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Home Archive for category "Torture"

Revising the verdict in Ireland v UK: time for a reality check?

Published on April 6, 2018        Author: 
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There is a general misunderstanding about the revision judgment that was delivered by the European Court of Human Rights (ECtHR) on 20 March 2018.  The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided.  It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case.  This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised.  All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty.

The newspaper headlines that the Court had found that the five techniques did not amount to torture is thus misleading.   The Court has decided not to alter the original judgment’s characterisation of the five techniques.  It has made no finding of its own about torture and it has made this clear.

Apart from the victims’ understandable sense of injustice and bewilderment there is an air of unreality surrounding these proceedings.

Firstly, it is beyond doubt that if the same issue was decided today the five techniques would be held to amount to torture.  The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture. The present Court has expressed the view that an increasingly high standard is required in the protection of human rights and that this “inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.” The decision of the Court in 1978 to characterise the five techniques as only amounting to inhuman and degrading treatment which was strongly criticised at the time by many commentators is arguably one of the reasons for this increasingly high standard. Another is the realisation that torture has not been eradicated and that it can involve many different and sophisticated forms of unlawful treatment, such as water-boarding, and other variants of sensory deprivation techniques. It is a sad consequence of the old Court’s characterisation that it was used by the US government to assert that ‘water-boarding’ did not amount to torture. This was entirely spurious and self-serving since US government lawyers chose to ignore the marked evolution of the concept of torture that had occurred since 1978.

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Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case

Published on April 5, 2018        Author: 
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The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.

The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.

A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice. Read the rest of this entry…

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Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 21, 2018        Author:  and
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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative Read the rest of this entry…

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Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 20, 2018        Author:  and
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On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded. Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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Reflections on the European Committee on the Prevention of Torture’s Report on the UK

Published on April 21, 2017        Author: 
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The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…

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Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

Published on February 21, 2017        Author: 
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On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”. Read the rest of this entry…

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The UK Supreme Court’s Blockbuster Decision in Belhaj

Published on January 18, 2017        Author: 
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The UK Supreme Court has resoundingly rejected the contention that state immunity and/or foreign act of state barred courts from hearing claims of UK complicity in abduction and torture. The judgment in Belhaj & Rahmatullah (No 1) v Straw & Ors [2017] UKSC 3 – just one of three “blockbuster” decisions handed down in yesterday’s bonanza- has finally cleared the way for these important claims to be tried.

The facts of the cases are well known (and are set out in more detail in this post on the Court of Appeal’s judgment). In short, Abdul-Hakim Belhaj and his pregnant wife allege that UK security services cooperated with US and Libyan authorities in their unlawful rendition in 2004 and their subsequent detention and torture. Mr Rahmatullah, a Pakistani national, was detained by UK forces in Iraq, also in 2004, before being transferred to the custody of US forces, at whose hands he was allegedly tortured. Mr Belhaj was detained by the Gaddafi regime for six years; Mr Rahmatullah was held at Bagram air base for ten years.

There are many striking features of the Supreme Court’s judgment. These include Lord Sumption’s careful discussion of jus cogens; the surprisingly short shrift given to the government’s argument based on state immunity; and the strident dismissal of the argument that UK courts should refrain from adjudicating on foreign acts of state where doing so would embarrass the UK in its international relations (per Lord Mance at [11](iv)(d)]; Lord Neuberger at [134]; and Lord Sumption at [241]). In these brief initial comments, I focus on the doctrine of foreign act of state, which was characterised differently by each of Lord Mance, Lord Sumption and Lord Neuberger (notwithstanding that they agreed in the result).

To the extent that the opinions differ on foreign act of state, it is Lord Neuberger’s view that binds, since he attracted Lord Wilson, Lady Hale and Lord Clarke to his side. So, a majority, but by a hair’s breadth: in their brief, almost parenthetical opinion, Lady Hale and Lord Clarke described Lord Mance and Lord Neuberger as having reached “the same conclusion… for essentially the same reasons”. That word, “essentially”, is capable of masking quite a lot, as the discussion which follows will show. Read the rest of this entry…

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Filed under: State Immunity, Torture
 

The Supremacy of International Law? – Part Two

Published on June 3, 2016        Author: 
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Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

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The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

Published on December 22, 2015        Author: 
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In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

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