Case Has Global Implications for Torture Ban
October 14, 2005
The U.K. government’s attack on the torture ban is deeply troubling. It threatens more than half of a century of efforts—including by Britain itself—to eradicate torture worldwide.
Holly Cartner Executive Director Europe and Central Asia Division

A ruling by Britain’s highest court on the use of torture evidence is likely to have profound implications for the worldwide ban on torture, Human Rights Watch said today.

Britain’s highest court will convene on Monday, October 17 to consider whether torture evidence obtained from third countries is permitted in domestic British law. The House of Lords Judicial Committee (commonly known as “the law lords”) will hear an appeal against an August 2004 majority decision by the Court of Appeal that the U.K. government was entitled to rely on torture evidence in special terrorism cases, provided that the U.K. “neither procured nor connived at” the torture. The use of evidence obtained through torture or other ill-treatment is prohibited by international law.

“When it comes to torture, the rules of the game must not change.” said Holly Cartner, Europe and Central Asia director at Human Rights Watch, “You can’t accept torture evidence without condoning torture.”

Human Rights Watch is part of a coalition of fourteen human rights and anti-torture organizations intervening in the House of Lords case.

Under the Convention against Torture, to which 140 countries including the U.K. are party, evidence obtained under torture is inadmissible in “any proceedings” before a court. The rule is also part of customary international law binding on all states. But a two-to-one majority in the Court of Appeal held that because the convention is not part of British law, the courts did not have to exclude such evidence.

The U.N. Committee against Torture criticized the British government’s refusal to disavow the use of torture evidence at its November 2004 review of the U.K.’s compliance with the torture convention.

The British government’s assertion that it is entitled to rely on evidence which third countries have obtained through torture is part of its growing efforts to erode the torture prohibition. The government is seeking to bypass the prohibition against returning people to torture by obtaining promises of humane treatment to allow it to deport terrorism suspects. Despite clear evidence that such promises do not provide an effective safeguard against ill-treatment, it has already concluded a memorandum of understanding with Jordan, and is negotiating similar agreements with Algeria, Libya, Egypt, and other countries with poor records on torture. The government is also seeking to redefine the scope of the ban on returns to torture, through political pressure on the British courts, and an intervention in a Dutch case in the European Court of Human Rights, arguing that courts should balance the risk of torture against national security concerns.

“The U.K. government’s attack on the torture ban is deeply troubling,” said Cartner. “It threatens more than half of a century of efforts—including by Britain itself—to eradicate torture worldwide.”

The case, A and others, is being brought by ten foreign nationals previously certified under the Anti-Terrorism Crime and Security Act 2001 as suspected international terrorists and subject to indefinite detention without trial. The majority of the men are Algerian. In December 2004, the Law Lords ruled that indefinite detention was unlawful. The present appeal arises from a July 2002 decision by the Special Immigration Appeals Commission that it was entitled to consider evidence that may have been obtained under torture in determining the men’s appeals against certification.

Two of the men have left the U.K. and two had their certificates revoked prior to December 2004. Six of the men were subject to control orders under the Prevention of Terrorism Act 2005 following their release from indefinite detention in March 2005, but an unspecified number of the six were subsequently detained on immigration charges pending their deportation on national security grounds.

Members of the coalition intervening in the case are: The AIRE Centre, Amnesty International, the Association for the Prevention of Torture, British Irish Rights Watch, The Committee on the Administration of Justice, Doctors for Human Rights, Human Rights Watch, The International Federation of Human Rights, INTERIGHTS, The Law Society of England and Wales, Liberty, the Medical Foundation for the Care of Victims of Torture, REDRESS, and the World Organisation Against Torture.