Evidence through torture?

The group Human Rights Watch claims that Britain, France and Germany all use evidence obtained through torture in their efforts to combat terrorism. Deutsche Welle talked to Judith Sunderland, senior researcher for western Europe at Human Rights Watch, who is the author of the report. She claims that the countries are undermining commitments to the absolute prohibition of torture.

DW: Which countries does this foreign intelligence come from?

Judith Sunderland: It depends on the particular European country. The UK cooperates quite a lot with Pakistan and Uzbekistan, Germany cooperates quite a lot with Uzbekistan and has also received information from Pakistan. With respect to France we look at the passage of information from Syria, Jordan the United Arab Emirates and Algeria.

What sort of intelligence are we talking about here?

Well in some instances, quite a lot of the time actually, it is statements and information extracted from people who are in the custody of intelligence services in these countries - intelligence services that are renowned for torture and ill-treatment.

Britain has said that it can't afford the luxury of dealing only with agencies that shared its standards, since the intelligence it had obtained from others had saved British lives. What do you say to that argument?

We completely acknowledge how important international collaboration is in the fight against international terrorism and we're not suggesting that there be no cooperation whatsoever. What we do argue is that such cooperation cannot operate outside of international law and that when European countries receive information from partner intelligence services that are notorious for torture and ill-treatment they need to make very serious, diligent inquiries to find out about the sources and methods that were used and to communicate very clearly their opposition to torture and ill-treatment if it comes to light that those methods were in fact used to obtain information.

Do the French and German governments think along similar lines to the argument put forward by the British government?

The two principle arguments we hear from all three countries are that this cooperation is absolutely vital and that they cannot always know the sources and methods used to obtain shared information, but it just goes back to my point. It is our argument that they really need to turn this no-questions-asked policy on its head and begin to ask the hard questions and get to the bottom of the methods used and that is the way that they can engage in international counter-terrorism in a way that complies with their obligations under international law.

Can you give us an example of information acquired under torture that has been used as evidence to gain a conviction on criminal charges here in Germany?

Not to obtain a conviction, but what I can tell you about is the case of a naturalized German citizen of Pakistani origin who was detained by the ISI, the Pakistani intelligence services which is incredibly notorious for torture and ill-treatment. He was detained for several months by the ISI and during that time the ISI sent Germany three brief reports on him, including a statement he is alleged to have made, which he claims he made after torture and ill-treatment. While he was still in ISI custody, a court in Germany authorised a search of his house on the basis of those ISI reports and then the evidence collected in that house search was used against him in court and helped lead to his conviction.

How clear is the law in Germany on preventing the use of information acquired under torture?

Well the law is very clear, as it should be, that evidence obtained under torture is absolutely prohibited and it cannot be used in legal proceedings.

What we see is a problem in the implementation of what should be a very strict rule. On the one hand, German law does not prohibit the use of what is called the fruit of the poisoned tree, which is the example I just gave you where evidence was collected as a result of statements made under torture or ill-treatment - what was found in a house search - and German law does not prohibit that.

The second point is the burden of proof. It is up to the defendant on trial to establish that evidence was obtained under torture in order to have it excluded and removed from the records and not used whereas we argue, as does the United Nations special rapporteur on torture and the Council of Europe Commission on Human Rights, that the burden of proof in these situations should be on the prosecutor and the courts to establish that information was not obtained under torture.

You say that intelligence services lack detailed instructions on how to assess and respond to information from countries that use torture. What should those instructions look like in your view?

Well, they should, at a minimum, require intelligence officers receiving information from countries that have a very poor record on human rights to take extra steps to inform themselves about the sources and methods that were used to make inquiries of the sending country and then follow up on those inquiries with their own investigation to ascertain as much as they can under what conditions the information was obtained. That should also include consulting open sources like NGOs and United Nations reports on the situation in the country and general treatment of detainees as well as consultation with their foreign ministries to get their assessment of the overall situation and it is our view that if there is a real risk that this information was in fact obtained under torture or ill-treatment, they should be required to suspend cooperation in that particular case and communicate very clearly to the sending country their opposition to the methods used.

Your report singles out Britain, France and Germany for criticism. Are those three countries that much worse than other EU countries in this regard?

We decided to look at the UK, France and Germany because they are leading European countries and they are important allies in the fight against terrorism and we had reason to believe that all three are engaging in ongoing cooperation that fundamentally undermines the absolute prohibition against torture, which our research then bore out. I should mention that officials in the United Kingdom and Germany very openly rationalize for the use of foreign torture information and that sends a very dangerous message to countries where torture is an organized practise, that it is, in essence, acceptable in the name of countering terrorism and we strongly argue that all three countries need to very publicly and firmly repudiate the use of foreign torture information and take every necessary step to build in these kind of safeguards to ensure that it doesn't happen.

Interviewer: Mark Caldwell
Editor: Rob Turner