Privatised Torture: Reflections on the Implications for Human Rights Law of the Emergent Phenomenon of Out-Sourced Torture

Abstract

This paper, delivered as part of the Scrymgeour Lecture series of Dundee Law School, addresses the phenomenon of the use of private entities (airline companies and air traffic logistics companies) in the transportation of suspected terrorists for interrogation and torture (‘extraordinary rendition’). In addressing this phenomenon from the perspective of international human rights law, the paper makes both normative and practical arguments. Normatively it is claimed that the use of private entities for the purposes of concealment of activity and in the attempt to minimise liability in the event of suit reveal a position termed ‘ontological acceptance: intentional breach’ by the United States towards the absolute prohibition of torture in international law. It is argued that the normative core of the prohibition is sound, but that the gap between norm and enforcement is exacerbated by the use of private entities. The final part of the paper argues for an approach to enforcement that addresses both the public and the private through law and regulatory mechanisms.