1. What are the judges in the House of Lords being asked to decide?
A special nine-judge panel of the House of Lords Judicial Committee will convene on October 4 to consider the lawfulness of government powers that allow foreign terrorism suspects to be indefinitely detained without trial or charge. The powers are contained in Part 4 of the Anti-Terrorism Crime and Security Act 2001 (ATCSA), which was introduced in the wake of the September 11 attacks.
The case is an appeal from an October 2002 Court of Appeal decision that indefinite detention is compatible with British and international law. The Court of Appeal judgment reversed a July 2002 ruling by the Special Immigration Appeals Commission (a tribunal that hears deportation cases involving national security, SIAC) that the powers were discriminatory and in breach of Britain’s obligations under human rights law.
The House of Lords is also being asked to consider whether evidence from third countries obtained under torture can be used in indefinite detention cases. The point arises from a separate August 2004 majority ruling by the Court of Appeal that such evidence can be used provided the UK neither “procured nor connived at” the torture. The House of Lords will decide on October 4 whether to hear the torture issue together with the derogation challenge, or postpone consideration of it until a later date.
2. Why is “indefinite detention” so controversial?
Indefinite detention without trial or charge is never permissible under human rights law. That includes the domestic Human Rights Act, which incorporates the European Convention Human Rights (ECHR) into British law.
In order to pass the legislation, the government therefore had to suspend (or “derogate from” in legal language) part of its obligations under the ECHR and a corresponding international treaty (the International Covenant on Civil and Political Rights, ICCPR), and declare “a public emergency threatening the life of the nation.” The UK is the only country to derogate from the ECHR and ICCPR in the wake of the September 11 attacks. Forty-five countries are bound by the ECHR, and 151 are bound by the ICCPR.
3. How many people are being held?
Seventeen persons have been certified as “suspected international terrorists” under the ATCSA. Eleven are currently subject to indefinite detention without trial. They are being held in maximum security prisons at Belmarsh and Woodhill, and in one case the Broadmoor high security psychiatric hospital. A twelfth man, known only as G, is on bail but effectively under house arrest. Two suspects have been released. One, known only as D, was recently released after the government said “new information” indicated he no longer posed a threat. Another, known only as M, was released earlier this year after the SIAC determined that there was insufficient evidence to warrant his detention. Another suspect is being detained under other unspecified powers, and two more have left the United Kingdom. Seven of those in indefinite detention have been in custody for more than two years.
4. Why is the issue of evidence obtained under torture so significant?
The absolute nature of the prohibition against torture is a cornerstone of international law. There are no excuses or exceptions even in time of war or other public emergency. In addition to the language banning torture in the ECHR and ICCPR, there is a specific international treaty—the Convention Against Torture—that enumerates the measures necessary to ensure that torture is never employed. That treaty specifically prohibits the use of evidence obtained under torture in “any proceedings” before a court. Britain is bound by the Convention Against Torture in international law, and will report to a United Nations committee in November 2004 on its recent record of compliance with it. The absolute ban on torture is also a fundamental norm of customary international law that equally requires the compliance of the UK in all circumstances.
The government’s willingness to use evidence obtained by torture at the hands of others erodes the absolute prohibition against torture. The argument relied on by the majority in the Court of Appeal is that the UK, which has ratified the treaty, is not bound to implement its protections because the Convention Against Torture has not been incorporated into domestic law. This undermines the very purpose of the Convention Against Torture—to ensure the comprehensive ban on torture is respected to the greatest degree possible by the greatest number of states. It is particularly worrying in the context of the revelations about torture and abuse of detainees during interrogations in U.S. custody at Abu Ghraib in Iraq, Bagram in Afghanistan and Guantanamo Bay, as this position would in essence sanction “exporting” the dirty work of torture to states that are willing to violate their international legal obligations.
5. How does the Government decide who to detain?
Before being detained indefinitely, a person must first be “certified” by the Home Secretary as a “suspected international terrorist.” The law allows the Home Secretary to certify a person if he has a “reasonable belief ” that the person is a threat to national security and a “suspicion” that the person is an international terrorist or has links with an international terrorist group. This requires far less evidence than would be needed for a conviction in a criminal prosecution or a civil case, and can be based on evidence that would not be admissible in a criminal court. Certification is based largely on classified information. That information is not available to the detainees, or their lawyers of choice, or independent observers, like Human Rights Watch.
6. Can the detainees challenge their detention in court?
The detainees have the right to challenge their detention before the SIAC, but with far fewer procedural guarantees than are accorded to those charged with a crime. The standard of proof is far lower than the criminal standard (“beyond a reasonable doubt”), or the civil standard (“on the balance of probabilities”). SIAC uses a system of dual hearings and legal representation. Each detainee is assigned a security-cleared barrister known as a “special advocate.” Classified information and evidence is heard during “closed” sessions attended by the special advocate. Detainees and their lawyers of choice are excluded from those sessions, and contact between the special advocates and detainees is limited. Non-classified evidence is heard at “open” hearings with the detainee present.
7. Does the recent release of the detainee known as D show that the system has the proper safeguards?
The release of D, an Algerian national, illustrates the arbitrariness of the detention regime rather than the effectiveness of its safeguards. D was first detained in December 2001 on the basis of secret evidence. D was never questioned or interrogated during his detention. Even now, he does not know the basis of the government’s case against him. The government’s decision that the evidence no longer warranted his detention came less than 3 months after the SIAC upheld his certification.
Another Algerian detainee, known as M, was released in March 2004 after the SIAC decided that there was insufficient evidence even to establish a reasonable suspicion or belief that M was involved in international terrorism. The court criticized some parts of the government’s secret evidence as “unreliable” and “inaccurate” and other parts as “clearly misleading. M spent 16 months in Belmarsh prison without cause.
8. Why do the measures only apply to foreign nationals?
The indefinite detention powers are derived from immigration powers, which permit foreign nationals to be detained pending deportation. British nationals cannot be detained under immigration powers.
The threat to the UK from terrorism is not confined to foreign nationals, however, as recent arrests of British citizens on terrorism charges make clear. Despite being derived from immigration law, indefinite detention is only applied to foreign nationals who cannot be deported from the UK. This means the detention regime effectively discriminates solely on the ground of nationality. This form of discrimination is not permitted under human rights law, a point emphasized by the United Nations Committee on the Elimination of Racial Discrimination. The discriminatory nature of the detention power has also been highlighted by the SIAC, and the Joint Human Rights Committee of the UK Parliament.
9. Why doesn’t the government deport the men?
All of the detained men are subject to deportation orders. However, Britain is prohibited from sending persons to countries where they would be at risk of torture. It accepts that the detained men could not be deported to their countries of origin without a serious risk that torture would occur.
10. The government says the men are free to leave at any time. Why don’t they just leave?
The men cannot travel to their home countries for the same reason that the government cannot safely deport them to their countries of origin, namely that they would be at risk of torture or death. One of the men is a stateless Palestinian refugee. In principle, they could travel to third countries, if they were able to find one willing to accept a person designated by the UK government as a suspected international terrorist, where there was no risk of torture. Given that the alternative is indefinite detention in a high security facility, it improbable that the men would decide to stay if they had the option of leaving safely. Only two of the detainees have left the UK; one holds a French passport and lives in France.
11. Why does Human Rights Watch oppose “indefinite detention”?
The prospect of detention without any term, sentence, or opportunity to reasonably challenge the ongoing detention is inimical to the right to liberty. Indefinite detention requires a long-term derogation or legal departure from Britain’s human rights obligations. Although the derogation powers will lapse in 2006 if not renewed, the government has indicated that the threat on which it justifies derogation is likely to continue for many years, raising the prospect of continuing derogation. Derogation sends a message that some human rights are not important, and that some people deserve fewer human rights than others. In the words of the Joint Human Rights Committee of the UK parliament, long-term derogation has a “corrosive effect on the culture of respect for human rights.” The United Nations Human Rights Committee has also expressed concern about the measures, which it argued “may have far reaching effects on the rights guaranteed in the Convention [the ICCPR].”
In December 2003, the Newton Committee—a group of senior parliamentarians tasked with reviewing the Anti-Terrorism Crime and Security Act—“strongly recommended” that the indefinite detention powers be “replaced as a matter of urgency,” a view endorsed by the Joint Human Rights Committee.
Indefinite detention has taken a toll on the mental health of some of those subject to indefinite detention: detainee G was granted bail after the SIAC accepted that his detention had triggered “psychotic episodes.” Others are said to suffer from depression and suicidal thoughts. While those convicted of a crime have the prospect of release at a future date, or at least an understanding of the length of their incarceration, those subject to indefinite detention are in limbo.
Indefinite detention is also discriminatory. There is growing evidence that indefinite detention is regarded by many Muslims in the U.K. as an injustice targeted against their community. The Muslim Council of Britain and the Church of England have expressed alarm about the issue, and the Home Affairs committee of the UK Parliament recently announced an enquiry to examine the impact of counter-terrorism measures on community relations. Alienating Muslims in the U.K. is not only inherently undesirable but is also likely to undermine their willingness to cooperate with the police and security services.
12. What are the alternatives to indefinite detention?
Human Rights Watch shares the view of the Newton Committee that criminal prosecution subject to the usual fair trial safeguards is preferable to indefinite detention. Where there are obstacles to the effective prosecution of terrorism suspects, the appropriate response is to undertake reform of the criminal law in accordance with human rights and fair trial standards. In that regard, the UK Home Secretary’s recent comments on the government’s willingness to consider relaxing the ban on the use of phone tap and other intercept evidence—a widely advocated change— are a welcome development.
13. What will happen if the House of Lords decides that indefinite detention is allowed under UK and international law?
The detainees can apply to the European Court of Human Rights in Strasbourg. If the Strasbourg court agrees to hear the case, it would then consider whether the measures breach the European Convention on Human Rights.