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A British court ruling on April 27, 2007 that two terrorism suspects cannot be returned safely to Libya is a major setback to the British government’s efforts to deport national security suspects to countries where they risk torture, Human Rights Watch said today. The court ruled against the deportations despite promises of humane treatment from the Libyan government.

The Special Immigration Appeals Commission (SIAC), a court that hears appeals against deportation on national security grounds, ruled that Libyan guarantees of humane treatment and fair trials for the men upon return were not reliable. In a “memorandum of understanding” (MOU) signed by the UK and Libyan governments in 2005, Tripoli gave assurances that no person returned under the MOU’s terms would be subjected to abuse.

The court concluded that the men, known only as “DD” and “AS,” would be at risk of torture and a “complete” denial of a fair trial if returned to Libya. They are alleged to be members of the Libyan Islamic Fighting Group (LIFG), an armed opposition group whose aim is the overthrow of Libyan leader Muammar al-Qadhafi.

“This decision highlights the folly of relying on ‘no torture’ promises from governments that torture,” said Julia Hall, senior researcher in Human Rights Watch’s Europe and Central Asia division. “The British government should accept that and stop trying to skirt its international legal obligations.”

The UK and Libya are both parties to the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment. The treaty prohibits torture, and the return, extradition or expulsion – refoulement – of persons to countries where there are substantial grounds for believing that they would be in danger of being subjected to torture. Under international law, the prohibition against torture and refoulement is absolute and cannot be waived under any circumstances.

The SIAC decision is likely to have international ramifications. Governments in North America and Europe are closely monitoring developments in the UK, as they too seek to return terrorism suspects to places where they risk torture, also by relying on diplomatic assurances that the government will not torture specific suspects.

The US government, for example, is considering whether to transfer a Libyan detainee, alleged to be associated with LIFG members, from Guantanamo Bay to Libya, based on assurances of humane treatment from the Libyan government. The man’s lawyers have appealed to the US Supreme Court to protect against such a transfer based on his fear of torture and unfair trial upon return.

The SIAC concluded that torture is “extensively used against political opponents among whom Islamist extremists and LIFG members are the most hated by the Libyan Government, the Security Organisations and above all by Colonel Qadhafi.” It also noted that the incommunicado detention of political opponents, often without trial for many years, “is a disfiguring feature of Libyan justice and punishment.”

In January 2006, Human Rights Watch released a detailed report on human rights conditions in Libya, “Words to Deeds: The Urgent Need for Human Rights Reform,” which documented serious allegations of torture. Torture is a crime in Libya, but 15 out of 32 individuals Human Rights Watch interviewed in Libya’s prisons said security authorities had tortured them during interrogations in recent years.

The UK government argued that the Libyan government would respect the guarantees in the “memorandum of understanding” in order to maintain good relations with Europe and the United States. But the SIAC ruled that the assurances in the memorandum are vulnerable to breach because the Libyan government continues to use incommunicado detention and torture against prisoners and detainees. The court determined that any pressure put on Libya by the UK to abide by the MOU could meet resistance because “the [Libyan] regime can be impervious to major international pressure, and may even take strongly against it,” thus “limit[ing] the availability of publicity or a fear of publicity as a means of bringing about compliance or redress. There are no domestic political bodies or considerations in Libya which would assist.”

“The Libyan government has used torture too frequently against political detainees for its assurances to be trusted,” said Hall. “Without drastic system-wide improvements in prisoner treatment and due process rights, Libya is not safe for return.”

The British government relied in large measure on arrangements it made with the Qadhafi Development Foundation, headed by Muammar al-Qadhafi’s son Seif al-Islam, to monitor the treatment of terrorism suspects returned to Libya. But the SIAC rejected the notion that monitoring by the foundation would be effective.

Monitoring torture is extremely difficult, irrespective of which group carries it out, because torture is practiced in secret using methods that are hard to detect, Human Rights Watch said. Medical personnel in many countries are complicit in torture and often monitor the abuse to ensure that a prisoner remains alive and that various forms of abuse are not detected. Even where a monitoring body is granted unrestricted access to detention facilities, detainees may not report their abuse due to fear of reprisal.

The SIAC decision in the Libyan cases is in contrast to a February 2007 decision by the same court, which accepted that a similar agreement between Jordan and the UK was reliable because of the relationship of trust said to exist between the two governments. However, Human Rights Watch has also documented the routine reliance on torture and abuse by the Jordanian internal security division. The United Nations special rapporteur on torture confirmed these findings in his most recent report on Jordan.

“States that routinely torture terrorism suspects clearly put national security over human rights,” said Hall. “Courts should reject the notion that diplomatic links with such states can protect suspects from abuse.”

Courts around the world have used Human Rights Watch’s extensive research on diplomatic assurances, including in the US, Canada, UK, Netherlands, Switzerland, Austria, and Russia, to illustrate that such promises do not provide an effective safeguard against torture. In March 2007, Human Rights Watch released a report on seven Guantanamo detainees returned to Russia based on assurances, some of whom were subsequently tortured and ill-treated.

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