(Last updated: 26 november 2012)ASSESSMENT OF INFORMATION
In analysing gathered information, the Ombudsperson employs a methodology appropriate to an international context, which is not reliant on the procedural rules of any one legal system.1 In addition, the method is consistent with the preventative nature of the sanction measures and the applicable criteria and standard.
Specifically, all of the information obtained will be considered in the Comprehensive Report. The Ombudsperson does not ‘admit’ or ‘exclude’ information or otherwise apply ‘rules of evidence’ as recognized in some legal traditions, notably the common law. Rather, each piece of information is assessed inter alia as to relevance, specificity and credibility. In some instances, as a result of this assessment, the Ombudsperson may decide not to rely on specific information and it will not form part of the analysis or basis for the recommendation. That finding and the reasons for it will be detailed to the Committee.
In assessing the credibility/reliability of information the Ombudsperson considers factors such as detail, particularity, source (to the extent known), corroborative or reinforcing material, and whether there is similar information from different sources.
Importantly, in each case, the Ombudsperson will also look at the totality of the circumstances and the inferences to be drawn from the gathered information once cumulated.
INFORMATION ALLEGED TO HAVE BEEN OBTAINED BY TORTURE
It is possible that information gathered by the Ombudsperson, relevant to a particular listing by the Al-Qaida Sanctions Committee, will be challenged by the Petitioner as having been obtained through torture. In accordance with relevant international instruments and norms,2 any such allegation will be given careful and serious consideration by the Ombudsperson. Further, the Ombudsperson operates from the premise that information obtained through torture is inherently unreliable. As a result, such a contention is directly relevant to the credibility of the information, which is a key component of the standard applied by the Ombudsperson.3
If such impugned information is ultimately advanced in support of the listing,4 the Ombudsperson will make inquiries of any relevant State, organization or individual and will endeavour to gather as much information as possible with respect to the assertion of torture.
If satisfied to the applicable standard 5 that the information has been obtained through torture, the Ombudsperson will not rely upon the information in the analysis and it will not form part of the basis for the recommendation. As indicated, the analysis and observation in this respect will be recounted fully to the Committee for its consideration.
Further, even if the use of torture is not demonstrated to the relevant standard, the material gathered may still be such that it will affect the weight which will be accorded to the impugned information. Once again any such determination will be detailed in the Comprehensive Report.
1 This is consistent with the approach taken to the development and application of a standard for the analysis. See ‘Approach to, and Standard for, Analysis, Observations, Principal Arguments and Recommendation’.
2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984, 1465 U.N.T.S. 85) (“CAT”); International Covenant on Civil and Political Rights (16 December 1966, 999 U.N.T.S. 171), Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (precursor of CAT) (GA Res. 3452 (XXX), 9 Dec. 1975).
3 The standard applied is whether there is sufficient information to provide a reasonable and credible basis for the listing.
4 In two cases, the Petitioners alleged that certain information had been obtained by torture but ultimately that information was not submitted in the Ombudsperson process in support of continued listing and therefore was not considered.
5 In the view of the Ombudsperson, the standard should be consistent with that used to assess the delisting petition generally. Thus, the question will be whether there is sufficient information to provide a reasonable and credible basis for the allegation of torture with respect to the specific information in question.