Martin Scheinin presents intelligence report to the Human Rights Council and announces secret detention study

The intelligence report was welcomed by most states in the Human Rights Council and received a second heavy round of coverage in the media. (Read an official copy of the report in the ‘thematic reports’ section here).

UN Special Rapporteur on the protection of human rights while countering terrorism, Prof. Martin Scheinin clarified some of his positions in the report in The Guardian:

My report presented on Tuesday to the Human Rights Council of the United Nations in Geneva does not add much to the facts that are already known about the US-led program of secret detention, extraordinary rendition and enhanced interrogation techniques in the name of combating terrorism. What the report adds to the picture is to systematise and assess that body of information from the perspective of looking at the role of intelligence agencies and their oversight bodies in the fight against terrorism. It also includes a fresh look into questions of international law in respect of the prohibition against torture and other forms of inhuman treatment.

All too often, intelligence agencies have operated as a “state within the state”, protected by a shield of secrecy and lack of proper accountability mechanisms. For governments, “plausible deniability” of human rights violations has been more important than what actually was done by their intelligence agencies. As cross-boarder cooperation has become a part of the daily routine of intelligence agencies, they have often been operating under the erroneous perception that if something happens outside the territory of one’s own state, it would not be governed by the law. And as oversight has routinely failed exactly in respect of cross-boarder cooperation, this illusion has been persistent.

My UN report calls for accountability of intelligence agencies, including their cross-boarder cooperation. It also proposes human rights training for intelligence officials, in order to transform the respect for human rights to be a part of their professional qualifications and a source of professional pride.

(…)

The black-letter rules in the UN Convention against Torture prohibit in absolute terms a state from engaging in torture “in any territory under its jurisdiction”, as well as the use as evidence in “any proceedings” of “any statement which is established to have been made as a result of torture”. Provisions like these have been utilised to create a perception that intelligence agencies could lawfully engage themselves in torture outside the national territory, use other countries as proxies for torture, or make operative use of information obtained by torture, for instance to prevent future acts of terrorism. This perception has resulted in an industry of torture and a high demand for its main product, intelligence information.

The fresh look provided by my report is the simple proposition that a view that engagement in torture outside of the above-quoted narrow passages of the torture convention would be lawful, is fundamentally flawed. This is because torture is always a violation of international law. Therefore, any form of involvement in it, anywhere in the world, is subject to the law of state responsibility which is a rigorous branch of public international law.

Active participation by a state through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interrogation of a person who is being held in places where he is tortured or subject to other inhuman treatment, must be understood as a form of condoning torture. States that know or ought to know that they are receiving intelligence from torture or other inhuman treatment, and are either creating a demand for such information or elevating its operational use to a policy, are complicit in the human rights violations in question. The same is true for states that are directly or indirectly handing over persons to countries where they are tortured. This is the crux of the matter.

UN Report and Guantanamo
In the first round of media coverage on the intelligence report the focus lied on the legality of the sending of interrogators and questions to Guantanamo Bay. Read Martin Scheinin’s interviews with The Washington Post and The New York Times.

In his speech to the Human Rights Council last Tuesday, the Special Rapporteur applauded the Obama administration for pledging to turn a page in U.S. history by closing the Guantanamo Bay prison, but said the full extent of abuse at the camp needs to be revealed. “Before a page can be turned, we have to know what’s on it in order to move forward,” according to Scheinin.

Scheinin reiterated his earlier question to be allowed into the camp to conduct private interviews with the remaining detainees. U.S. officials said the new administration looked forward to working with Scheinin and other U.N. experts but made no commitment regarding a further visit to the camp.

Dangers of the sharing of information: on data-mining, the SCO and the Arar- and Almaki case
AP covered then first the very important aspect of data mining and information sharing in general, singling out the example of the Shanghai Cooperation Organisation. Read more about it in The International Herald Tribune for instance.

After the report was out, the Canadian media picked up the case as the report singles out the Arar case in denouncing information sharing with foreign intelligence agencies without “adequate safeguards” to protect human rights. Sanctions against a suspect should not be based on such foreign intelligence unless the person in question can effectively challenge its “credibility, accuracy and reliability,” says the report.

At the same time in the Canadian House Of Commons committee, Mike Cabana, the Mountie who headed an anti-terrorist task force that investigated Arar, suggested the Americans had “breached” the RCMP’s trust in the case. Cabana indicated that when it comes to sharing information with U.S. agencies, the RCMP cannot absolutely control how it will be used. “What we have is an understanding and trust that goes back many, many years. There have been instances where that trust has been breached.” After the meeting, Cabana confirmed he was referring to the Arar file. But he declined to comment further, citing continuing civil litigation stemming from cases tied to the Arar file.

According to The Star:

The UN report essentially echoes the thrust of O’Connor’s recommendations on information sharing, saying such transfers should take place only with written caveats that limit the further flow of such material among agencies in the receiving country.
Public Safety Minister Peter Van Loan, minister responsible for the RCMP and CSIS, said while he had not read the UN report, the government had responded to the issues it raises through the O’Connor and Iacobucci inquiries.

He said the government has taken the inquiry recommendations “quite seriously.”

“And I believe those findings are by and large being applied.”

UN Report’s impact on internal UK debate on role of intelligence agencies
On Monday the advanced version of the report suddenly was brought to the attention to the BBC, which emphasized the UK’s role in the rendition, detention and torture of terror suspects, but also picked up the part of the report which deals with state secrecy in which several countries are accused of using laws designed to protect national security to “conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and – most importantly – liability”.

The report came in the middle of the Binyam Mohamed controversy in the UK and was quoted heavily in the UK press and in British Parliament. According to The Independent, “the report led to a clamour of calls for a full and independent investigation into the Government’s involvement in the detention and movement of suspects since the start of the “war on terror” eight years ago.”

Responding to the release of the UN report, Clive Stafford Smith – director of Reprieve, the legal charity that represented him – said the UN report was “rather familiar” to anyone who knew Mr Mohamed’s story.

“The government must take this international criticism to heart and, instead of merely repeating platitudes about being opposed to torture, must show that when a British agent discovers some victim in some foreign torture chamber, Britain will take action to stop the abuse.”

Lib Dem spokesman Edward Davey said: “It is shameful that we now seem to be reliant on outside organisations to uphold the rule of law in our own country.” “It is a dark day for the reputation of Britain’s secret services when a UN Special Rapporteur lumps them alongside those of Pakistan and Indonesia for co-operating with illegal activities linked to abduction and torture.”

For the Conservatives, Pauline Neville-Jones – a former head of the Joint Intelligence Committee – said the government had to answer “the serious claims made about torture and rendition”.

“Constant allegations which are not answered are damaging the good name of this country and undermining the credibility of the government’s position that it neither practises nor condones torture,” she said.

The UK responded to the report in their intervention to the Human Rights Council by saying that it abhors torture, and does not participate in, solicit, encourage or condone it. The UK government committed itself to follow up the issue with the rapporteur.

At the prime minister questions on wednesday David Cameron, leader of the Conservative Party, said that the referral of Binyam Mohamed’s case to the attorney general “didn’t go far enough”.He said it would only look at whether a crime was committed not whether “our moral authority has been maintained”. Mr Cameron said a “brief, judge-led inquiry” was needed – whatever Baroness Scotland’s findings. Brown sidestepped the call for a wider inquiry led by a judge, however, suggesting that the broader allegations should be examined by the intelligence and security committee (ISC), the Westminster body that is supposed to scrutinise the work of MI5, MI6 and GCHQ. “I believe that the ISC at this stage is the best way to proceed,” he said.

Announcement of the Secret Detention Study
As expected media coverage was enormous on this issue. From Brazil to China, from the Miami Herald to Al Jazeera, from Reuters to AP, everybody covered the story.  For the record, this study

• is not explicitly about new rendition flights; the focus is on the practice of secret detentions
• is not explicitly about finding new CIA prisons; both rapporteurs are not criminal investigators but international law experts
• is not singling out the US or explicitly scrutinizing the new US administration’s policies; it focuses on secret detention policies from a global perspective.

Please be aware that contributions to this study can be sent to both the Rapporteurs at this secure website.