2018年-查塔姆研究所_Intelligence_Cooperation_and_Torture_8页_133kb

报告摘要

International Law Discussion Group Meeting Summary

Core Content

This meeting summary discusses the legal and ethical implications of intelligence cooperation between Western European governments (UK, France, and Germany) and countries known to use torture, particularly in the context of the 'War on Terror'. The discussion followed the publication of a Human Rights Watch report and coincided with an announcement by the UK Government to establish an inquiry into its role in torture and rendition since 2001.

Main Speakers

Tom Porteous: Director, London Office, Human Rights Watch
Nigel Inkster: Director, Transnational Threats and Political Risk, International Institute for Strategic Studies
Chair: Dr Louise Arimatsu, Associate Fellow, Chatham House and Visiting Lecturer, University College London

Key Issues and Views

The Absolute Prohibition of Torture

International law, including treaty law and customary law, prohibits torture in all circumstances. This includes:

Negative obligations: Prohibition of torture, complicity in torture, use of torture evidence in legal proceedings, and transfer of individuals to countries where they face a risk of torture.
Positive obligations: Investigation and prosecution of torture, proactive prevention, and efforts to eradicate torture globally.

UK Ambivalence

The UK government has been criticized for its inconsistent approach, including:

Seeking to use torture evidence in legal proceedings.
Devising diplomatic assurances to allow the deportation of suspects to countries where they risk torture.
Attempting to overturn European human rights protections against such deportations.
Not condemning US extraordinary rendition programs and admitting past involvement in transferring suspects to the US for rendition.

'No Questions Asked' Policy

The UK, France, and Germany have adopted a policy of not questioning the source or methods of intelligence obtained from foreign states, which is seen as:

A failure of transparency and clarity in guidelines for intelligence officers.
A potential signal to torture-practicing states that such practices are acceptable.
A breach of EU and international law.

Practical Considerations in Intelligence Cooperation

Participants acknowledged the complexities of intelligence cooperation, including:

Confidentiality: Intelligence services protect their sources and methods.
Control Principle: The originating agency controls the use of intelligence.
Operational Realities: The volume and nature of intelligence make it impractical to trace its origin.
Contextual Analysis: Investigations rely on a mix of traditional intelligence methods and analysis, not solely on information from detainees.

Ticking Bomb Hypothetical

A hypothetical scenario involving imminent civilian threats was raised, suggesting that intelligence obtained through torture could be used if necessary. However, it was emphasized that this should not be used to justify torture itself and should be followed by efforts to prevent its use.

Criticisms of Current Policy

Jurisprudential Ambiguity: In the UK, the burden of proof on torture lies with the defendant, not the prosecutor.
Weak Legislative Oversight: Oversight mechanisms, such as the Intelligence and Security Committee (ISC), lack transparency and independence.

Conclusion and Recommendations

The meeting concluded with the following recommendations:

Public Repudiation: Governments should publicly reject the use of foreign torture information.
Clear Guidelines: Intelligence and law enforcement agencies must have clear policies for handling intelligence from torture-prone states.
Prosecution Burden: The burden of proof in judicial proceedings should shift to the prosecutor to demonstrate that evidence was not obtained through torture.
Improved Parliamentary Oversight: There should be stronger parliamentary oversight of intelligence cooperation policies with foreign agencies.

Counter-Arguments

Some participants argued that:

Intelligence cooperation should be guided by statecraft and national interests, not international law.
Engagement with foreign intelligence services, including capacity-building, is more effective in promoting human rights than outright refusal.
Human rights agencies may not be as influential as other intelligence services in shaping policy.