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.
Source : Human Rights Watch
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