A/HRC/22/52 independent investigations into past practices 82; (d) the assertion by the executive of unjustified claims for secrecy on grounds of national security or the maintenance of good foreign relations83; (e) the suppression84 or delayed publication85 of reports of independent investigations whose findings might expose past official wrongdoing to public scrutiny; (f) executive inertia motivated by a desire to “draw a line” under the past 86; (g) more or less oblique invocation of the “superior orders” defence, despite its prohibition under customary law and relevant international treaties87; and (h) excessive judicial deference to the executive on matters related to national security88 or the maintenance of good foreign relations89, with the effect of excluding the right of access to court, or unjustifiably restricting the exposure of the facts, often on the basis of highly dubious legal reasoning.90 Approaches such as these are antithetical to securing accountability and if they are allowed to go unchallenged, a blanket of official impunity would be allowed to descend, cloaking official crimes from public scrutiny on the pretext of defending state secrets. 6. The invocation of national security and the State secrets doctrine 38. If the right to truth and the principle of accountability are to be secure in domestic law, the national judiciary must play its part. Judges of national courts and tribunals are equally bound by the State‟s international law obligations, and are under a duty to ensure the unfettered right of access to court for the vindication of any cause of action arguably recognized under domestic law. Given the importance of the right to truth and the principle of accountability, the domestic judiciary is bound to subject executive claims of nonjusticiability on national security grounds to the most penetrating scrutiny.91 Similar scrutiny must be directed to executive claims to exemption from normal rules of disclosure in legal proceedings.92 As the Council of Europe Guidelines on Eradicating Impunity for Serious Human Rights violations point out, the need for public accountability follows from the fact that the eradication of impunity is not only a matter of justice for the victims, but 82 83 84 85 86 87 88 89 90 91 92 Directorate of Operations, despite their relevance to ongoing investigations. No charges were brought. For details see http://www.washingtonpost.com/wpdyn/content/article/2010/11/09/AR2010110904106.html. El-Masri, op. cit., footnote 26, paras. 192 to 193; See also Adam Bodnar and Irmina Pacho, Domestic Investigation Into Participation of Polish Officials in the CIA Extraordinary Rendition Program and the State Responsibility under the European Convention on Human Rights, Polish Yearbook of International Law, 2011 (“Bodnar and Pacho”). R (Binyamin Mohamed) v. Foreign Secretary (No. 2) [2009] 1 WLR 2653 (“Binyamin Mohamed”); El-Masri, op. cit., footnote 26, para. 191. Bodnar and Pacho , op. cit., footnote 82. See paras. 45–50 below. The Council of Europe Committee of Ministers Guidelines on Eradicating Impunity for serious human rights violations, 30 March 2011, point out “impunity is caused or facilitated notably by the lack of diligent reaction of institutions or State agents to serious human rights violations”. See para. 18 and footnotes 13 and 14 above. El-Masri, op. cit., footnote 26, para. 191. R (Al Rawi) v. Secretary of State for Foreign and Commonwealth Affairs (United Nations High Commissioner for Refugees intervening), [2006] EWCA Civ 1279. See, for example, the statement issued by the Special Rapporteur on 12 April 2012 concerning the decision of United States District Court of Columbia to refuse a freedom of information request for information concerning the involvement of United Kingdom public officials in the CIA rendition programme on the plainly erroneous basis that the applicant (the United Kingdom's all-party Parliamentary Group on Extraordinary Rendition) is an emanation of Government: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12053&LangID=E. El-Masri, op. cit., footnote 26, paras. 191–193. Binyamin Mohamed, op. cit., footnote 83. 15