Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained through Torture by Another State

Abstract

The author argues that a State violates international law when it transmits questions for use in the interrogation of an individual by another State, or informally uses for its own national security purposes information received through interrogations by another State, where it knows or should know that there is a real risk that the interrogation will or did involve torture. The sources of law relied upon include: the comprehensive, absolute, and non-derogable prohibition of torture under treaty and customary international law; rules ascribing individual criminal responsibility for complicity or participation in acts of torture; and the secondary rules of State responsibility (using the framework of the Articles adopted by the International Law Commission). The author specifically considers and rejects the argument that territorial and jurisdictional limits on the human rights responsibilities of States preclude responsibility for participation in torture ‘out-sourced’ in this manner to another State.