APPENDIX 12
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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