(London) - A House of Lords ruling that allows the deportation of terrorist suspects to Algeria and Jordan damages the global ban on torture, Human Rights Watch said today. The ruling wrongly endorses the British government's use of unreliable promises from the Algerian and Jordanian governments that, despite the well-documented evidence of torture in both countries, individuals sent from the UK would not be tortured.
In the UK judgment, issued today in the cases of RB and U (Algeria) v. Secretary of State for the Home Department and Secretary of State for the Home Department v. OO (Jordan), the Law Lords upheld earlier rulings of the Special Immigration Appeals Commission (SIAC), an immigration court that hears appeals against national security deportations. The judgment allowed the government to deport two Algerians and a Jordanian national, Omar Othman (known as Abu Qatada), in reliance on "diplomatic assurances" against torture from the men's home governments.
"The Law Lords have given the government a green light to send people back to places where they risk torture and ill-treatment," said Julia Hall, senior counterterrorism counsel at Human Rights Watch. "Given how the Law Lords have stood up for human rights in several earlier counterterrorism cases, it is extremely disappointing that they have now agreed to the discredited practice of deporting suspects based on unreliable government promises."
Human Rights Watch and Justice, the London affiliate of the International Commission of Jurists, submitted a third party intervention (amicus brief) and made oral submissions in proceedings before the House of Lords. The groups argued that diplomatic assurances are ineffective in protecting people from torture and ill-treatment on return to their home countries, and that the SIAC's review of secret evidence in closed sessions to assess risk on return violated fundamental notions of procedural fairness.
The Law Lords refused to undertake a full review of the SIAC's ruling, and instead just ruled that SIAC did not act "irrationally" in finding that Algeria's and Jordan's assurances could be trusted. But Human Rights Watch's work on the two countries, coupled with its years-long research on diplomatic assurances, including an October 2008 report titled "Not the Way Forward: The UK's Dangerous Reliance on Diplomatic Assurances," contradicts that finding.
If deported, the two Algerians will most likely be detained by the notorious Department for Information and Security (DRS), whose operatives have been accused of-but never held accountable for-abuses such as beatings, electric shock torture, suspending prisoners from the ceiling, and forcing them to ingest chemicals. In its May 2008 review of Algeria, the United Nations Committee Against Torture (CAT) expressed serious concern about reports of secret detention centers operated by the DRS, numerous cases of torture and ill-treatment reportedly at the hands of the DRS, and the lack of prompt and impartial investigations into allegations of such abuse.
The CAT report echoed evidence that was available to the SIAC at the time of its initial rulings on deportations to Algeria in 2007. At that time, the British government acknowledged the existence of torture in Algeria, the lack of civilian control over the DRS, and the fact that it "had never seen any report of any prosecution of a DRS official for torture or ill-treatment." Despite this, the SIAC found the Algerian assurances that it would not torture to be reliable, based on the trend in Algeria toward civilian control, the promised loosening of military power, and the assertion that President Abdelaziz Bouteflika's position is not subordinate to the military.
"President Bouteflika is ultimately responsible for DRS torture and impunity, yet he is the person trusted by the British government to prevent those very same acts," said Hall. "The British government is cynical to take President Bouteflika's promises at face value."
Othman, a radical Muslim cleric alleged to have ties to al Qaeda, will probably be taken into custody by Jordan's General Intelligence Department (GID) if he is sent home. Human Rights Watch documented cases of torture by the GID in a 2006 report titled "Suspicious Sweeps: The General Intelligence Department and Jordan's Rule of Law Problem."
Othman could be transferred out of GID custody to a special wing of an ordinary prison, pending trial or for further detention pending investigation. Human Rights Watch documented widespread and routine torture in those prisons in an October 2008 report titled "Torture and Impunity in Jordan's Prisons: Reforms Fail to Tackle Widespread Abuse."
In its February 2007 decision, SIAC acknowledged that Othman would be taken into GID custody, and that the GID system was rife with physical abuse, procedural irregularities, and impunity for perpetrators. The SIAC relied on Othman's "high profile" to conclude that intense scrutiny of his treatment by persons sympathetic to him in Jordan, and by the local and international media, would lead the Jordanians to comply with the terms of the diplomatic assurances contained in a "memorandum of understanding" (MOU) between the two governments.
The SIAC decision failed to analyze the problems with monitoring in countries where torture is practiced. These problems include the weakness vis-à-vis the government of local human rights groups (which conduct the monitoring under the terms of the MOUs), the lack of incentive on the part of both the sending and receiving governments to acknowledge any breach of the assurances, and the possible fear of reprisal that the detained person might feel in complaining about abuse.
"The SIAC ignored credible evidence that assurances from governments that practice or condone torture cannot be trusted," said Hall. "And now the Law Lords have also turned a blind eye to that reality."
In reaching its decision, the Law Lords quashed a Court of Appeal ruling handed down in April 2008 that prohibited Abu Qatada's deportation to face a trial that would likely include evidence extracted by the torture of other detainees in Jordanian custody. The Law Lords held that Jordanian law prohibited such evidence from being admitted at trial. They found that although there was a risk that such evidence would be admitted and Qatada's fair trial rights might be violated, the risk of the admission of such evidence did not rise to the level of a "flagrant denial of justice" that would effectively extinguish or nullify his fair trial rights. The Convention Against Torture specifically prohibits the use of such evidence.
"Jordanian security courts are not independent and evidence is obtained by the use of torture," said Hall. "It defies logic to think that trials under such circumstances could mete out justice. By treating as acceptable the risk of the use of evidence obtained under torture, the Law Lords have struck another blow against the global ban."