As the prime minister derides the European Court of Human Rights as a ‘small claims court’, it isn’t just the anti-human rights brigade who are worried by its recent judgment.
‘Once again, he has made fools of us’, announced the Telegraph, in response to the Strasbourg court’s ruling that Omar Othman, aka Abu Qatada, the ‘radical Muslim cleric’ described as ‘Osama bin Laden’s ambassador in Europe’ but never charged or tried with a criminal offence in the UK, could not be returned to Jordan where he faced trial on evidence obtained via torture. The court, overruling the House of Lords, said that such a trial would be a flagrant denial of fair trial rights and international law norms, to which Othman could not be returned. In the wake of the judgment, David Cameron told the court to spend more time on serious human rights abuses in eastern Europe, and wants its jurisdiction to deal with claims from countries such as the UK curtailed. But for human rights campaigners, the court’s decision in Othman’s case did not go nearly far enough.
If it hadn’t been for a trial in Jordan (in fact a retrial, on charges he was convicted of in his absence) there would have been no problem for the court in returning Othman to Jordan despite its abysmal human rights record. The fact that torture is endemic in police custody and in prison would not have prevented his deportation, because this torturing state has undertaken to treat Othman and other national security deportees ‘humanely and properly’ under a Memorandum of Understanding reached in 2005. The court held that the UK government is entitled to rely on this diplomatic undertaking as preventing ill-treatment, even though the organisation contracted to monitor deportees’ condition is ill-resourced, inexperienced and mistrusted by established human rights bodies in Jordan, thorough investigation of alleged breaches of the undertaking is in neither party’s interest, and there are no sanctions for breaches. It is hard to avoid the conclusion that the assurance is, as lawyers and human rights groups have pointed out, ‘a fig leaf for torture’.
Whether or not the government appeals the court’s ruling against Othman’s deportation, the judgment is widely seen as an endorsement of the UK government’s ‘deportation with assurances’ programme, which it has pushed since 2005 in the teeth of strong condemnation not just by organisations such as Amnesty International and Human Rights Watch, but also by the UN and Council of Europe. In June 2006 Thomas Hammarberg, human rights commissioner of the Council of Europe – under whose auspices the Court of Human Rights operates – wrote that diplomatic assurances ‘are not credible and [have] also turned out to be ineffective in well-documented cases’. And for Dick Marty, the Swiss senator appointed by the Council of Europe to investigate extraordinary renditions, reliance on diplomatic assurances given by undemocratic states known not to respect human rights is ‘simply cowardly and hypocritical’. In 2005, the Home Office even sought to deport terrorist suspects to Colonel Gaddafi’s Libya, under the terms of an undertaking whose performance was to be monitored by the ‘human rights’ group headed by Saif al-Islam, Gaddafi’s son. Even for the Special Immigration Appeals Commission, this was a step too far and the deportations were halted in April 2007.
The court’s acceptance of Jordan’s no-torture assurances ‘weakens the international prohibition against torture’, according to human rights lawyer Eric Metcalfe. It is hard to avoid the conclusion that this part of the judgment has been influenced by Britain’s constant complaints of excessive interference. The concern now is that the government will move fast to resume the deportations to Jordan and to other torturing states which had been postponed pending Othman’s case in the European Court. Algerians facing ‘national security’ deportation have lodged applications with the Strasbourg court and are expected to argue there that the risk of torture for them is even higher than for Othman, and the ‘assurances’ from the Algerian government even flimsier than those provided by Jordan. (The Algerian government refused to sign a formal undertaking, preferring a simple exchange of diplomatic notes, and refused independent monitoring of deportees’ treatment in the notorious barracks where national security suspects are held.)
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