In a guest blog for the Bar Council, Stefanos Arvanitakis provides an insight into the work conducted to restate the absolute prohibition on torture-tainted evidence in legal proceedings.

In October 2021, I was given the opportunity to work alongside a small group of students at the King’s Legal Clinic on an amicus curiae brief. The brief, which would be submitted to the United States District of Columbia Circuit Court of Appeal, was in support of the absolute prohibition of torture-tainted evidence in pre-trial proceedings, to be submitted to the DC Circuit Court of Appeal.

Following the decision of a Military Commission in the case of U.S. v. Al-Nashiri to admit evidence purportedly obtained through torture in pre-trial proceedings, Mr Al-Nashiri’s case received international attention. Crucially, this was the first instance in which prosecutors in cases related to Guantanamo Bay are known to have been allowed to use information derived from torture in pre-trial or any other proceedings. The stakes, therefore, were particularly high.

Under immense time pressure and with the guidance of Professor Philippa Webb and Dr Rosana Garciandia, as well as Assistant Director of the Clinic, Sue Willman, we put together a document compiling primary and secondary sources of international and national law, highlighting the overwhelming global consensus on the prohibition of admitting statements obtained through torture in any phase of legal proceedings. For the students taking part, the only way to describe our experience is as a three-week deep dive into international human rights law.

As also laid out in the amicus brief submitted to the US court, the prohibition of torture-tainted evidence under international human rights law is absolute and categorical, and for good reason. Torture constitutes a violation of fundamental individual rights and undermines human dignity, a cornerstone of the human rights system. Moreover, there are significant questions regarding the legitimacy and reliability of evidence obtained through torture and its use, at any stage, undermines the individual’s right to a fair trial and the rule of law altogether. 

To reinforce our view, however, we could not solely rely on a normative defence of the categorical prohibition of torture evidence. We had to find support in State practice and international jurisprudence. It is in this respect that the diversity of the Clinic group assisted us in producing a comprehensive, wide-ranging amicus submission. Working in English, Spanish, and French, our team looked at international and regional treaties and judgements, including decisions and General Comments by the Human Rights Committee and Committee Against Torture, as well as judgments of the European and Inter-American Courts of Human Rights. In addition, we were instructed to also examine common law jurisdictions ranging from the US and the UK to Hong Kong and South Africa, to reflect on and express the consensus on the inadmissibility of torture evidence in different parts of the world, and in line with international legal standards.

The third week of research saw some of us constructing original arguments based on the literature review and case law analysis we had conducted. Specifically, we were tasked to formulate a coherent argument distinguishing torture-tainted evidence from hearsay evidence, an analogy made by the Military Commission to allow for the admission of illegally obtained statements in pre-trial proceedings and interlocutory motions.

The importance and relevance of the project spans far beyond the case at hand and raises significant normative and legal questions regarding torture and fundamental rights protection. If the Military Commission’s judgement were to stand, that would substantially impair access to fair trial in future cases and would legitimize the use of torture and cruel, inhuman, and degrading treatment, at the very least in specific contexts.

Indeed, the King’s Legal Clinic team was pleasantly surprised just a few months after our submission. The US Department of Justice welcomed the amicus and reversed the earlier decision made by the Military Commission, reiterating the absolute prohibition of torture and illegally obtained evidence in February 2022.

The decision of the Biden administration is certainly a big step in the right direction. Nonetheless, there are a couple of vital questions that remain unanswered. The Al-Nashiri case is not the only case brought before a Military Commission involving the use of torture-tainted evidence. It is, therefore, particularly interesting to see how pending cases that raise the question of statements obtained through torture will be treated by both the Military Commissions and the US Government, and whether the Government is ready and willing to conduct transparent, thorough reviews of torture claims, and adopt similarly necessary decisions. It is in this sense that the decision can be said to “not go far enough”.

This bitter-sweet taste that the decision left in the mouths of the supervisors and the Clinic student researchers is captured in the film How To Change The World (in a small, and perhaps rather frustrating, way)

The short film aims to highlight the work of the Legal Clinic and our mentors, shed light on the Al-Nashiri case, and address the problem of torture and fair trial rights through the eyes of law students.

All in all, and as a matter of self-reflection, the Legal Clinic experience is one that I will carry with me during the remainder of my academic journey and throughout my professional life for two reasons. First, it was an adventure that showed to us all the tangible and positive impact that human rights litigation can have on people’s lives and, potentially, on State policy and compliance with international norms. On a more personal level, however, and looking back to it with hindsight, it is probably what verified my interest and commitment in international law and human rights, and what has shaped me into the person I am today, as well as the person I want to be tomorrow.

Stefanos Arvanitakis is an LL.M. Candidate in International Law at the Geneva Graduate Institute, specializing in the protection of the individual in international law. He is a Human Rights intern at the Permanent Mission of Greece to the United Nations in Geneva and a Junior Fellow for the Centre for International Governance and Dispute Resolution (CIGAD) at The Dickson Poon School of Law. Stefanos graduated from King's College London with a degree in Politics, Philosophy and Law LLB.