Torture, Tort and Terror: The Non-Delegable Duty to Protect Nationals from Torture in the Context of Ant-Terrorism

Abstract

Even if they did not procure or otherwise contribute to the torture of nationals abroad, Canadian officials owe Canadian nationals a positive duty to prevent torture overseas. This duty is non-delegable in nature.

This paper sets out the doctrinal basis for concluding that such a duty exists and emphasizes the importance of recognizing such a duty for equal citizenship guarantees.

The paper is divided into several parts. Part I links the torture of several Canadian-Arab-Muslim men to the information sharing practices and other counter-terrorism strategies of Canadian national security agencies. Part II reviews the absolute prohibition on torture and argues that torture cannot be justified as a counter-terrorism strategy. Part III explains why Canadian officials owe a positive, non-delegable duty to prevent torture while Part IV reflects on the access to justice implications of the non-delegable duty to prevent torture.

Keywords: Torture, Tort, Terrorism