Memorandum by submitted by Amnesty International
AMNESTY INTERNATIONAL
Amnesty International is a worldwide membership
movement. Our vision is of a world in which every person enjoys
all of the human rights enshrined in the Universal Declaration
of Human Rights. In pursuit of this vision, Amnesty International's
mission is to undertake research and action focused on preventing
and ending abuses of these rights.
EXECUTIVE SUMMARY
Despite the explicit inclusion of human rights
principles within the CONTEST strategy, Amnesty International
would question whether these principles are currently reflected
in the reality of some of the policies pursued under the strategy.
This is particularly evident within the Pursue strand and policies
such as deportations with diplomatic assurance and Control Orders.
Not only is the UK Government violating its obligations under
international law with regard to deportations, but it is also
risking undermining its own work on Prevent with its mixed human
rights record.
Unless governments across the world respond
to the threat of international terrorism in a manner that is fully
grounded in respect for human rights and the rule of law, they
risk undermining the values they seek to protect and defend. Given
the nature of radicalisation, they also risk undermining the very
policies they are pursuing.
INTRODUCTION
In recent years there has been a noticeable
shift in the Government's approach to counter-terrorism. This
was reflected in the new, more consultative approach taken by
the Home Office in the preparation of the Counter-Terrorism Act
2008, and the more measured response to the failed terrorist attacks
of summer 2007. The then Home Office Security Minister Tony McNulty
referred to this shift in September 2007 when he said that the
Government had made mistakes in its response to the July London
bomb attacks.
Tony McNulty went on to warn against rushing
to legislate in response to the threat from terrorism and said
that one of the mistakes had been the argument that people must
be ready to accept reductions in their civil liberties in the
fight against terrorism. He also said that ministers had been
too ready to adopt exceptional measures which could impact on
the liberties enjoyed as part of the British way of life.[3]
This recognition and new approach is to be welcomed.
Amnesty International firmly hopes that it draws a line under
some of the worst excesses of the UK Government's counter terrorism
policies, such as the indefinite detention of foreign nationals
under Part 4 of Anti-Terrorism Crime and Security Act.
Amnesty International further welcomes the inclusion
in the 2006 CONTEST strategy of a number of overarching principles.
The first of these is in paragraph 44: "The Government believes
that respect for international law and human rights standards
must be an integral part of its efforts to counter terrorism.
The promotion of good governance and human rights internationally
is also a key element of wider efforts to combat terrorism and
extremism."[4]
Foreign Secretary David Miliband's recent remarks
on international counter-terrorism efforts are also positive in
this regard. Amnesty International wholeheartedly welcomes the
statement that "We must respond to terrorism by championing
the rule of law, not subordinating it, for it is the cornerstone
of the democratic society. We must uphold our commitments to human
rights and civil liberties at home and abroad."[5]
However, Amnesty International would question
whether these principles are currently reflected in the reality
of some of the policies pursued under CONTEST.
States have an obligation to take measures to
prevent and protect against attacks on civilians; to investigate
such crimes; to bring to justice those responsible in fair proceedings;
and to ensure prompt and adequate reparation to victims. This
is clear in human rights law. However, it is equally incumbent
on governments to ensure that all measures taken to bring people
to justice, as well as all measures to protect people from terrorism,
are consistent with international human rights law and standards.
Due process remains the best way to ensure durable security; it
is also the best way to ensure that the victims of terrorism receive
justice. Miscarriages of justice do nothing but disservice to
the victims of terrorism and undermine the rights to truth and
justice.
At times there has been a tendency to dismiss
criticism of the Government's counter-terrorism policies by questioning
whether critics understand the gravity of the threat. Amnesty
International does not question the Government's assessment of
the severity of the threat posed by terrorism. However, the organisation
does question, and has serious concerns about a number of policies
currently pursued by the Government.
This submission will focus on human rights aspects
of Pursue. While the sub-committee is not focussing on Prevent
in this inquiry (and this strand has recently been reviewed by
the Government), this submission will also make some reference
to aspects of Prevent, particularly where there is potential for
overlap with Pursue.
PURSUE
In its discussion of the "disruption"
element of Pursue, the strategy states: "Prosecution remains
the preferred way of responding to persons involved in terrorist
activity, but other options for taking disruptive action include
deportation on grounds of national security or unacceptable behaviour,
control orders under the Prevention of Terrorism Act 2005, freezing
and seizing financial assets, and proscription of organisations."[6]
Some of the policy options listed as alternatives
to prosecution raise very serious human rights concerns.
Deportation
There is an urgent need for the UK Government
to abandon its efforts to deport terrorism suspects, in conjunction
with various diplomatic assurances, to countries where they face
a real risk of grave human rights violations, including torture
or other ill-treatment. These diplomatic assurances are not only
unenforceable and inherently unreliable; they also undermine the
absolute prohibition against torture.
Amnesty International considers that the UK's
reliance on diplomatic assurances when seeking to expel people
to countries where they would face a real risk of torture or other
ill-treatment violates its obligations under international law.
Diplomatic assurances are only sought from countries
where there is a recognised risk of torture and ill-treatment.
These are, by definition, countries with a record of failing to
respect their binding obligations under international law to prevent
torture and other ill-treatment. There can be no grounds for confidence
that unenforceable bilateral diplomatic understandings will be
respected where binding multilateral treaty obligations have been
repeatedly flouted.
The idea that monitoring mechanisms bolster
the effectiveness of diplomatic assurances is misguided. The safeguards
that assurances provide fall below those in international law;
they lack an enforcement mechanism and do not provide a remedy
in case of a breach. Indeed, diplomatic assurances have proven
to be ineffective.
The Government should reaffirm its commitment
to the absolute obligation under international law not to return
any person to a country where they face a real risk of torture
or ill-treatment. It is extraordinary that the Government, which
has been a strong advocate of the elimination of torture throughout
the world, should now be undermining this work by seeking to circumvent
the principle of non-refoulement.
Control Orders
There is an urgent need to end the use of Control
Orders. The Prevention of Terrorism Act 2005 (PTA) granted the
executive sweeping powers to issue Control Orders against UK and
foreign individuals.
These orders impose restrictions on fundamental
freedoms, which are guaranteed under domestic and international
human rights law (including the right to a fair trial, the right
to liberty and the rights to freedom of assembly, association,
movement and expression).
The system of Control Orders is profoundly unfair
and incompatible with international fair trial rights. This reflects
the reliance on secret material considered in secret court sessions
as well as the low standard of proof required (this latter problem
is compounded by the broad and vague definition of terrorism in
the Terrorism Act 2000 and the broad definition of terrorism-related
activity in the PTA.
Amnesty International has long-standing concerns
over the broad definition of terrorism used in UK domestic law.
As a result of its breadth, the definition of terrorism in the
Terrorism Act 2000 lacks the sufficient legal certainty to satisfy
the requirements of clarity and precision necessary for any criminal
offence to comply with the rule of law and human rights.
The court hearings imposing Control Orders can
be profoundly unfair. They take place under special rules of court
which allow the Secretary of State to rely extensively on secret
evidence. This evidence is considered in secret sessions from
which the subject of the order and his lawyers are excluded, and
can result in a judgment which is kept partially or (in some cases)
entirely secret.
The extent to which the controlled person is
told the allegations against them varies from case to case. There
have been cases where the basis for the Secretary of State's case
has been entirely based on closed material. This means that the
individual is not given the opportunity to see or hear the evidence,
which leaves them unable to effectively challenge it. The system
of Special Advocates is not an effective substitute for a legal
counsel of choice. A Special Advocate cannot provide a proper
defence, as they cannot take instructions from the person they
are supposed to represent once they are made party to the secret
intelligence.
In addition, a particularly low standard of
proof is required for the court to uphold a Control Order. The
court must, in effect, only be satisfied that there are reasonable
grounds for the Secretary of State's belief that the individual
is or has been involved in terrorism-related activity, and reasonable
grounds to consider the restrictions imposed necessary for the
protection of the public. This is not the same as requiring the
Secretary of State to prove—even on the balance of probabilities,
still less beyond reasonable doubt—that the controlled person
has been involved in any terrorism-related activity.
In July 2008 the UN Human Rights Committee expressed
its concerns about the system of Control Orders. The Committee
called on the UK to "ensure that the judicial procedure whereby
the imposition of a control order can be challenged complies with
the principle of equality of arms, which requires access by the
concerned person and the legal counsel of his own choice to the
evidence on which the control order is made", and urged the
UK to "ensure that those subjected to control orders are
promptly charged with a criminal offence."[7]
Amnesty International urges that the control
order regime be abandoned, and that, instead, anyone against whom
there is sufficient admissible evidence that they have committed
a recognizably criminal offence be brought to justice in fair
proceedings before an independent and impartial court.
IMPACT ON
PREVENT: PURSUE AND THE
OPPOSING NARRATIVE
The four strands of CONTEST do not operate in
isolation. Policies put into practice under Pursue, as well as
the other strands, have an impact on efforts to prevent radicalisation.
Clearly there remains much to be learned about radicalisation,
which is a varied and complex process.
Nevertheless, it is clear to Amnesty international
that in addition to the specific concerns expressed above, human
rights failings and inconsistencies have the potential to undermine
efforts in the Prevent strand. This is especially true of efforts
to construct a convincing narrative to oppose the narratives that
fuel radicalisation. Any enduring and successful narrative must
have at its core a strong integrity based on the consistent application
of values, including human rights.
Consistency
International cooperation is a key aspect of
Pursue. The strategy describes this as "working with partners
and allies overseas to strengthen our intelligence effort and
achieve disruption of terrorists outside the UK."[8]
The strategy also sets out some of the assistance the Government
has given to other countries.
There is a need for greater consistency in the
approach to human rights in the UK's international relationships
and partnerships. This is particularly true of the UK's relationships
with security, strategic and trade partners, where there are often
competing interests at stake.
Amnesty International believes that it is critical
that human rights values are fully integrated and consistently
respected in the UK's foreign policy, and not just given rhetorical
support at opportune moments. It is particularly important that
the Government does not baulk at speaking out to "difficult"
countries with which it has numerous interests (for example Saudi
Arabia, Pakistan, China and Israel).
If the UK fails to live up to the human rights
standards it advocates, it risks opening itself to charges of
hypocrisy, playing into the hands of repressive states and provoking
resentment around the world. This is particularly dangerous in
the modern globalised world.
This approach should hold true whether this
entails telling difficult truths to close allies, or pushing unpopular
agendas with international states. There is a time and place for
quiet private diplomacy. However, at times what is required is
robust and forthright public criticism of human rights abuse.
In its relations with states that abuse human rights, the government
should develop a dialogue with specific benchmarks against which
to measure progress on abuses with an agreed timeframe.
Accountability
There are a number of areas in which the Government
has failed to properly investigate allegations of human rights
abuse.
There remains a need for a full, effective and
independent inquiry into the role of UK officials and territory
in rendition, secret detention and enforced disappearance. This
includes in relation to UK residents Bisher al Rawi, Jamil el
Banna and Binyam Mohamed. In this context, Amnesty International
welcomed the Home Secretary's decision to ask the Attorney General
to consider whether there may be any grounds for criminal prosecutions
in relation to the involvement of UK and US agents in the illegal
detention and rendition of Binyam Mohamed. However, there remain
many unanswered questions about the role of the UK overseas territory
of Diego Garcia in the US programme of rendition and secret detention,
including the fate of the two detainees who are known to have
been transferred through the territory.
Amnesty International also has concerns about
the lack of transparency and accountability of the UK intelligence
and security services. This is symbolised by the Intelligence
and Security Committee. This Committee lacks meaningful independence.
If there is to be accountability for violations in which the security
and intelligence services have been involved, and if there is
to be robust scrutiny of their actions in the future, there is
a pressing need to establish a genuinely independent and effective
mechanism to exercise oversight over the activities of these agencies.
CONCLUSION
Any counter-terrorism strategy that does not
have at its heart a genuine and robust commitment to the protection
and promotion of universal human rights will be short-sighted
and counter-productive. Unless governments across the world respond
to the threat of international terrorism in a manner that is fully
grounded in respect for human rights and the rule of law, they
risk undermining the values they seek to protect and defend. Given
the nature of radicalisation, they also risk undermining the very
policies they are pursuing.
There is a need for human rights law and standards
to be more fully and consistently integrated within CONTEST. The
UK's counter-terrorism policies must be firmly anchored in the
rule of law based on justice and due process, and its foreign
policy consistent in its respect for and promotion of human rights.
This is the right thing to do in terms of the values the UK aspires
to represent. It is also essential to any successful Prevent strategy.
In today's globalised and interdependent world,
where what the UK says and does is closely watched internationally,
consistent application of human rights values and standards and
adherence to the rule of law are essential in any successful challenge
to the environment in which radicalisation and extremism flourish.
January 2009
3 "`Mistakes' made over 7/7 reaction", BBC
Online, 26 September 2007. Back
4
"Countering International Terrorism: The United Kingdom's
Strategy", July 2006, Cm 6888, p.11. Back
5
"`War on terror' was wrong", Guardian Comment is Free,
15 January 2009. Back
6
"Countering International Terrorism: The United Kingdom's
Strategy", July 2006, Cm 6888, p.17. Back
7
Concluding Observations of the Human Rights Committee: UK, CCPR/C/GBR/CO/6,
21 July 2008, para. 17. Back
8
"Countering International Terrorism: The United Kingdom's
Strategy', July 2006, Cm 6888, p.2. Back
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