Major blow to diplomatic assurances/torture memoranda

To return to an issue that I have blogged on previously, the controversial policy of the UK Government of signing "memoranda of understanding" with states suspected of carrying out or ignoring torture of detainees has been dealt a significant blow with the decision today by the Special Immigration Appeals Commission that two terror suspects that were scheduled for deportation to Libya must not be sent back there. The judgement in the case of DD and AS v. The Secretary of State for the Home Department, available in full here, although not condemning outright such agreements in the abstract, held that the particular memorandum of understanding between the UK and Libya does not provide enough safeguards to allow the UK to fulfil its obligations under Art. 3 ECHR (the prohibition of torture). The crucial passage from the judgment reads as follows (para. 428):

Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.

A number of important points can be gleaned from that paragraph alone. Firstly, there need not be any mala fides on the part of the potential receiving state for a memorandum of understanding to be found insufficient to avoid responsibility under Art. 3 ECHR. Secondly, the level of risk necessary that such assurances would be violated is set commendably low: improbable, but genuine. Thirdly, factors such as political volatility, the likelihood of change, and the possibilities for effective monitoring can be essential in determining whether a risk is genuine or not, however improbable. Lastly, the SIAC makes it clear that this is a contextual, and not a general or abstract, judgment, and that changing conditions in Libya over time may mean that diplomatic assurances can be effective in allowing the UK to deport terror suspects there without violating Art. 3 ECHR.

These points, along with a number of others, are dealt with in the judgment in more detail. There is, for example, a lengthy discussion both of Qadhafi's character, and the manner in which his new rapprochement with the West has been driven by an instrumental pragmatism which could, if the situation so demanded, see it reversed, particularly in isolated cases involving the interrogation of islamist extremists (see e.g. paras. 333-372 of the judgment). The Commission concluded that "[t]here is not yet the range of contacts or years of experience of dealing with each other at many different and friendly levels, or the depth of other links between Libya and the UK which would make the diplomatic path predictable" enough for a diplomatic assurance as to the non-resort to torture to be viewed as absolutely watertight (para. 370), even if Libya's recent and continuing rapprochement with the West is a factor of genuine - and increasing - importance in this regard. The necessary chance of such a risk materialising is set out clearly in the following passage (para. 371):

We have accordingly come to the conclusion that although it is probable that [witness for the Home Department] Mr Layden’s judgment as to how the Libyans would observe the MOU in relation to the physical treatment of the Appellants is sound, and that they would not be ill-treated in a way which breached Article 3, we cannot adopt his conclusion that that would be well-nigh unthinkable. Instead we think that there is a real risk that that would happen... We do not therefore have the confidence which we need to have, for the return of the Appellants not to breach the UK’s international obligations. In short there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MOU to the UK’s attention.

There is thus also significant consideration given to the matter of monitoring: where the guarantee of adherence to diplomatic assurances rests on a pragmatic ascertation of self-interest (and not, for example, on a growing commitment to human rights, or a culture of honouring one's given word), the first calculation of a regime that thought that it may stand to gain from torturing detainees would not be the threat of sanctions from, or the deteroration in relationship with, the returning state, but whether it could prevent any breach coming to light. The ability of an MOU to work where a regime could use well known ploys to prevent access to a prisoner does depend on the monitoring body having access or the willingness to report obstructions to the sending country. The very real prospect here that a breach could go undetected, or undetected for a long time, means that the potential adverse reaction from the UK would also be delayed or prevented. The downside of any breach could be markedly diminished" (para. 365).

The issue of monitoring, then, becomes vital. The Commission notes, for example, that strong civil society monitoring bodies, such as a free press or genuinely independent NGOs, or even a strong public constituency of popular support for Islamic militancy, are not present. The Commission goes on to note that the body envisaged as implementation monitor, the Qadhafi Development Foundation, although by far the best-placed "NGO" for the job, enjoying a degree of independence unique among Libyan NGOs, is not sufficient for the task. Although it does have an important track record of human rights protection and humanitarian advocacy, it's President is Saif al Islam al Qadhafi, Colonel Qadhafi's second son, who, despite his reformist opinions, is nonetheless still deeply limited in the criticisms he can level at the regime. The QDF, then, would be useful in monitoring the Memorandum in cases in which a rogue guard tortured detainees against the will of the regime; this is not, however, viewed as particularly likely. In the more probable scenario, of torture sanctioned at the highest level, it would be effectively voiceless. The Commission concludes that "[i]t [the QDF] is no more independent of the regime than is Saif himself, and he is not independent" (para. 330).

Other issues include the possibility that the length of time spent in detention either pre-trial (paras. 375-376) and on death row (paras. 377-378) could lead, indirectly, to a breach of Art. 3 ECHR, although, in terms of the latter, execution was not viewed as a real risk - even if a death sentence was a real possibility, it was unlikely to be carried out; and the possibility, gleaned from tentative ECtHR dicta, that the probable lack of a fair trial in the receiving state might act as a barrier to deportation ("[t]he ECtHR has not enunciated any general principle that a state bears an indirect responsibility for breaches of the ECHR by states which are not parties but to whose territories someone is deported", para. 397), holding that a "balancing" (at least in terms of derogable rights) between the rights of the deportee and those of individuals he put at risk, or threat to the host state, could be carried out (para. 400). The Commission even dealt with the significance of Qadhafi's strong personal relationship with the outgoing Tony Blair (para. 380). Lastly, the one of the appellants had raised the possibility that, given his family situation in the UK, deportation would amount to a violation of the right to family life contained in Art. 8 ECHR; an idea dismissed by the Commission in this case (paras. 405-414).

The other area of real interest concerns the Commission's judgment with respect to the 1951 Refugee Convention (it does not consider the Convention Against Torture at all, but we may assume that its holdings in terms of Art. 3 ECHR would also be applicable to the UK's obligations inder the CAT, and in particular its own Art. 3 provision on non-refoulement). In short, it seems unlikely that the Refugee Convention will be of particular importance in cases involving suspected terrorists within the UK in the future: one of the appellants, DD, had already been successfully through a refugee status determination in the UK; however, the Commission ruled that the Secretary of State was correct in his assertion that DD's terrorist activities meant that he was excluded from the provisions and protections of the Convention. The relvent provisions of the Convention read as follows:

1. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

33. 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The Commission considered the claim that, as the acts upon which the UK was relying in excluding DD from protection under the Convention had occurred after the positive refugee status determination, they could not be used to divest him of that status (paras. 110-112). This position seemed to be supported by a Canadian Supreme Court case, Pushpanathan v. Canada (MC1) [1999] INLR 36, in which the Court held that "the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status" (para 58 of that judgment). This, however, was not accepted by the SIAC, who, following a judgment of the UK Immigration Appeals Tribunal (in KK v. SSHD [2004] UKIAT 00101) noted that, given the words "prior to his admission to that country as a refugee" were inserted into Art. 1F(b) alone, meant that they could not be read into Art. 1F(a) or (c); thus DD could be stripped of refugee status if he engaged subsequently in "acts contrary to the purposes and principles of the United Nations" - of which terrorism is a generally accepted example (para. 121).

Lastly, the Commission held that, even if DD were not excluded from protection under Art. 1F, then the non-refoulement provision would not apply as a result of Art. 33(2): "It is obvious from our conclusions about national security that it is our view that there are “reasonable grounds” for regarding him as a danger to the security of the UK", and concluding moreover that neither here nor in Art. 1F was the deporting state required to balance the potential for individual rights violation against the suspects if deported against the risk to itself and its citizens. As soon as the criteria of Arts. 1F or 33(2) were fulfilled, there is no bar under the Refugee Convention to deporting the individual in question (although of course other obligations, such as the ECHR or the CAT may well still apply) (paras. 125-126).


One of the most striking things about this judgment in general is the level of acceptance that the appellants are dangerous men, deeply involved in Islamic militancy and posing genuine threats to the UK's national security. The Commission conducts a detailed review of the appellants' activites, and concludes, for example, that "We are entirely satisfied that DD is a real and direct threat to the national security of the UK... [who] is a global jihadist with links to the Taleban and Al Qa’eda" (paras. 71-72), and that "on the open evidence alone AS is a clear danger to national security. He is an Islamist extremist who has engaged actively and as a senior member with a terrorist group clearly engaged in support work for jihadist activities" (para. 104). The Commission makes, to my mind, a commendable summary of the choice facing it, which has led it to its equally commendable decision (para. 430):

We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.

The effect of this passage, which to me nicely encapsulates the tragic dilemma posed by this extremely hard ethical question, is, sadly, somewhat diminished by the almost petulant tone adopted by the Commission in the very next paragraph:

The decision of the ECtHR in Chahal in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.

With these last words, the Commission seeks to challenge the absolute legal prohibition laid down by the ECtHR in terms of refoulement in torture cases, implicitly suggesting instead that this should be subject to the kind of legal balancing act common to many other rights dilemmas. There is no space to go into this in detail here, but many, myself included, although believing that, ethically speaking and at an abstract level, torture can and must be balanced against other possible ethical risks (that there can, philosophically, be no absolutes), it is a different matter entirely to attempt to write that necessary relativism into positive law. It is a subject on which I may blog more soon; for the moment, however, it is enough to refer any reader who have made it this far to Jeremy Waldron's excellent article on the subject, "Torture and Positive Law: Jurisprudence for the Whitehouse", 105 Columbia Law Review (2005) 1681-1750.