A/HRC/22/52
must be determined by a body that is independent of the executive, following an adversarial
procedure with such adaptations as may be strictly necessary to ensure effective
independent oversight without unjustifiably imperiling legitimate national security
interests.100 Where such claims are advanced there should be a strong presumption in favour
of disclosure,101 and any procedure adopted must, as a minimum, ensure that the essential
gist of the classified information is disclosed to the victim or his family, and made public.102
42.
The Special Rapporteur commends as a model the approach adopted by the
Canadian authorities (and by the investigating judge Justice Dennis O'Connor) in the Maher
Arar Inquiry103 into the rendition and torture of a Canadian citizen pursuant to the Bush-era
CIA's counter-terrorism programme. In that case, the judge was provided with all
documentation, irrespective of the possible national security claims that arose; the Canadian
Government highlighted the passages it considered to be classified; the judge determined
the claim on the merits; and his determination was potentially amenable to judicial review.
Making full use of these powers, Justice O'Connor concluded that the Royal Canadian
Mounted Police had provided “inaccurate and unfairly prejudicial” information to the FBI,
which led to Mr. Arar's detention at JFK airport in New York, and his subsequent transfer
to via Jordan to the Syrian Arab Republic, where he was imprisoned for 10 months and
subjected to repeated acts of torture including beatings with cables, and being threatened
with torture by electric shocks.104
43.
In his final report, Justice O'Connor made a series of important recommendations
about the need for an integrated intelligence oversight and accountability mechanism in
Canada. He also concluded that the success of the inquiry in getting at the facts was a direct
consequence of his powers to compel production of evidence and the attendance of
witnesses, and to assess the competing interests of national security and public
accountability for himself.
C.
Situations of pressing concern
44.
In February 2010, four special procedures mandate holders presented the United
Nations joint study on secret detention while countering terrorism to the Human Rights
Council.105 After the report was presented, and in order to follow up its findings and
recommendations, the authors wrote to all States identified in the report seeking their
response to the concerns it had highlighted. The Special Rapporteur notes with concern that
a significant number of States simply failed to respond. The Special Rapporteur calls on all
100
101
102
103
104
105
of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Professional
Training, Series No. 8, Rev. 1 (2004) (“Istanbul Protocol”), http://www.unhchr.ch/pdf.8istprot.pdf,
paras 80 and 108(a).
Marty III, op. cit., footnote 15, paras. 13.3, 51(4) and 56.
Report of Events Relating to Maher Arar, [Reference], p. 277.
United Nations Basic Principles on Remedy and Reparation for Gross Human Rights and
Humanitarian Law Violations, op. cit., footnote 33, paras. 22(a) to (d): Istanbul Protocol, op. cit.,
footnote 99, para. 82; ECtHR, A. and Others v. United Kingdom, application No. 3455/05, Judgment
at paras. 218 to 220; Case T-85/09 Yassin Abdullah Kadi v. European Commission, General Court
(Seventh Chamber), 30 September 2010 [2011] CMLR 24, paras. 173 to 174; Home Secretary v. AF
(No. 3) [2010] AC 289.
Report of Events Relating to Maher Arar, , pp. 283-284.
In light of the findings of the Maher Arar Inquiry the Prime Minister of Canada issued a formal
apology made a payment of $10.5 million in compensation to Mr. Arar.
United Nations Joint Study on Secret Detention, op. cit., footnote 1.
17
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