels actually became the new government, they lacked sufficient knowledge about their conducts being proscribed internationally under the Torture Convention and customary international law.
All these considerations can be dismissed by relying on the notion of practices that are mala in se (see Wolfe 1981). By claiming that torturous acts are among these practices considered as proscribed irrespective of detailed statutory provisions, the principle of legality vis-à-vis Reeves Taylor would have been respected. Torturous practices, in fact, by being so morally repugnant, can be considered inherently wrong, irrespective of whether they have been codified in international treaties or conventions. For this precise reason, one could claim that despite the members of the group did not enter specific international law instruments prohibiting these conducts, while committing them they were aware of the moral repugnance and the wrongness of their acts. In this manner, any consideration regarding the degree of knowledge expected from the members of the group and the principle of legality could be surpassed.
In my view, the UK Supreme Court stretched the boundaries of the discrete crime of torture by setting highly demanding criteria to which very few non-state armed groups can measure up to, leaving abuses by these actors largely unpunished. By setting an extremely demanding threshold, the Court prevented the application of the UN Torture Convention to most non-state armed groups, as for instance successful insurrectional movements since they simply do not reach the degree of control enjoyed by groups like the ISIS at the time of the infliction of the torturous practices.
Given the purpose of the UN Convention against Torture, the Court missed an opportunity to bridge the notions of state and individual responsibility. In particular, Article 10 of the ILC Articles on State Responsibility, by attributing the conducts of successful insurrectional movements to the state could have provided for an alternative interpretation that would have likely ensured the examination of the case of Agnes Reeve Taylor in the merits.