By Tobias Thienel
The United States policies with regard to the trials at Guantanamo Bay, and the war on terror more generally, have taken another hit today, perhaps from an unexpected quarter. The English High Court (Thomas LJ and Lloyd Jones J) has decided in R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs  EWHC 2048 (Admin) that the British Foreign Secretary is under a general obligation to release to the claimant, a Guantanamo inmate, such information as the Foreign Office or the Secret Intelligence Service (a/k/a MI6) may hold about the incommunicado detention and ill-treatment (or rather, torture) of the claimant at the hands of US agents. The claimant, Binyam Mohamed, will use such material to challenge the admissibility of evidence to be adduced against him at trial before the Military Commission, and before that in seeking to persuade the Convening Authority of the Military Commissions from bringing any charges against him in the first place.
In so doing, the High Court not only made a few less than flattering comments about the US authorities running the proceedings at Guantanamo Bay, but also had a few interesting things to say about some rather hot issues of international law, on which the claimant had relied as establishing his right to see the British information about his apparent ordeal.
However, the decision of the Court did not actually rest on international law. Even so, I feel I should explain the reasoning of the judgment, not least to be able to mention (in context) the sharply critical comments the judges saw fit to pass on some actions of the US.
The claimant’s right derived, instead, from ‘common or garden’ rules of the English common law, namely from the rule in Norwich Pharmacal v Customs and Excise Commissioners  AC 133. That case, thankfully explained in the High Court’s judgment, held as follows:
‘If through no fault of his own a person gets mixed up in in the tortious act of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. […] [J]ustice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.’ (Lord Reid at p 175 of Norwich Pharmacal, quoted at para 63 of the High Court judgment)
Norwich Pharmacal relief, taking the form of a judgment ordering the respondent to provide full information of the wrongful act to which he/she/it has contributed, therefore requires the following five questions to be answered in the affirmative:
1. Is there an arguable case that there was some wrongdoing?
2. Was the respondent, however innocently, involved in the arguable wrongdoing?
3. Was the information sought necessary to the claimant?
4. Was the information sought within the scope of the available relief?
5. Should the Court exercise its discretion in favour of granting relief?
(High Court judgment, para 64)
In the present context, clearly question No. 1 would have been the most interesting to see the High Court pursue. The Court would have had to say whether there was an arguable case that the claimant had been held incommunicado and subjected to torture and cruel and inhuman treatment. The United States may well have taken a particular dislike to any such finding; others would have practically rejoiced. As it is, counsel for the Foreign Secretary conceded that there was an arguable case of such wrongdoing by the United States, and that was that. The US State Department may still be incensed, but the High Court for its part emphasised that, following the respondent’s concession, it needed to make no such finding.
The second question was more of a hot potato for the United Kingdom itself, and there was no concession. The Court held that the UK was indeed sufficiently involved in the tortious acts to attract Norwich Pharmacal relief; it had had ‘some connection’ to the underlying wrong on account of its knowledge of those acts, coupled with the prior and continuing British interest in the claimant’s activities and whereabouts and interrogations of the claimant by British officials while in US custody. [Note that the Court did not have to decide whether any blame attached to the UK.]
The third question was one of the points where the Court was required to pass on aspects of the American proceedings. It asked whether the claimant needed the information held by the respondent. The Court explained that this requirement did not mean that the claimant would only obtain Norwich Pharmacal relief if the information held by the respondent was the only available source of the information he needed to succeed against the principal tortfeasor, i.e. where Norwich Pharmacal was the last resort of the desperate claimant. There may well be a ‘need’ for disclosure of the respondent’s information even where that need is not quite absolute.
In that respect, counsel for the Foreign Secretary had argued that the US authorities would provide all information of wrongdoing against the claimant to the Convening Authority of the Military Commissions at Guantanamo Bay, and that the Convening Authority would then (a) consider all information relevant to such misconduct by the United States in its decision on whether to charge the claimant, and (b) if it nevertheless did charge him, make all such information available to the defence team. Remarkably, the Court declined to follow that line of reasoning, rather blasting the US authorities in doing so. Witness, for instance, the following reasons (para 126):
– ‘torturers or those who subject those in their custody to cruel, inhuman or degrading treatment do not readily hand over evidence of their conduct’
– ‘If information was to be provided to the Convening Authority by […] some branch of the United States Government, it would have been easy to inform the United Kingdom Government that this would be the case, given the history of this matter [probably a reference to some UK involvement]. […] The fact that no such indication has been given must be a pointer to the fact that the information has not been provided to the Convening Authority.’
– ‘In the proceedings under the former Military Commissions Act no documents were provided under the Order of the Military Judge which related to anything that occurred prior to July 2004. […] [I]t is inconceivable that there are no documents in the possession of the United States Government that relate to what happened to [the claimant] in the two year period from April 2002 to May 2004. There must be documents that record or evidence his movements, his custody and his treatment when interviewed. We have been given no reason why such documents cannot now be produced […] and can think of none.’
– ‘[T]here are grounds, given what has happened since information was discovered in the United Kingdom, which would lend support to the view that the United States Government will seek to delay as long as possible the disclosure of not only the information and documentation provided by the United Kingdom Government, but other information which it undoubtedly also has or had in its possession.’
Those are strong words indeed, from a judiciary that is hardly the most activist and certainly not the most blunt in the world. The United States are basically accused of a cover-up, and one that is bound to make for an unfair trial at that.
I will not address question No. 4, which only led the Court to exclude some of the information sought from the claimant’s right of disclosure. The fifth question, for its part, required the Court to exercise its discretion on whether to order disclosure or not. It held that a Norwich Pharmacal order should be made. The strong revulsion that the common law has for centuries felt for the practice of torture, and which is amply reflected in international law, played a very important role in guiding the Court’s discretion. But the Court also took another swing at the US, saying:
‘We can think of no good reason why the materials have not now been made available by the United States Government to [the claimant]’s lawyers in confidence and subject to the strict conditions of secrecy in which part of the proceedings before the Military Commissions operate, given that;
(1) BM has been in custody by or on behalf of the United States for over 6 years.
(2) There is independent evidence of the deterioration in his mental health.
(3) It cannot be said that the materials are not identified and available, as the materials have been identified to the Executive Branch of the United States Government (which is responsible for the prosecution) at its highest level.
(4) The unreasoned dismissal by the United States Government of [the claimant]’s allegations as "not credible" as recorded in the letter of 22 July 2008 is. in our view, untenable, as it was made after consideration of almost all the material provided to us.
It is of particular significance that the United States Government has refused to provide any information as to [the claimant]’s location during the period between May 2002 and May 2004. The fact that no explanation has been provided to date (despite the disclosure in the earlier proceedings) is a matter of serious concern in relation to the practical operation of the disclosure procedures before the United States Military Commission and a pointer towards the very real difficulties that [the claimant]’s lawyers may face in obtaining information under the United States Military Commissions procedures. It might have been thought self evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee’s family and those representing him.
In these circumstances to leave the issue of disclosure to the processes of the Military Commission at some future time would be to deny to BM a real chance of providing some support to a limited part his account and other essential assistance to his defence. To deny him this at this time would be deny him the opportunity of timely justice in respect of the charges against him, a principle dating back to at least the time of Magna Carta and which is so basic a part of our common law and of democratic values.’
Again, those are strong words. Yet I see nothing remotely untrue in them. If anyone is offended by these remarks, they are barking up the wrong tree.
One danger remains, though: the Court has now only decided that Binyam Mohamed had a general right to obtain the information held by the Foreign Office and the Secret Intelligence Service. The Foreign Secretary is still free to argue that disclosure would be prejudicial to the national security of the United Kingdom, under the rules of ‘public interest immunity.’ The Court has left that over for a second hearing. I fail to see why annoying even an important ally should be a relevant danger to national security, but I’m not sure all judges would agree. US judges have certainly taken or at any rate allowed a rather expansive reading of national security, so much so that even embarrassment has been taken to be somehow ‘dangerous.’ We’ll see what the High Court makes of this.
That left the issues of international law to be dealt with. The claimant’s lawyers had argued that the right of disclosure of any British information about the wrongdoing of the United States derived not only from the common law, but also from international law. Strictly speaking, since the claimant had already succeeded in his claim under Norwich Pharmacal, he didn’t need any further entitlement under international law. Still, the High Court went there anyway.
The first argument advanced was based squarely on Article 15 of the UN Convention against Torture. That article provides:
‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’
Counsel for the claimant had argued that this implied more than an obligation not to admit as evidence statements procured by torture. In particular, there was an implied obligation on the United Kingdom ‘to disclose to a victim of torture information in its possession which demonstrates that evidence which another State intends to use against that victim was in fact obtained by torture.’
The High Court did not agree. It held that Article 15 applied only to proceedings under the control of the State obliged by it. A State could not take responsibility for the admission of evidence in trials in which it had no power. Nor could a State be obliged to intervene in another State’s judicial proceedings to the extent envisaged by the claimant’s argument. I think that’s correct, not least because of the obvious relationship of Article 15 with the right to a fair trial (Articles 14 ICCPR, 6 ECHR), which likewise can only apply to a State’s own proceedings (or to arbitrations under its authority).
That conclusion made it unnecessary for the Court to rule on the claimant’s submission that Article 15 also represented an obligation under customary international law. That submission was necessary because international treaties ratified by the UK are not as such part of its domestic law (see e.g. A and Others v Secretary of State for the Home Department (No. 2)  UKHL 71,  2 AC 221, para 27), unlike customary international law (Trendtex Trading Corp v Central Bank of Nigeria  QB 529). The High Court only set out the claimant’s argument on this point and said that ‘it may well be’ true. I might add that I have previously said that it is: EJIL 17 (2006), 349, 365.
But the claimant also had a much more fundamental argument: the right of disclosure contended for was said to derive from the nature of international jus cogens itself. In that context, the High Court referred to a good deal of authority, including Article 41 of the ILC Articles on State Responsibility, the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (para 159) and the judgment of Trial Chamber II of the ICTY in The Prosecutor v Anto Furundzija (paras 155-157).
The High Court accepted that there could be an obligation in general international law even for unaffected States ‘to act on the international plane to vindicate the rule against torture.’ However, it found no support for the proposition that the specific rule contended for on behalf of the claimant currently existed in positive international law (it may perhaps be regretted that the Court was looking specifically for ‘judicial support’). Article 41 of the ILC Articles, the Court said, did not bear that meaning, as it was one thing to outlaw the recognition by States of a state of affairs brought about by violations of jus cogens, and another to say that a State had to help a private victim of such a violation by assisting him or her with the information necessary for a court challenge of some kind. The rule laid down in Article 41, as also reflected in Furundzija and in the Wall opinion, might well explain the rule on the inadmissibility in evidence of statements procured by torture (I have suggested as much in pp 363-365 of my EJIL article, mentioned above), but does not entail the duty to inform that would have assisted the claimant.
The claimant’s argument indeed seems a bit far-fetched. His counsel will probably have hoped for some more ‘inspired’ analysis by the Court, possibly occasioned by a greater revulsion at the ‘legal black hole’ of Guantanamo Bay.
It is not entirely impossible that such revulsion has already motivated the two English judges to decide as they did. Nonetheless, their judgment on the Norwich Pharmacal application was fairly straightforward. Depending somewhat on the outcome of the later hearing on ‘public interest immunity’ (national security), the result is also quite welcome, at least to me.
It is regrettable, however, that such things do not seem to happen in the US (much).