APPENDIX 13
Memorandum submitted by Professor Sir
Nigel Rodley KBE
I am writing in response to the Committee's
invitation to make written submissions prior to their short inquiry
into the forthcoming emergency anti-terrorism Bill, which will
be published during the week beginning 12 November.
It is evident from the experience of my mandate
as Special Rapporteur of the UN Commission on Human Rights on
torture (as well as that of other Special Procedures of the Commission)
that, in times of conflict, governments are tempted to abandon
the rule of law in the name of a concept of necessity. Thus, they
resort or turn "a blind eye" to unlawful practices that
they perceive, however erroneously, will permit them to obtain
important information or confessions. Torture is the most typical
such practice. The fact that it is a crime under their own law
as well as international law is overlooked. Any such temptation
in this direction as part of the campaign against the sort of
terrorism that was the 11 September abomination must be resisted.
Suggestions have been heard also that, in order
to avoid States becoming safe havens for such terrorists, the
international law rule preventing the sending of suspected terrorists
to countries where they face torture should be ignored. That would
simply amount to complicity in torture and must be similarly resisted.
It does not follow that safe havens for terrorists
are the only alternative. That would be unconscionable. The attack
on the United States of America was undeniably a crime against
humanity. Unfortunately, the Rome Statute of the International
Criminal Court (ICC) is not yet in force, otherwise it could have
jurisdiction either directly or by Security Council reference.
But there is nothing to prevent the Security Council establishing
an ad hoc tribunal, as with the former Yugoslavia and Rwanda,
to deal with those involved in the perpetration of the 11 September
atrocity.
In addition to measures involving a potential
international jurisdiction, the possibility of universal jurisdiction
should not be overlooked. In respect of certain crimes, international
law permits and, in some cases, requires States to exercise jurisdiction
on the mere basis of presence in their territory. These crimes
undoubtedly include crimes against humanity and some forms of
terrorist activity. The problem is that too many States have not
endowed themselves with the necessary legislation. The UK is one
of these. Indeed, a number of us argued that the UK should make
crimes within the jurisdiction of the ICC also triable in the
UK courts. The Government's unwillingness to follow that advice
was never satisfactorily explained. Now is the time for them to
reconsider their earlier reluctance.
In sum, it is necessary to ensure that those
responsible for this atrocity are brought to justice for their
appalling crime under international law and this must be achieved
without committing another crime under international law. To fall
into that trap would be to permit those who are behind or defend
or apologize for the criminals to assert that the proclaimed values
of the international community are hollow and certainly no better
that the travesties of principle that they claim to uphold.
November 2001
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