In the 2006 annual human rights report, the Foreign Office boasts: The UK is one of the most active countries in the world on torture, speaking out clearly on torture prevention, advocating strong international machinery and developing practical tools to combat torture in all its forms.9 Britain has indeed devoted large sums of money and considerable efforts to confronting torture worldwide. The government has funded international anti-torture projects, and paid for publications like The Torture Reporting Handbooka practical guide to identifying, documenting and reporting incidents of torture for doctors, lawyers and human rights activists.10 The UK government paid for the Handbook to be translated into seven languages, including Russian, Arabic and Chinese.
The UK was also one of the first states to ratify the Optional Protocol to the Convention against Torture in December 2003. The protocol, which entered into force on June 22, 2006, creates an international system to monitor places of detention worldwide, and a parallel domestic monitoring system in each country that ratifies it. Its purpose is to reduce incidents of torture and ill-treatment in detention. The British government has been active in lobbying other governments to ratify the protocol.
All this deserves praise. The British government continues to declareas does the Bush administrationthat torture is one of the worst human rights abuses. At the same time, however, the British government has severely undermined its own work by chipping away at the international torture ban. It has even begun a direct assault on existing jurisprudence. Both in rhetoric and through their actions, government ministersdespite their increasingly implausible insistence that they remain opposed to tortureshow that they believe the international ban on torture to be outdated. The danger of terrorism, it is suggested, trumps everything elseincluding the rules against torture.
Human rights and security: the false dichotomy
There is a growing sense that the British government considers that the framework of human rights law in general, and the absolute nature of the torture ban in particular, are no longer up to the task. The government insists that, in the words of Prime Minister Tony Blair, the rules of the game are changing.11 For him and other government ministers, it seems that the international torture banwhich includes a prohibition on sending people back to the risk of tortureis just one more variable in the mix.
In September 2005, Charles Clarke, then home secretary, chose a speech to the European Parliament in Strasbourg to argue that the torture ban, and the European Convention on Human Rights, were incapable of meeting the challenge from terrorism, because circumstances today are very different from when the treaty was drafted.12
Terry Davis, secretary-general of the Council of Europe and a former Labour member of the British parliament, pointed out that the alleged contrast was misleading:
Davis is right: the choice between fundamental human rights and national security is a false dichotomy. Under UN Security Council Resolution 1456, which Britain voted for in 2003,
Human rights law is sufficiently flexible as to allow governments to respond to security threats without tearing up the rules. The European Convention and UN Covenant on Civil and Political Rights both allow certain rights, including freedom of expression, to be subject to some limitation on the grounds of national security and public order. And some human rights can be partially suspended in time of war and national emergency threatening the life of the nation. But torture is prohibited absolutely at all times and under all circumstances.
The words and actions of Prime Minister Tony Blair and his current home secretary, John Reid, suggest that they wish to abandon the clear and binding commitments that Britain has signed up for. The prime minister insists that, because of the terror threat, traditional civil liberty arguments are not so much wrong, as just made for another age.15 In a key speech on security in August 2006, Reid quoted that assessment by the prime minister, and referred contemptuously to a key European Court of Human Rights judgment, Chahal v. UK, which reinforces the absolute nature of the international torture ban, including the ban on return to the risk of torture (see below):
Reid sees an explicit trade-off between the torture ban, on the one hand, and keeping Britain safe, on the other.
Beyond the ignorance of the historical circumstances in which human rights law was developed, and of the inherent balance built into that system, the governments argument is also based on a fundamentally false premisethat long-established values have to be set aside because no alternative exists. This could not be further from the truth.
Those who plot or carry out mass murder are guilty of some of the most serious crimes imaginable. They should be prosecuted to the fullest extent of the law, in accordance with international fair trial standards.
The advantage of relying on policing and prosecutionrather than weakening the rules on tortureas a means of countering terrorism, is that they uphold and reaffirm the rule of law and fundamental human rights, rather than weakening them.
The government argues that because the authorities sometimes have to act preemptively to prevent terrorism, there may be insufficient evidence to secure a conviction. But prosecutors have a range of options open to them, even where no act of terrorism has yet been carried out, including pressing charges of conspiracy, aiding and abetting, criminal attempt, and (following the 2006 Terrorism Act) acts preparatory to terrorism.
The government has also argued that the rules of evidence and concerns about disclosing the sources and methods of intelligence gathering preclude it from relying on evidence that could otherwise found prosecutions. There is no shortage of ideas about ways in which such evidence can be managed without compromising fair trial standards. A number of parliamentary committees have produced extensive recommendations, based on evaluations of the practices of other countries and consultations with expert witnesses.17 But the government has done little to address the obstacles that are said to exist.
The ban on using intercept evidence in court provides a useful illustration. The United Kingdom and Ireland are the only two western countries with total bans on such evidence, gathered through judicially authorized phonetaps and other forms of intercept. There is a broad consensusincluding Britains most senior police officer and within Parliamentthat the ban is a disproportionate response to a genuine concern over disclosure of intelligence sources or methods, and that removal of the ban would facilitate prosecution of terrorism suspects.18 Yet the British government has done nothing to make such evidence admissible in court, despite repeated recommendations dating back to 1996.19
Where the authorities suspect persons of involvement in terrorism but there is insufficient evidence of any criminal conduct, the appropriate response is monitoring and surveillance, subject to appropriate judicial safeguards.
Successfully policing and prosecuting terrorism requires public cooperation, and in particular, tip-offssuch as a neighbor reporting unusual activity or a young man or woman reporting an approach by a terrorist recruiter or an overheard conversation. Often, it is the information that comes through such tips, rather the interrogation of suspects, that proves the decisive factor in cracking a case.
As one former U.S. intelligence officer explains:
The same is true of traditional law enforcement. According to David Bayley, a leading criminologist:
Policing and prosecution as effective means of countering terrorism while upholding the rule of law depend on community cooperation and a willingness to pursue prosecutions, even where other meanssuch as deporting terror suspects to places where they are at risk of torturemay appear easier and superficially more attractive.
The abandonment by powerful governments of international rulesas we have repeatedly seen in the past few yearsgives succor to those who believe that they, too, need not be bound by the universal rules of humanity.
United Nations Secretary-General Kofi Annan argues that greater respect for human rights, along with democracy and social justice, will, in the long term, be the most effective prophylactic against terror.22 The UK all-party parliamentary joint human rights committee points out that derogation from international obligations has a corrosive effect.23
The Preventing Extremism Together working groups established by the British government following the July 7 attacks reached a similar conclusion. The working groups, which included many prominent British Muslim leaders, issued their joint report in November 2005. The working group on community security expressed
The report recommends: The U.K. must lead on and not unilaterally derogate from international principles and standards of human rights.
Respecting international law, including the absolute prohibition on torture and sending people back to the risk of torture, does not provide an instant panacea for terrorism. But, as Kofi Annan and others quoted above point out, the trampling of international law makes the world more dangerous.
Blair acknowledges that values matter to the struggle against terrorism. In July 2006, he said, [W]e cannot win this struggle by military means or security measures alone, or even principally by them.25 As quoted at the beginning of this report, the British government appears to be alive to the danger that torture poses for those values: Torture is one of the worst human rights abuses. As torture is outlawed under general international law as well as specific human rights treaties, when governments condone it, they risk losing their legitimacy and provoking terrorism.
Yet the British government seems determined to ignore the unambiguous message that undermining international law and fundamental values will ultimately make Britain less safe. Quite apart from the loss of moral legitimacy, such actions may help to act as a recruiting sergeant for the terrorists cause.
Counterterrorism measures that violate human rightsincluding a softening of the ban on torturealso undermine the willingness of communities to cooperate with the police and security services. Experience around the worldfrom 1970s Northern Ireland to post-Saddam Iraqshows that if the authorities are themselves perceived to be breaking the rules, such cooperation becomes less likely. That threatens the very source of tip-offs that are central to successful counterterrorism efforts.
9 United Kingdom Foreign and Commonwealth Office, Human Rights Annual Report 2006, p.186. http://www.fco.gov.uk/Files/kfile/hr_report2006.pdf (accessed October 20 2006).
10 Another recent example is the handbook Medical Investigation and Documentation of Torture, M. Peel, N. Lubell, and J. Beynon. (2nd editon), June 2006, Human Rights Centre, University of Essex in conjunction with the Foreign and Commonwealth Office.
12Speech by Charles Clarke, UK home secretary, to the European Parliament (Strasbourg), September 7, 2005, http://www.eu2005.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1107293561746&a=KArticle&aid=1125559979691 (accessed June 16, 2006).
13 Terry Davis: There are no excuses for torture, Council of Europe press release, October 11, 2005, http://www.coe.int/NewsSearch/Default.asp?p=nwz&id=7194&lmLangue=1 (accessed June 16, 2006).
14 United Nations Security Council Resolution 1456 (2003) S/RES/1456 (2003), para. 6.
http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/S.RES.1456+(2003).En?Opendocument (accessed June 16, 2006),
15 Prime Minister Tony Blair, Speech to News Corporation, Pebble Beach , California, July 30, 2006, http://www.number-10.gov.uk/output/Page9937.asp (accessed September 20, 2006).
16 Security,freedom and the protection of our values, speech by the home secretary to DEMOS, August 9, 2006, http://press.homeoffice.gov.uk/Speeches/sp-hs-DEMOS-090806?version=1 (accessed September 20, 2006).
17 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, August 1, 2006, http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/240/24002.htm (accessed October 20, 2006); U.K. Parliament, Privy Counsellor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review: Report, December 18, 2003, www.statewatch.org/news/2003/dec/atcsReport.pdf (accessed October 20, 2006).
18 Rachel Sylvester, Lift phone tap ban in terror trials, says new Met chief, The Daily Telegraph, February 5, 2005, http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/02/05/nmet05.xml&sSheet=/news/2005/02/05/ixnewstop.html (accessed October 20, 2006).
19 Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Cm 3420, October 1996; Privy Counsellor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review: Report, December 18, 2003;
Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, August 1, 2006.
20 Orin DeForest and David Chanoff, Slow Burn: The Rise and Bitter Fall of American Intelligence in Vietnam (New York: Simon and Schuster, 1990), p. 122.
21 David Bayley, Police for the Future (Oxford: Oxford University Press, 1994), pp. 7-8 (citations omitted). Bayley is Distinguished Professor in the School of Criminal Justice, State University of New York at Albany
22 Secretary-General calls for Unity of purpose around a common security agenda, United Nations press release, SG/2085, September 8, 2003, http://www.un.org/news/Press/docs/2003/sg2085.doc.htm (accessed June 16, 2006).
23House of Lords, House of Commons, Joint Committee on Human Rights - Review of Counterterrorism Powers, Eighteenth Report of Session 2003-04, HL Paper 153 HC 713. http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/158/158.pdf(accessed August 4, 2006).
24 Home Office, Preventing Extremism Together Working Groups, August October 2005, November 10, 2005, http://raceandfaith.communities.gov.uk/raceandfaith/reports_pubs/publications/race_faith/PET-working-groups-aug-0ct05(accessed July 5, 2006).