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United Kingdom

In response to questions from the U.K. Parliamentary Foreign Affairs Committee on December 13, 2005, about renditions and the use of torture in counter-terrorism operations, Foreign Affairs Secretary Jack Straw commented that while one problem lies with the unreliability of evidence extracted under torture:

The other problem about torture is that those who commit the torture deny it to themselves as much as they deny it to other people, so to track it is very difficult, but we are alive to those countries where we think malpractice of all kinds is used and we seek to deal with it…if you go through the list of countries where we and America and other leading human rights NGOs believe that the mistreatment of suspects takes place, I do not think you will find a single one of those countries which says that it does take place.²³

Despite this admission that abusive states deny their torture practices, Straw has defended the memoranda of understanding (MoUs) negotiated by the U.K. government with the governments of Lebanon, Jordan, and Libya, which the U.K. government details as well in its response to the DH-S-TER.²⁴  It is difficult to reconcile the Foreign Secretary’s admission about torture denial with the U.K. government’s assertion that governments with poor records on torture can be trusted to abide by the terms of the MoUs.

The case examples on Libya provided by the U.K. in its response to the DH-S-TER reinforce those concerns. In order to justify the proposed deportation of failed asylum-seekers and convicted criminals to Libya, the U.K. government argued that such persons have no fear of reprisals upon return to Libya because the Libyan security service reserves torture and other ill-treatment exclusively for those suspected of political activities against the Libyan regime or membership in an Islamist group.

In the 2003 case of A v. Secretary of State for the Home Department, a domestic immigration court, the Immigration Appeals Tribunal (IAT), determined that a Libyan national convicted of sex offenses in the U.K. could be returned to Libya based on assurances from well-placed officials in the Libyan government. ²⁵ That return could be effected, the U.K. government argued, because the deportee did not have a security profile. The IAT concluded that the background evidence also indicated “an increased focus by the security agencies on specific opposition groups. [A] is not a member of any Islamist group, which groups appear to be particularly targeted, nor is he a member of any opposition group.”²⁶

The same cannot be said for the Libyans currently detained by the U.K. pending deportation on the grounds of national security, and whose removal the MoU is designed to facilitate. The five Libyan nationals detained by British authorities on October 3, 2005, for example, were detained under immigration law because their presence in Britain allegedly threatens national security or is otherwise “not conducive to the public good.” The five men are reportedly involved in the Libyan Islamic Fighting Group, an armed opposition group that has been fighting to overthrow the Libyan leader Muammar al-Qaddafi since the mid-1990s. Reportedly, several of the five individuals had been recognized as refugees in the United Kingdom.²⁷

In the 2004 European Court of Human Rights admissibility decision of F. v. United Kingdom, to which the U.K. reply to the DH-S-TER refers, the Court adopted the U.K. government’s argument in A. and ruled inadmissible F’s claim for protection under Article 3 of the ECHR. But the Court’s reasoning again contrasted the situation of the applicant with those who are perceived to be involved in political opposition to the regime.²⁸

It is important to note that research by Human Rights Watch and the U.S. State Department human rights report indicate that torture and ill-treatment in Libya are not confined to those suspected of political or opposition activities.²⁹ Thus, we would disagree that failed asylum seekers and criminal deportees can safely be sent back to Libya based on diplomatic assurances.

However, it is crucial to note that in the context of the DH-S-TER reflection, states were specifically asked to prioritize examples of state practice of reliance upon diplomatic assurances in the context of the “fight against terrorism.”  It is therefore disingenuous for the U.K. government to use the cases of failed Libyan asylum seekers to justify its return practices, especially since the findings of the IAT and the European Court of Human Rights in relation to risk are limited to persons with no national security or opposition profile. 

The example of Libya also illustrates a number of the serious difficulties with diplomatic assurances as a safeguard against torture. The U.K. government points to the mechanism allowing for post-return monitoring by an independent organization as a key element to ensure that promises of humane treatment will be respected upon return. But Libya lacks any independent civil society organization to carry out such a role.

Instead, the U.K. government has approached the Qadhafi Foundation for Development (formally known as the Qadhafi International Foundation for Charity Association), an organization run by Saif al-Islam al-Qadhafi, a son of the Libyan leader Muammar al-Qadhafi.

While the Foundation is widely perceived to be genuinely interested in human rights reform in Libya, it cannot be considered to be an independent organization. Moreover, the Foundation appears to suffer from the same denial about torture highlighted by the Foreign Secretary in his evidence to the Foreign Affairs Committee.

When Human Rights Watch publicly raised concerns in October 2005 about the risk of returns to torture under the MoU, the Foundation responded by denying that torture takes place in Libya :

The Human Rights Watch organization has published a report on the human rights situation in Libya in which the organization mentions non-existing cases of torture. At the time when it refutes this allegation, Gaddafi International Foundation for Charity Associations stresses the following:

1. Various mass media have misinterpreted the report issued by HRW due to fear from repeating what has happened in the past concerning issues of torture.

2. What has been said about the existence of torture in Libyan prisons is untrue and can never happen because of the existence of an agreement between Gaddafi International Foundation for Charity Associations and Prison Authorities in Libya. This agreement allows surprise visits by local and international human rights organizations to all prisons and rehabilitation centres in the country.

3. Provisions of the agreements signed with many countries on the exchange of convicts guarantee protection of rights and prohibit all forms of torture.³⁰

It remains unclear how the U.K. government could rely on the Foundation to monitor the treatment of suspects returned from the U.K. to Libya when the Foundation does not even acknowledge that torture and ill-treatment takes place.