Strasbourg has produced a ruling that both weakens the international prohibition against torture while doubtless provoking fresh outrage from the tabloids
Would you believe the promise of a torturer not to torture someone? Unless you were an especially trusting person, probably not. In recent years, however, the UK government has struck a series of deals with countries known for torturing their citizens – including Algeria, Jordan and Libya under Muammar Gaddafi – as part of its efforts to deport suspected foreign terrorists.
The background to these murky deals is, of course, the prohibition against torture under both the European Convention on Human Rights and the UN Convention against Torture. In the 1996 case of Chahal, involving the UK's attempt to deport a Sikh activist to India, the European Court of Human Rights ruled that the convention did not just prohibit the UK torturing a suspect, but also the UK sending a suspect to any country where they faced a real risk of torture. In that case, the Indian government gave the home secretary an assurance that Chahal would have 'no reason to expect to suffer mistreatment of any kind', but the court was unconvinced: no doubt the Indian government was sincere, it ruled, but it had a poor record of being able to control its security forces in the Punjab and elsewhere.
The UK government's knock-back in the Chahal case did not stop it trying, however. Following an unsuccessful attempt to negotiate assurances with the Mubarak regime for the return of four suspects to Egypt in 1999, the British government began a fresh round of negotiations with various Middle Eastern countries following the Belmarsh judgment in December 2004. Less than five weeks after the 7/7 bombings, the UK government struck its first deal: a Memorandum of Understanding with Jordan ('MoU').
Jordan is, of course, well-known for the use of torture. The most recent report by the US State Department on Jordan refers at length to 'incidences of torture and widespread mistreatment in police and security detention'. Particularly notorious is the Jordanian GID, in whose custody Abu Qatada would be most likely end up if returned. In its judgment this morning, Strasbourg accepted the conclusion of the UN's Committee Against Torture 2010 report that torture in Jordan was 'widespread and routine'. The court itself concluded that 'torture is perpetrated systematically by the General Intelligence Directorate'.
As purported safeguards against torture go, however, the MoU with Jordan is a particularly feckless example. For a start, the international prohibition against torture is nowhere mentioned. In fact, the word 'torture' does not appear anywhere, nor even the preferred diplomatic euphemism, 'ill-treatment'. As the late Lord Bingham wryly noted in 2008, 'a country that promises not to torture anybody we have detained, is most unlikely to admit they ever have tortured anybody'. A promise not to torture, he said, was 'like an alcoholic saying, I'm a reformed alcoholic without ever admitting their alcoholism'. Instead, the MoU contains simply a bland promise to treat detainees 'in a humane and proper manner'. The agreement does allow for 'independent monitoring' – in the case of Jordan a small and hapless local NGO, but there is no kind of enforcement mechanism, or sanctions in the event of breach. You would have more rights under a TV rental contract than you would under the Jordanian MoU. Still, it compares favourably with the MoU that the British government struck with Gaddafi's regime: the 'independent monitor' under the Libyan agreement was the Gaddafi Foundation run by that well-known humanitarian, Saif al-Islam.
Regrettably, Strasbourg today accepted the Foreign Office's line that the Jordanian officials who negotiated the deal were 'men of honour', and that the agreement could therefore be trusted despite the obvious risk of torture in Jordan's prisons. Instead, the court ruled that Abu Qatada cannot be deported because his trial in Jordan would involve the use of evidence obtained by torture. In doing so, it has managed the remarkable feat of producing a ruling that both weakens the international prohibition against torture while at the same time is certain to provoke fresh outrage from government ministers and tabloids. The UK government will undoubtedly seek a referral to the Grand Chamber in order to reverse the ruling, but it will be an uphill struggle to argue against the court's conclusions about the unfairness of the proceedings in Jordan.
In the wake of today's judgment, we are certain to hear fresh calls for the UK to withdraw from
the convention and the establishment of a British bill of rights in its place. The government is also likely to use the prospect of playing host to Abu Qatada for several more years as further grounds to strengthen the use of closed proceedings and secret evidence in British courts. All of this would be utterly misguided.
First, there is nothing to be gained in weakening the Human Rights Act to make it easier to deport foreign suspects: after all, the worst terrorist attack in British history – the 7/7 bombings - were carried out not by some foreign suspect but by four British men, the kind of terrorists who could never be deported. Nor is there anything to be proud of in the idea of a British bill of rights that is weaker than other international human rights standards.
Secondly, if it were true that Abu Qatada is spending his time in Britain plotting acts of terrorism, then he is committing some of the most serious criminal offences imaginable. The responsible thing to do, therefore, would be to prosecute him here in open court, not ship him off to some foreign dungeon to be tortured following an unfair trial. Indeed, if he is half as dangerous as the government claims he is, it would be foolish to rely on the stability of a Middle Eastern monarchy to keep him from engaging in terrorism. Thirdly, there is nothing about the Abu Qatada case that strengthens the argument for more secret evidence in UK courts: indeed, as this morning's judgment shows, there is already more than enough secrecy in cases before SIAC.
Instead, if the government is serious about countering the threat posed by international terrorism, then it needs a better policy than striking shabby deals with the likes of Saif al-Islam. Among other things, it means prosecuting suspected terrorists in open court, using the intercept evidence that other western countries have been using for decades. And it means the Foreign Office dealing with those in the Middle East and North Africa who are on the side of democracy and human rights, not sitting down to tea with torturers.