A-HRC-13-42

A/HRC/13/42
page 22
40. A State would thus also be responsible when it was aware of the risk of torture and
ill-treatment, or ought to have been aware of the risk, inherently associated with the
establishment or operation of such a facility or a given transfer to the facility, and did not take
reasonable steps to prevent it; or when the State has received claims that someone had been
subjected to torture or other ill-treatment, or an enforced disappearance, or otherwise received
information suggesting that such acts may have taken place but failed to have the claims
impartially investigated. 40
41. A transferring State could also be internationally responsible under general rules of
attribution of State responsibility for internationally wrongful acts. Recognizing that
internationally wrongful conduct is often the result of the collaboration of more than one State,
rather than one State acting alone - particularly found to be the case in the phenomenon of secret
detention practices of the so called “global war on terror” - the general principles of State
responsibility under international law establish the unlawfulness of the complicity of States in
wrongful acts. 41 In particular, a State that aids or assists another State in the commission of an
internationally wrongful act is internationally responsible if it does so knowing the
circumstances and if the act would have been wrongful if it had been committed by the assisting
State. The real or probable conduct by another State may be decisive in assessing whether the
first State has breached its own international obligations. Article 16 of the Articles on
Responsibility of the Status for Internationally Wrongful Acts, reflecting a rule of customary
international law, 42 provides that:
A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if: (a) that State does
so with knowledge of the circumstances of the internationally wrongful act; and (b) the act
would be internationally wrongful if committed by that State.
42. Additionally, under the rules of State responsibility, where one State is in “serious breach”
of its obligations under peremptory norms of international law - as would be the case if a State
were to be torturing detainees - other States have a duty to cooperate to bring such a serious
breach of the prohibition against torture to an end, and are required not to give any aid or
assistance to its continuation.
43. Furthermore, the practice of “proxy detention” by a State in circumstances where there is a
risk of torture in the hands of the receiving State could amount to a violation of the State’s
obligation under customary international law on non-refoulement - that is, not to transfer a
person to another State where there are substantial grounds for believing that the person would
40
See footnote 1.
41 See, for example, the rules codified in articles 16, 17, 40 and 41 of the Articles on
Responsibility of States for Internationally Wrongful Acts.
42
International Court of Justice, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
judgement of 26 February 2007, para. 420.