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"(1A) Subject to subsection (1B) below, an appeal may be brought under this section against a decision of the Tribunal only on a point of law.
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(1B) In the case of an appeal under this section against a decision of the Tribunal which determines a question referred to it by the Commission or the Attorney General, the High Court
(a) shall consider afresh the question referred to the Tribunal, and
(b) may take into account evidence which was not available to the Tribunal."
The noble Baroness said: My Lords, we live in a complicated world, morally, ethically and philosophically. Today, I want to set out, very briefly, the legal basis for the protection of a fundamental human right; namely, the right to be free from torture and other cruel, inhuman or degrading treatment or punishment.
The impetus for this debate arises from the awesome dilemma facing any government on how to balance this fundamental right with the responsibility of protecting the security of a nation and its inhabitants. While there is no suggestion that the UK seeks to derogate from its obligations under the UN Convention Against Torture, there is some question how far the Government will act to prevent or condone torture that may occur as a result of political decisions. I refer to the policy of removals of failed asylum seekers to countries where torture is likely, and the doubtful validity of diplomatic assurances of non-torture. I refer also to the potential complicity with the US practice of "rendition"a word that masks the inhuman practice of outsourcing tortureand to the admissibility in the British courts of evidence extracted under torture. I must declare an interest as a former director of, and present consultant to, the Redress Trust, an organisation dedicated to achieving justice for torture survivors.
The prohibition of torture has a special place in that array of international law and treaties that governs human rights more generally: the Convention Against
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Torture; the International Covenant on Civil and Political Rights; the Inter-American Convention to Prevent and Punish Torture; the European Convention on Human Rights and many others. All of them prohibit torture in the strongest terms.
Torture is outlawed also by the four Geneva Conventions of 1949, their two Additional Protocols and by national constitutions throughout the world. Freedom from torture has been declared time and again as a non-derogable right, signalling that, no matter what the circumstances, torture can never be legal. A significant body of jurisprudence arising from the European Court of Human Rights and the UN International Criminal Tribunals for Yugoslavia and Rwanda, among other courts, has allowed this right to evolve into a peremptory norm. The prohibition of torture is placed at the highest level of international law and takes precedence over any conflicting rules of treaty law or customary international law.
The UK is either a signatory to these international instruments or fully supportive of them for good reason: torture as defined in the UN convention aims not only to inflict severe physical and mental pain, but also, above all else, to degrade, depersonalise and dehumanise its victims. In this, it is often successful, and the loss of dignity can affect the survivor and his or her family for many, many years. Some never recover to become fully functional members of society. The policy of torture goes beyond the individual victim. It is of profound concern to the world community because its intended consequences are to damage the will and coherence of whole communities.
Consider the consequences of the appalling abuse Iraqi prisoners have suffered at the hands of USfemale USsoldiers in Abu Ghraib. What will these mens' standing be in their communities, with their families? How or where will the anger engendered by such humiliation be directed? I suggest that the result will be the desire for murderous revenge in the form of terrorism.
Nor is the UK entirely blameless in this context. A number of British soldiers have been convicted in courts martial of mistreating detained Iraqis, and other cases are pending. Torture is a criminal offence under our legislation; I refer to Section 134 of the Criminal Justice Act 1988. However, the Attorney-General has not made use of this Act to underline the seriousness with which these abuses must be dealt. When mistreatment amounts to torture it should be prosecuted as such and not as some other crime which carries a lesser penalty. To do so undermines the gravity of the act and, crucially, does not allow the victims to claim reparation.
The UK is not a safe haven for torturers, as the recent conviction of a former Afghan warlord demonstrates. However, the Government's recent consultations and subsequent signing of the UN convention on state immunity appears contradictory. The convention bans civil claims in human rights cases, thereby precluding a fundamental principle of international law, namely the right to reparation. Other recent actions on the part of the UK
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Government give cause for concern. First, as has been passionately argued in this House, the removal of failed Zimbabwean asylum seekers to Harare, often accompanied by police and handed over to the security authorities is on the face of it an infringement of both the 1951 UN Convention on Refugees as well as the Convention Against Torture. These instruments make it abundantly clear that even the likelihood of torture is sufficient reason to stop these removals. This negates the Government's justification that there is no evidence of returnees being tortured, an assertion in any case which all those involved in Zimbabwean politics vigorously refute.
Present conditions in Zimbabwe, as is extremely well documented, are brutal and torture is routine. Secondly, it has recently been reported that the UK has enabled American aircraft involved in transporting individuals to countries where they are likely to be tortured to use British airspace, landing and refuelling at British military and commercial airports involving over 200 flights. In one case an individual was apprehended in Indonesia by the US authorities and then transported to Cairo via the UK in the absence of any extradition hearing or judicial process.
The precise legal obligation on the part of the UK Government in this context has yet to be fully examined, but in principle assistance in furthering torture is subject to an absolute prohibition. Thirdly, the Government appear determined to maintain the apparent loophole whereby evidence obtained under torture abroad is admissible in Special Immigration Appeals Commission hearings, provided that no UK agents were involved in the torture. If this is now law, I have to ask why the Government are testing the absolute prohibition against torture-tainted evidence, a prohibition that should be unequivocal in a country such as ours.
Given the non-derogable prohibition on torture, the "ticking time-bomb" issue needs to be at least addressed. Should there be an exception in that most agonising possibility? Some would argue yes, that it must be permissible to violate an individual's rights to preserve the rights of the majority. Some have even advocated the use of warrants to regulate the use of torture. Without for the moment considering whether torture is an effective method to extract reliable information, the argument invokes the "defence of necessity" whereby a person is excused from criminal liability for his or her actions because they were deemed necessary to prevent greater harm.
There cannot be a blanket defence of necessity that creates an exception to the absolute prohibition. There are no laws that provide such exceptions and for any state to enact a law would immediately conflict with international law. We also know from the evidence of torture survivors that the results of torture are often inaccurate and certainly unverifiable. We talk with optimism about ending or eliminating terrorism, but how logical is it to expect that brutality and degradation will be an effective instrument? How can we justify freedom from violence by the use of violence?
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It is worrying that we hear far too little about combating terrorism through non-military means. That would include a far greater commitment to intelligence networking across the world requiring in turn greater international co-operation: not only in confronting and eliminating terrorist action but in addressing the underlying causes; strengthening the UN Human Rights Treaty bodies and special procedures; more widespread efforts to freeze assets of those suspected of financing terrorism to end the climate of impunity, among other human rights actions.
Defeating terrorism requires fine intelligence information. That must mean working with those who feel equal repugnance at the violence that has been perpetrated against the innocent and engaging them in the political process. The use of torture or other inhuman and degrading methods against a minority group risks alienating precisely those whom we need most in this struggle. The exercise or condoning of torture is a severe abuse of a fundamental right and will not enhance national security, but eventually erode it.
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