Should the duty to investigate apply extraterritorially? If so, what should its scope be?
Internationally, wrongful conduct often results from the collaboration of several States rather than from one State acting alone. This may involve one state aiding and assisting another state in the commission of such a wrongful act outside its own territory. For instance, in the context of counterterrorism, Germany has assisted the United States in committing drone strikes that have potentially resulted in unlawful deaths. The question then is: To what extent does Germany have a duty to investigate these unlawful deaths? And should its investigation merely focus on its own responsibility or should it also take reasonable steps to assess the responsibility of the United States?
This is an unsettled area of the law as the limits of the scope of the duty to investigate have not been clearly elaborated and as there are few cases outside the non-refoulement context that deal with the duties of aiding and assisting states. At the same time, it may often be more promising to target an assisting state rather than the primary perpetrator state because the assisting state may be a party to relevant human rights treaties, or it may be more responsive because it wants to shift blame away from itself or because it is generally more respectful of human rights.
The Duty to Investigate
States have a duty to investigate violations of certain human rights, such as the right to life or the prohibition on torture. A state’s duty to investigate is triggered where it knows or should have known of any potential violation. It applies wherever the state has a duty to respect and ensure the respective right. Where the duty to investigate applies, it applies to all states that may have contributed to the incident of torture or that may have failed to protect the individual from torture.
International law requires that investigations be: (i) prompt; (ii) competent, effective and thorough; (iii) independent and impartial; and (iv) transparent. States are required to take reasonable steps to fulfill the duty to investigate. Successful investigations must be capable of ensuring accountability. As the ECtHR held in the context of torture, an investigation:
… should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance … ,would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.
Thus, investigations should aim at identifying and, if justified by the evidence, prosecuting and punishing all those responsible. At a minimum, investigations should take all reasonable steps to:
- Identify the victim(s);
- Recover and preserve all material probative of the violation;
- Identify of the perpetrator(s);
- Identify possible witnesses and obtain their evidence in relation to the violation and the circumstances surrounding it;
- Determine the cause, manner, place and time of the violation, and all of the surrounding circumstances; and
- Determine who was involved in the violation and their individual responsibility.
Importantly, investigations must seek to identify not only those officials directly committing the violation, but also all individuals who were responsible for the incident. For instance, investigations should include officials in the chain of command who were complicit in the incident of torture in order to ensure accountability for their complicity. Importantly, this includes all officials without regard to their nationality or residence.
There are two potential objections to construing the duty to investigate to require the assisting state to investigate the responsibility of the recipient state: (a) the duty to investigate so construed violates state immunity; and (b) the duty to investigate so construed does not apply extraterritorially.
(a) State Immunity
Under the principle of immunity, one reason not to extend the prohibition against torture to extraterritorial instances of aiding and assisting torture might be that it would require courts adjudicating the responsibility of the assisting state to pass judgment on the responsibility of the recipient state. However, as the UK Supreme Court decided in Belhaj v. Straw, where a court does not exercise jurisdiction over a third state it may proceed to trial with claims even where the actions of non-consenting and absent third states may be reviewed. The court argued that mere “reputational” harm is not sufficient to bar courts from reviewing the conduct of foreign states.
Like suits that don’t implead third states, investigations also don’t affect third states’ rights or liabilities. The results of such investigations may at most cause reputational harm, which would also not seem sufficient to bar states from investigation violations for which they were partly responsible. Consequently, state immunity does not limit the scope of the duty to investigate.
(b) Extraterritorial Application
The issue whether the duty to investigate should apply extraterritorially is more difficult as the law on this issue is significantly more contested and still very much in the making. Even to the extent that the duty to respect human right applies extraterritorially, it can be objected that positive obligations to ensure human rights should be territorially limited because in most cases they require states to have control over a territory or a population in order to be able to realize them. By contrast, negative duties to respect human rights don’t require control over a territory or population because the state agents who are bound by that duty are by definition under the state’s control.
However, although the duty to investigate is generally considered to be a positive obligation, it is relevantly similar to negative obligations. As in the case of negative duties, the state here also by definition has control over the state agents responsible for the investigation. Moreover, since the duty to investigate only requires states to take all reasonable steps towards investigating the responsibility of all actors involved, it does not require states to successfully establish their responsibility. That is, the duty to investigate has a built in reasonability constraint that takes issues of feasibility into account. Therefore, there would be no added value in limiting the scope of the duty in accordance with control over territory or population since the requirement that only reasonable steps need to be taken towards investigating the responsibility of any actors involved already sufficiently limits the scope of the duty to take into account any difficulties that may arise in applying it extraterritorially.
It may be objected that since it will be very difficult for assisting states to investigate the responsibility of other involved states there is also no added value in having such an expansive duty to investigate. However, it may actually often be possible and fairly easy for states to investigate and reveal important aspects of the responsibility of other states. For instance, states may be in possession of documents that implicate officials of other states who have coordinated the violation in question. As an example, the CIA brokered agreements with Poland and Romania to establish black sites in their territories to unlawfully detain and torture people. Poland and Romania may be in possesion of documents that indicate who approached their officials and who brokered the agreements on behalf of the United States.
Limiting the scope of the duty would enable states to withhold such easily available yet crucial information on the responsibility of foreign states. At the same time, requiring states to take reasonable steps to investigate the responsibility of foreign states by definition does not overburden those states. Therefore, if we assume that negative obligations should apply extraterritorially, then the duty to investigate should also be applied extraterritorially.
Sophia Wistehube is a JD student at Columbia Law School. Before coming to Columbia she studied Philosophy, Politics, and Economics at Oxford University.