The case of Abu Qatada is the first legal challenge to the United Kingdoms policy of deporting persons it labels national security threats to places where they are at risk of torture, based on a memorandum of understanding (MOU). The memorandums, which amount to diplomatic assurances by another name, contain promises from the receiving government that any person returned to its custody will not be tortured or ill-treated, and provide a post-return monitoring mechanism that purports to provide an additional safeguard. The UK has brokered such agreements with Jordan, Libya and Lebanon.41
The UK government is seeking to return Abu Qatada, a terrorism suspect and national of Jordan, to his home country based on an MOU agreed by the UK and Jordan in August 2005. Abu Qatada has lived in the UK since 1993 and was granted refugee status in June 1994. Jordans State Security Court sentenced him to 15 years in prison in absentia in 2000 for his alleged involvement in a bomb plot.
In the aftermath of September 11, 2001, the UK enacted an anti-terrorism law allowing foreign terrorism suspects who could not be deported because of the risk of torture upon return to be detained indefinitely without charge or trial. Abu Qatada was detained in Belmarsh prison under that law from 2002 until March 2005. Following the December 2004 ruling by the UK House of Lords Judicial Committee that indefinite detention was unlawful,42 Qatada was released under a control order that regulated his place of residence and movements, limited visits with relatives and friends, and restricted access to phones and computers.43 In August 2005 Qatada was detained again pending his deportation to Jordan. The UK government claims that the existence of the MOU makes Qatadas deportation to Jordan possible, and therefore makes his detention under immigration powers consistent with the right to liberty under article 5 of the European Convention on Human Rights.44
In May 2006 Qatada challenged his pending deportation and the reliability of Jordanian assurances against torture before the Special Immigration Appeals Commission (SIAC),which considers appeals in cases where the secretary of state for the Home Department (home secretary) has exercised statutory powers to deport or exclude someone from the UK on national security grounds or for other public interest reasons. Qatada argued that the real risk of torture he faced if returned to Jordan was not mitigated by Jordans assurances. Human Rights Watch submitted an expert statement arguing that the diplomatic assurances contained in the UK-Jordan MOU do not provide an effective safeguard against torture.45
A decision is expected in early 2007.46
41 UK: Torture a Risk in Libya Deportation Accord: International Law Prohibits Deporting Individuals to Countries That Practice Torture, Human Rights Watch news release, October 18, 2005, http://hrw.org/english/docs/2005/10/18/libya11890.htm; UK/Jordan: Torture Risk Makes Deportations Illegal: Agreement Bad Model for Region, Human Rights Watch news release, August 16, 2005, http://hrw.org/english/docs/2005/08/16/jordan11628.htm; Letter from Human Rights Watch and Liberty to Prime Minister Tony Blair, Empty Promises Cant Protect People from Torture, June 23, 2005, http://hrw.org/english/docs/2005/06/23/uk11219.htm.
42 UK: Law Lords Rule Indefinite Detention Breaches Human Rights, Human Rights Watch news release, December 16, 2004, http://hrw.org/english/docs/2004/12/16/uk9890.htm.
43 In March 2005 the Prevention of Terrorism Act 2005 (PTA) came into force. A direct response to the ruling that indefinite detention was unlawful, the PTA permits the home secretary to impose control orders on people suspected of involvement in terrorism or terrorism-related activities. Control orders place restrictions on a persons liberty for the purpose of protecting members of the public from a risk of terrorism. See Human Rights Watch, Commentary on Prevention of Terrorism Bill 2005, March 1, 2005, http://hrw.org/backgrounder/eca/uk0305/index.htm.
44 Article 5 of the European Convention on Human Rights reads: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . .(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
45 United Kingdom: Human Rights Watch Statement in Omar Othman (Abu Qatada) Case, May 2006, http://www.hrw.org/backgrounder/eca/ecaqna1106/witnessstatementjuliahall.pdf.
46 A challenge to the UK-Libya MOU commenced in the SIAC in October 2006.