Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted the Medical Foundation for the Care of Victims of Torture

  The Medical Foundation is a human rights organisation that works exclusively with survivors of torture and organised violence, both adults and children. It has received some 30,000 referrals since it began in 1985; last year there were 5,031 new referrals from 89 countries.

  The Foundation offers its patients medical treatment and documentation, a range of therapies, including psychotherapy, individual and family counselling, physiotherapy and complementary therapies as well as practical advice with housing and welfare benefits. It trains health professionals and others to work with torture survivors, educates the public about torture, campaigns against torture and works to improve the legal framework regarding the treatment of asylum seekers and refugees.

  We welcome the opportunity to comment on aspects of the forthcoming emergency anti-terrorism legislation, as trailed in the Home Secretary's speech to Parliament on 15 October. We have not yet seen the Bill and therefore must restrict our comments to matters of general principle.

Refoulement, extradition or expulsion of suspects to countries that practise torture or cruel, inhuman or degrading treatment or punishment

  1.  The Medical Foundation welcomes the Home Secretary's clear statement in his 15 October speech to Parliament that the new legislation will fully respect the UK's obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR): "We are not, therefore, seeking to withdraw from or deratify the ECHR, which would be necessary in terms of denying article 3." (Hansard HC Report 15 October 2001, Col. 928) In reply to questions he also said, "It certainly would not be my wish, either, that we returned people to torture and death." (Col. 932)

  2.  As the Committee will be aware, the Home Secretary made reference in his speech to enabling powers allowing implementation by affirmative order of measures emanating from the Justice and Home Affairs Council (Col. 923). The Medical Foundation invites the Committee, in its scrutiny of these powers, to give special attention to the possible effect of measures at a European level on our obligations under Article 3.

  3.  The Medical Foundation attends the Home Office's Developments in Europe forum. At the meeting of 31st October 2001, Home Office officials reported that obligations under Article 3 are under discussion at EU level, although not, as far as we were able to ascertain, at the Council of Europe.

  4.  Officials emphasised that while the UK has no "blueprint" for suggested changes to the law, it was initiating discussions on the absolute nature of States' obligations under Article 3 ECHR. The UK was exploring whether a distinction could be drawn between the obligations a State undertakes toward those within its territory and those who face refoulement to torture outside the territory. It was also seeking to explore whether any distinction could be drawn between "torture" and "cruel, inhuman or degrading treatment or punishment" in the context of refoulement. These two avenues of exploration could be alternative, or complementary.

  5.  Such approaches can in no way be reconciled with our obligations under international human rights instruments. The absolute prohibition on refoulement to torture, cruel, inhuman or degrading treatment or punishment, is a matter of settled international law, not only under ECHR, but under other instruments, for example the Charter of Fundamental Rights of the EU States (Article 19.2) and the UN Convention Against Torture (Article 3).

  6.  The European Court of Human Rights has made clear in its jurisprudence, notably the Soering and Chahal cases, that the obligations under Article 3 are absolute, and apply equally to refoulement cases and to cases where a person faces breaches of his/her rights under Article 3 within the territory of the contracting State.

  7.  It is sophistry to argue that an extraditing State can avoid extra-territorial responsibility for a person refouled to ill-treatment construed as below the threshold of "torture" when the purpose of the whole of the ECHR, the EU Charter of Fundamental Rights and the UN Convention Against Torture is to prevent abuse, not to permit ill-treatment in some circumstances but not others, or to condone it in some jurisdictions but not others.

  8.  The Home Secretary's robust defence of Article 3 in his 15 October speech forms part of a proud tradition. In 1972, the Conservative Government of Edward Heath adopted the minority report of Lord Gardiner of the Privy Council on sensory deprivation techniques or "interrogation in depth" in Northern Ireland. Lord Gardiner's reasonable voice rings as true today as it did 30 years ago:

    The blame for this sorry story, if blame there be, must be with those who, many years ago, decided that in emergency conditions in Colonial-type situations we should abandon our legal, well-tried and highly successful wartime interrogation methods and replace them by procedures which were secret, illegal, not morally justifiable and alien to the traditions of what I believe still to be the greatest democracy in the world.

  9.  There is no scope in international or domestic human rights law for apologists for torture, in peace or in war, either at home or by foreign proxy. We urge the Committee to seek assurances that the Home Secretary's robust approach will not be undermined by developments at the European level. We also urge the Committee to seek to ascertain whether discussions at European Union level have been brought to the attention of the institutions of the Council of Europe.

Universal jurisdiction for crimes of terrorism

  10.  The Home Secretary indicated on 15 October that the emergency anti-terrorism legislation may seek "to derogate from Article 5 [the right to liberty and security of person] of the European convention. That would allow the detention of foreign nationals whom we intend to remove from the country, and who are considered a threat to national security." (Column 924) In practice, this could lead to the indefinite or prolonged detention of those terrorist suspects who cannot be extradited, expelled or returned to another state.

  11.  There are many reasons to oppose the imposition of detention without trial, not least of which is the perceived injustice by the detainee's sympathisers at home and abroad. Internment, as practised under the 1974 Prevention of Terrorism Act, did little to enhance the reputation of British justice or trustworthiness in the eyes of those the British Government most wanted to engage in a peace process. Detention without trial may prove smaller in scale and more narrowly targeted than internment but no less inflammatory to segments of public opinion in the UK and elsewhere.

  12.  We prefer an approach that does not involve derogation from Article 5 ECHR. We recall the Parliamentary debates earlier this year around the International Criminal Court Act 2001. Parliamentarians of all parties as well as a range of organisations (ourselves, Amnesty International, Human Rights Watch, The Law Society, the Bar Council, etc) urged the Government to adopt universal jurisdiction over ICC crimes (genocide, war crimes and crimes against humanity). We argued that UK courts should have jurisdiction over ICC crimes if the accused is simply "present" in the State, which is a form of universal jurisdiction adopted by the Canadian Government when it ratified the ICC Statute. The UK Government initially rejected any notion of universal jurisdiction over ICC crimes but introduced the concept of "residential jurisdiction", while admitting that legal residency might prove difficult to define in particular cases.

  13.  We urge Parliament and Government to revisit this issue. Taking universal jurisdiction over crimes of terrorism would satisfy the need to bring accused terrorists to justice without derogating from Article 5 ECHR. The right to liberty and security of person is a major plank of international human rights law and now of our own Human Rights Act. Such a basic right is not a matter of convenience to be abandoned at the first crisis. Parliament should reaffirm its commitment to the new Human Rights Act by adopting measures that will enhance civil liberties even as those accused of heinous crimes are brought to justice.

  14.  Parliament should close the gap in jurisdiction for UK courts over terrorist crimes. In at least one piece of anti-terrorist legislation, the Suppression of Terrorism Act 1978, Parliament provided for universal jurisdiction, albeit by rather complicated provisions in regard to offences committed within or by citizens of countries which are parties to the European Convention Against Terrorism.[76]

  15.  The ancient principle of justice aut dedere aut punire-either extradite or prosecute-does not allow for a third way, ie, detaining someone until it is convenient to release or expel him. If extradition of a particular suspect is not possible because of the exigencies of Article 3 ECHR or because no State seeks extradition, then prosecution is the just and proper way to proceed. Parliament should not subvert the basic tenet of just punishment: a prescribed penalty for a proven offence.

November 2001

76   We are indebted to Michael Birnbaum QC and Peter Carter QC for their summary of these provisions: "Where a citizen of a Convention country who is not also a UK citizen commits murder manslaughter or certain offences against the Explosive Substances Act 1883 he may be prosecuted here provided the offence was committed outside the Convention country and the UK (s4 (3) and Schedule 1)." (The ICC Bill. Universal Jurisdiction for Courts in England and Wales, para 7). Back

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