By allowing the deportation of a national security suspect to Jordan based on unenforceable promises of humane treatment, a British court decision on Monday threatens to undermine the global ban on torture, Human Rights Watch said today.
The Special Immigration Appeals Commission (SIAC) – an immigration court that hears appeals against deportation on national security grounds – ruled that Omar Othman (also known as Abu Qatada), a recognized refugee and radical Muslim cleric accused of ties to al-Qaeda, can be safely deported to Jordan under the terms of a "memorandum of understanding" brokered between the UK and Jordan in August 2005. The memorandum contains a set of diplomatic assurances undertaking that Othman and other suspects returned to Jordan will be treated humanely and receive a fair trial if they are returned.
The SIAC ruling is the first test of the British policy of securing unreliable assurances from governments that torture to facilitate the deportation of terrorism suspects at risk of such treatment.
"If the Abu Qatada ruling is allowed to stand, it will seriously damage the absolute ban against returning people to the risk of torture," said Julia Hall, senior Europe and Central Asia researcher at Human Rights Watch. "The SIAC ignored credible evidence that assurances from abusive governments fail to protect people at risk of torture. We hope that the higher courts will reverse this ruling and bring the UK back into line with international law."
The decision has implications beyond the UK. Governments in North America and across Europe are watching developments in this case very closely, as many of them are eager to use diplomatic assurances against torture to deport foreign terrorism suspects to places where they are at risk of abuse. Affirming the UK's policy could send a signal to other governments that employing such unreliable agreements is a valid counterterrorism measure.
The SIAC held that the safeguards contained in the memorandum of understanding would provide Qatada with adequate protection upon his return. The assurances are to be monitored by a local nongovernmental organization funded in large part by the UK government. But the court also acknowledged that torture in Jordan is a serious problem, especially for terrorism suspects, and there is little accountability for those who perpetrate torture.
The court accepted the British government's argument that the relationship of trust between the UK and Jordan, and the countries' strong political commitment to abide by the terms of the memorandum remedied any concerns about Jordan violating the agreement.
In May 2006, Human Rights Watch submitted an expert statement to the SIAC in the Othman case arguing that there is no basis upon which to trust unenforceable diplomatic assurances against torture from the Jordanian authorities, whose agents routinely deny that they employ torture. Following his visit to Jordan last June, the United Nations Special Rapporteur on Torture Manfred Nowak in January issued a report documenting substantial allegations of torture, particularly at the hands of the General Intelligence Directorate (GID). These abuses included beatings with a variety of blunt instruments (truncheons, batons, plastic pipes), use of electric shock batons and burning with cigarette butts. When Nowak brought the allegations to the authorities, they denied any knowledge of torture, which he described as "astonishing and point[ing] to a lack of awareness and recognition by officials of the nature of the prohibition of torture ... and of its gravity and severity."
In September 2006, Human Rights Watch released the report, "Suspicious Sweeps: The General Intelligence Department and Jordan's Rule of Law Problem," which included 16 case studies detailing the arbitrary arrest and abuse, including torture, of persons in GID custody. In 14 of the 16 cases, the individuals or their family members provided credible and consistent testimony that the GID had tortured or ill-treated them. Two detainees described how the GID subjected them to the "salt and vinegar walk," which consists of beating the soles of a detainee until they bleed and then forcing him to walk on a mixture of salt and vinegar, causing a burning sensation in his open wounds.
Jordanian officials routinely claim that allegations of torture are a ploy to gain acquittal or get charges dismissed. However, 13 of the 16 detainees had been released without trial and had nothing to gain from continuing to allege that the GID had abused them. To Human Rights Watch's knowledge, Jordan's prosecutor general has initiated no criminal investigations into alleged arbitrary arrest, violation of due process rights, or torture.
"Assurances of humane treatment cannot be considered credible when they come from a government that routinely flouts its international obligations not to engage in torture," said Hall. "Meaningful monitoring in those circumstances is just wishful thinking."
Diplomatic assurances are unenforceable, and there is no recourse for a person if the assurances are breached. The British Parliamentary Joint Committee on Human Rights, the UN Human Rights Commissioner, the European Union network of human rights experts, and the Council of Europe Human Rights Commissioner have all argued against their use as means of returning people at risk of torture.
The lack of any credible enforcement of the ban against torture in Jordan, and particularly for those in GID custody, makes it unlikely that any person detained there on terrorism-related charges would even be willing to report torture to Jordanian officials, much less to a small nongovernmental monitor. To do so would be to risk reprisals against the detainee or his or her family members. Even if a detainee made allegations of torture, Jordan's record of impunity for torture makes a credible and comprehensive investigation extremely unlikely.
The SIAC also accepted the British government's argument that trials before a military State Security Court could be fair, despite its lack of independence, the limited procedural guarantees afforded to defendants, and the historic use of evidence extracted under torture.
"The British government's policy of deporting suspects to countries like Jordan on the basis of flimsy diplomatic assurances not only undermines the global ban on torture, but it also damages Britain's standing among Muslims at home and abroad," said Hall. "In the long run, this threatens to make Britain less safe, not more."