Appealing against torture: Deportation, the UK and human rights

Amid the media furore about the deportation of “radical preacher” Abu Qatada to Jordan last month, an important story was overlooked. In the aftermath of Qatada’s departure, Home Secretary Theresa May spoke not of the nature of terror threats themselves but of the need to remove “the many layers of appeal” that check her ability to deport individuals. “The problems caused by the [UK] Human Rights Act,” she told the commons, “and by the European Court in Strasbourg, remain… The Human Rights Act must be scrapped.” Her government, were it to gain a majority in the next election, is not opposed to withdrawing from the European Convention itself.

A largely forgotten story about the Abu Qatada case concerns the UK government’s impatience both with human rights protection for criminal suspects under UK law and the international ban on torture. These long-enshrined legal safeguards have interrupted the illegal excesses of the UK executive’s “war on terror”, and now the very channels that uphold these safeguards are in jeopardy.

Under the banner of post-9/11 national security, the government has reserved particular mistreatment for those certified “international suspected terrorists”. Its first action, in 2001, was to pass legislation allowing for such suspects to be indefinitely detained. This practice continued until 2004, when the UK’s own highest judges ruled that indefinite detention was illegal – and more precisely, “the stuff of nightmares“. Since 2005, the UK government has concentrated on trying to deport foreign “terror suspects”.

The government’s attempts to deport foreign terror suspects are bound to end in failure, however, since there is an absolute prohibition on sending someone to a country where he or she will be at risk of torture. As Article 3 of the UN Torture Convention puts it: “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing he could be in danger of being subjected to torture”. This is an uninfringeable protection and no appeal to “national security” can make it permissible.

Rather than respecting this international ban on torture, the UK has tried to rely on diplomatic “assurances” from the receiving state, whatever their human rights record, that it won’t torture the deported suspect. Of course, the UK must protect itself from foreign nationals it believes to be a threat. But the government rationale thus far has been to try to move foreign terror suspects “far away from Britain”, and in doing so circumvent constitutional protections and sacrifice the opportunity to ascertain guilt by trial and ensure custody in the UK.

A Freedom of Information Request submitted by journalist Romil Patel establishes that Labour and coalition governments have tried to deport 37 suspects since 2005. However only 10 of these have been successfully deported, the most visible case (that of Abu Qatada) taking 12 years to resolve. None of these 10 deportees pursued his full rights of appeal; all of them left voluntarily. Much has been made of the fact that Qatada received £865,000 ($1.35m) of public money in legal aid. The reason the figure is so high is because a dozen senior British judges ruled in his favour that the UK’s reliance on diplomatic assurances was illegal, thus extending his appeal process.

The original decision to rely on diplomatic assurances (the UK began its Deportation With Assurances (DWA) policy in 2005) flew in the face of international human rights judgments on the subject, and therefore the government must have known its attempts to deport suspects under this policy would meet with lengthy and costly appeal procedures.

As early as 1993 the European Court of Human Rights had blocked the UK’s attempt to deport terror-suspect Karamjit Singh Chahal to India, despite assurances that he would not face torture or ill treatment. The UK’s own Parliamentary Joint Committee on Human Rights, in a May 2006 report, spoke of “grave concerns that the Government’s policy of reliance on diplomatic assurances could place deported individuals at real risk of torture or inhuman and degrading treatment, without any reliable means of redress”. With these judgements in mind, the very attempt to formalise diplomatic assurances into UK policy is remiss, and unthinkable outside the context of the post-9/11 “war on terror”.

The shift in UK policy from indefinite detention to diplomatic assurances is in fact no shift at all, but a move from one violation of international law to another. The conclusion of the Abu Qatada case last month shows a history of resistance from the courts against the government’s policy, but at the same time reveals how critical the situation has become.

The treatment of foreign terror suspects

Since 2005, the government has pursued a different policy designed, finally, to deal with “international suspected terrorists”. If it could not detain them indefinitely, or deport them in the usual manner, it would obtain diplomatic assurances (a MOU, “memorandum of understanding”) from the state in question that the suspect would not be subject to torture or ill treatment.

The very need for diplomatic assurances confirms that the receiving state has a substantial, existing record of human rights violations. The states already and likely to be petitioned for such memoranda (Afghanistan, Algeria, Egypt, Ethiopia, Jordon, Lebanon, Libya, Morocco, Saudi Arabia, Syria, and Yemen) are already parties to the United Nations Convention against Torture and have therefore already committed not to resort to torture under any circumstances.

Diplomatic assurances therefore do not provide any additional protection to the deportees. No state will admit that it practices torture. In the notorious case of Ahmed Agiza, an Egyptian national deported from Sweden to Egypt in December 2001, such assurances were responsible for his torture in a Cairo prison.

Whether diplomatic assurances are oral or committed to detailed writing and provision, they are brokered at a diplomatic level and have no binding force in law. If the assurances are breached, the deporting government is left without a mechanism to hold the receiving government legally accountable.  In other words, diplomatic assurances are inherently unreliable and unenforceable.

The government admits these criticisms, but suggests that bilateral agreements “at the highest level” can be trusted, together with post-return monitoring and access to the detainee. This is despite the fact that such monitoring is fallible (local organisations tasked with monitoring can be coerced or restricted by a regime and, more worryingly, torture can be hidden from view or detected only after the fact).

From the UN Human Rights Committee to the Council of Europe Commissioner for Human Rights – and from advocacy groups such as Liberty to Human Rights Watch and Amnesty International – diplomatic assurances have been unequivocally condemned. The UN Special Rapporteur Against Torture calls them “utterly meaningless“, reiterating that “the prohibition to transfer a person to a jurisdiction where he or she may be tortured is absolute in international law”.

UK Supreme Court justices (formerly known as law lords) have a poor record in allowing the use of assurances. Legal decisions concerning national security cases are always subject to political pressure, and rulings on the use of assurances are particularly sensitive to politics. The UK government, most prominently among European governments, has invoked national security concerns in order to cow its highest judges into sacrificing certain legal safeguards. It has also succeeded in deflecting judges’ attention away from the likelihood that assurances will lead to a violation of Article 3, towards the view that assurances are for deporting governments themselves to assess, in terms of the strength of the bilateral relationship in question and the current political situation in the receiving state.

From indefinite detention to deportation

The case of Abu Qatada reveals the issues at their clearest. Theresa May is claiming victory in deporting Abu Qatada last month, but this is surely Pyrrhic given the length of his appeal process and legal judgements in his favour.

Qatada came to Britain in 1993 requesting asylum, alleging that he had been detained and tortured by the Jordanian intelligence services. He was recognised as a refugee in 1994 and granted leave to remain in the UK for an initial period of four years. In 1998 he applied for indefinite leave to remain in the UK. Qatada was arrested and held indefinitely in 2002 (under Part 4 of the 2001 Anti-Terrorism Crime and Security Act), and had therefore already seen one legal appeal successfully upheld (in the landmark Belmarsh judgement) when his deportation eventually reached appeal stage in 2008.

Two courts – the UK Court of Appeal and the European Court of Human Rights – ruled against Qatada’s deportation, though the House of Lords allowed it.

The Strasbourg Court, when it heard the case, delivered what ought to be the final blow to the use of assurances. In direct opposition to the House of Lords ruling, it stated (in paragraph 187) that assurances alone are never enough to justify deportation to a state such as Jordon; they are merely a “relevant factor” that does not in itself “ensure adequate protection”.

However, in what was likely an acknowledgement of the enormous political pressure from the UK to acquiesce in a sensitive case, the Court was ambivalent in its judgment of assurances. It accepted that assurances might in a particular bilateral arrangement be sufficient to protect deportees, but stressed that its acceptance of Jordanian assurances with respect to Qatada was exceptional and not a general principle. This was a remarkable assessment of assurances given that in the 2008 case of Tunisian terror-suspect, Nassim Saadi, the Court had cast severe doubt on the reliability of assurances “in their practical application”. In the end the Court blocked Qatada’s deportation on the grounds that evidence likely obtained by the torture of his co-defendants would deny him the right to a fair trial.

Eight days after the Court blocked the deportation, David Cameron vented some of his fury in an address to the Council of Europe: “In Britain we have gone through all reasonable national processes… including painstaking international agreements about how they should be treated… and scrutiny by our own courts… and yet we are still unable to deport them.” In order to resolve Qatada’s case, the British government secured a binding bilateral treaty with the Jordanian government, meaning that in effect diplomatic assurances were abandoned in favour of something more enforceable.

The UK has now no doubt secured an agreement sufficient to protect Qatada, but this has been an exceptional and extremely lengthy (and economically costly) case. Qatada’s eventual protection was thanks not to the UK government but to the many dissenting British and European justices who ensured Qatada’s right to a fair trial was taken seriously. The political wrangling over necessary enhancements to Jordanian assurances masked a more uncomfortable truth – that the government was willing to accept torture in the name of national security. In the pending, lesser-known cases of deportation, the concerns surrounding the use of assurances remain, as does the pressure on the deportees to leave voluntarily.

The government refuses to realise the enormity of its policies however. By rubbishing international justice in favour of its own “reasonable national processes”; by pretending that assurances are an effective protection against torture; and by threatening judges both domestically and internationally with overhaul of appeal procedures and withdrawal from the European Convention, the government continues to be impatient towards long-enshrined human rights protections.

Dr Ian Patel works in the law department at King’s College London. He specialises in criminal justice, criminal law, and international human rights. He is a fellow at the International State Crime Initiative.

Sajid Suleman is currently a tutor and researcher in human rights law. He holds a Master’s degree in comparative law from the International Islamic University of Malaysia, where he was also a tutor in public international law.