British Court Decision Undermines Global Torture Ban

[Henk Elegeert]

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British Court Decision Undermines Global Torture Ban

(London, August 11, 2004) — A ruling by Britain’s
second-highest court undermines the global ban on torture,
Human Rights Watch said today. In a 2-to-1 ruling, the Court
of Appeal said that evidence obtained under torture in third
countries may be used in special terrorism cases, provided
that the British government has “neither procured the
torture nor connived at it.”

“This is a dramatic rollback in fundamental rights,” said
Rachel Denber, acting executive director of Human Rights
Watch’s Europe and Central Asia Division. “The global ban on
torture is absolute. Britain should be a leader in upholding
that principle rather than looking for ways around it.”

The court ruled that the British government can use evidence
obtained under torture outside the country when deciding to
detain indefinitely foreign terrorism suspects, unless
Britain was involved in the torture or encouraged it. The
same material can also be considered by the Special
Immigration Appeals Commission, which hears appeals by these
suspects against indefinite detention. Much of the evidence
before this commission is heard in closed proceedings to
which the detainees and their lawyers of choice have no
access. Instead, they are represented by security-cleared
lawyers appointed by the government.

Under the Convention Against Torture, to which Britain and
more than 130 countries are party, evidence obtained under
torture is inadmissible in “any proceedings” before a court.
But the majority in the Court of Appeal said today that
because the Torture Convention is not part of British
domestic law, the Home Secretary has no obligation to
enquire about how information from third countries was
obtained when he certifies foreign nationals as suspected
international terrorists.

“The court’s decision sets a devastating precedent,” said
Denber. “Arguing that torture is acceptable provided that
the British government is not involved is a shocking
abdication of responsibility.”

In his dissenting judgment, Lord Justice Neuberger made
clear the consequences of the majority’s decision, stating
that “by using torture, or even by adopting the fruits of
torture, a democratic state is weakening its case against
terrorists, by adopting their methods, thereby losing the
moral high ground an open democratic society enjoys.”

The ruling came in the Court of Appeal’s decision rejecting
the appeals of 10 foreign nationals certified as suspected
international terrorists under the Anti-Terrorism Crime and
Security Act 2001. The men were appealing against earlier
decisions by the Special Immigration Appeals Commission to
uphold their certifications as suspected international
terrorists.

Nine of the men are subject to indefinite detention under
the law without charge or trial, together with three
additional suspects, who were not parties to today’s appeal.
The tenth appellant has left Britain. The Court of Appeal
denied the men permission to appeal to the House of Lords,
but the men have the right to request such permission
directly from the higher court.

The ruling is the latest in a series of blows to human
rights protection in Britain arising from the indefinite
detention allowed under Part 4 of the Anti-Terrorism Crime
and Security Act 2001. In order to enact the law in December
2001, Britain suspended part of its human rights obligations
under the European Convention on Human Rights and the
International Covenant on Civil and Political Rights. The
Joint Human Rights Committee of the British Parliament has
called for indefinite detention under Part 4 to be scrapped
“urgently,” arguing it has a “corrosive effect
on the culture of respect for human rights.”

This October, a specially convened nine-judge panel in the
House of Lords will hear an appeal on the lawfulness of the
derogation and the compatibility of the legislation with
other human rights obligations from which Britain has not
derogated.

In the three years since the September 11 attacks in the
United States, governments around the world have adopted
counterterrorism measures that violate fundamental human
rights. They have adopted laws allowing indefinite detention
without judicial review, and restricting or denying
altogether access to counsel in terror cases. They are also
increasingly reneging on their obligations not to send
terror suspects back to countries where they would be at
risk for torture, frequently justifying such returns by
seeking “diplomatic assurances” from governments with
long-standing records on torture that the suspects would not
be harmed.

To read Human Right’s Watch’s briefing paper analyzing the
indefinite- detention regime in the United Kingdom, please
see: http://hrw.org/backgrounder/eca/uk/index.htm

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