Torture and non-refoulement

The Guardian reported yesterday that Tony Blair has hinted that he may seek to change the Human Rights Act in order to force courts to accept his plans to deport radical muslim imams to countries in which they face the threat of torture or cruel, inhuman and degrading treatment. The UK has been seeking to conclude "memoranda of understanding" with the Governments involved, but Blair has acknowledged that the British courts are unlikely to view these guarantees as sufficient.

Things, however, cannot be as easy as a simple amendment of the Human Rights Act. Firstly, because this Act was intended to incorporate the European Convention on Human Rights into UK law, and the UK Government will still have the same obligations under that convention regardless of what it does to its domestic law. More interestingly from my own point of view, however, there is also the issue of the UN Convention against Torture. In this regard, it is worth bearing in mind that this Convention was at the centre of one of the most high-profile House of Lords judgments of recent times, in the Pinochet case.

Article 3(1) of the Torture Convention is very clear on the subject of deportations.

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

This, however, seems little more than a logical extension of the general definition of the crime of torture included in Article 1:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It is also interesting to note the striking language used in Article 2(2) of the Torture Convention, particularly in the context of the deportation of those who are seen to encourage terrorism:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It certainly may be argued that knowingly returning someone to a country in which"there are substantial grounds for believing that he would be subject to torture" would constitute the "consent or acquiescence of a public official" under the meaning of Article 1. The wording of Article 4(1) of the Convention also seems to support such a reading:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

If, therefore, we can coherently argue that deporting someone to a country in which there are substantial grounds for believing that he may be subjected to torture can be described as the "consent or acquiesence of a public official", and, if such consent or acquiesence can be viewed as "complicity" in the sense of Article 4, then those responsible for the extradition could themselves be guilty of under international law of any torture that does, in fact, result, an "international crime in the highest sense", according to the Pinochet judgment, and one which, due to its jus cogens nature, "justifies states in taking universal jurisdiction over torture wherever committed" (Lord Browne-Wilkinson). Nor is this chain of reasoning particularly outlandish; the "consent or acquiesence of a public official" is what is required to make any torture an international crime; thus, it seems sensible to suggest that the official who provides such consent is guilty as "complicit", regardless of whether they were directly involved in the actual act.

Blair may well, thus, win the current battle, forcing reluctant courts to accept the controversial plans to deport those suspected of preaching terror to countries in which they face the risk of torture. This might not, however, be the end of the affair; if my reasoning here is sound, then he may risk incurring personal international criminal liability for any torture that does, in fact, occur. Nor, of course, after the Pinochet judgment, would he enjoy any immunity rationae materiae in respect of such allegations, and as such had better choose his holiday destinations with care when he eventually steps down in a couple of years' time...