The Abu Qatada judgment undermines the fight against torture

This article has been published in The Huffington Post.

The UK for the last 10 years has tried to extradite Abu Qatada, a terror suspect, to Jordan where he faces trial on charges of terrorism. The European Court of Human Rights however ruled last week that such a deportation is illegal because Qatada is likely to face an unjust trial. On these sparse facts, hysterical rights sceptics have re-energised their attack on human rights, as Trojan horse being used to undermine Parliament’s sovereign will. But, it is the human rights community, not panicky politicians, that should be alarmed by the Court’s decision.  The decision is one in which the fight against torture suffers a mighty blow.Chief sceptic is Philip Johnston for whom the judgment was an instance of human rights being manipulated by a terrorist to “fool” Britain. Of all the MPs with an opinion on the matter it’s unsurprising that Johnston quotes Raab, a fellow libertarian and rights-sceptic. It serves as evidence of their thoughtless hostility to human rights that they both miss the implications of the case and miss it so widely.

The Court, for present purposes, decided two issues and in doing so, established a far-reaching rule, from which it carved a narrow exception. The Court ruled that extraditions, to countries suspected of carrying out torture, were lawful provided diplomatic assurances had been procured. By so deciding, the Court ruled in favour of the UK Government. Indeed it praised the detail and depth of the understanding our government had agreed with their Jordanian counterparts. Put another way, a diplomatic assurance is now all that is needed to safeguard a convict from the threat of torture.

This rephrasing is hardly needed to expose the gaping flaw in the Court’s reasoning. Diplomatic assurances, essentially gentleman’s agreements, have now been elevated to the status of substantive rights protections. Far from subverting the will of the Parliament, the Court have struck a death blow to efforts to expose ‘torture treaties’ between states, to the effort to uncover the practice of torture and to the effort to condemn States for turning a blind eye. In what is perhaps its most politically deferential judgment yet, the Court have relegated all concerns about the torture of terror suspects by placing complete and blind faith in the invisible processes of international relations.

Despite the diplomatic assurance, the Court ruled Abu Qatada’s deportation would be illegal under Article 6, which enshrines the right to a fair trial. By taking into account the real risk that evidence obtained by torture would be used to incriminate Abu Qatada, the Court reasoned that to allow the deportation would be to countenance an “immoral, illegal” and “unreliable” trial. Without the risk of corrupt evidence being used against him, Qatada would have been deported and so potential article 6 infringements constitute a narrow defence to the far-reaching diplomatic assurances rule. It is this narrow exception that has been typically mischaracterised by Johnston and is ilk.

There is rightful consternation among human rights groups. The diplomatic assurances rule amounts to an “alarming setback” according to Julia Hall of Amnesty International, and represents taking “one step forward, two steps back”. The “positive development” of the Article 6 exception, she argued, was “eclipsed” by the Court’s decision to substitute diplomatic assurances for binding legal obligations. States, particularly in the anti-terror context, have eroded prohibitions on torture and the European Court’s decision amounts to a “green light” on securing “unreliable” assurances in the place of legal guarantees. Human Rights Watch and Liberty have echoed these criticisms.

Several options remain open in the Qatada case. The quickest solution would be to seek assurances that improper evidence would not be used. Alternatively, there is nothing preventing Qatada going on trial in the UK and Shami Chakrabati has urged that this be done “without delay”. Or, the UK Government could appeal the European Court’s decision. Doing so will add a few more years to Qatada’s already 7 year internment. It should be noted that Qatada has spent this time in the confines of a jail cell, without charge.

The law of human rights is, at its core, the process of balancing competing demands. Abu Qatada’s case is but one example of the effort to weigh the demands of national security against the rights of the individual. With the diplomatic assurances innovation, the Court has eased the process of deporting terror suspects to places where the risk of torture is both real and high. In doing so, they have abdicated their apolitical mediating role and devolved responsibility for protecting potential torture victims to the whispered negotiations of governmental corridors.

Ram Mashru

The Nuclear Distraction: why we must not cast a blind eye on Iran’s violations of fundamental rights

Western preoccupation with Iran’s uranium enrichment programme has distracted the international focus away from the other key issue: that of the government’s human rights violations. International groups have called for a UN led effort to hold Iran to account for its violation of international treaty obligations, and for the contempt it shows for both the international community and its own citizens. If the UN is to be effective, the international community must apply more consistent pressure.

Voluntary human rights obligations

Iran has ratified numerous international human rights treaties, including the International Covenant on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, and conventions on issues such as racial discrimination and children’s rights. Such obligations have been frequently violated. Thus UN reports highlight government persecution of minority groups, imprisonment of political activists, torture and the executions of its most ardent opponents.

Iran’s response to criticism over its human rights record, that foreign governments shouldn’t interfere in its internal political matters, is difficult to justify. Voluntarily undertaken human rights obligations are not internal political matters but legal norms defined and substantiated by international law.

UN inefficacy

Maziar Bahari, an Iranian journalist imprisoned in Iran for 119 days, has argued that the UN must lead the effort to hold Iran to account. He argues that the UN is one of the few international institutions recognised by Iran as legitimate and so has urged the UN to mandate an official investigator in Iran.

But the UN is not the solution. Propositions involving the UN both overestimate the persuasive force of UN demands and fail to recognise the contempt Iran has shown to this institution. The Universal Period Review carried out in February by the UN Office of Human Rights is an example of both the impotence of UN efforts and the lip service paid to this organization by Iran.

The UPR has made recommendations to improve human rights protection in line with Iran’s treaty obligations. Iran claims to be willing to cooperate with the UNHRC but its response to the recommendations has been described as ‘cynical’ by Human Rights Watch. Amnesty International has led the criticism of the inconsistency with which the Iranian government responded, condemning in particular Iran’s acceptance of the recommendation to respect religious freedom but rejection of the request to end discrimination of Baha’is, a religious minority. The government further rejected recommendations to end juvenile executions, rejected guarantees to uphold fair trials, refused to investigate torture and rape allegations and refused to release people detained for peacefully exercising their human rights. Hassiba Sahraoui, the Middle East Deputy Director at Amnesty International, has argued that the rejection of certain recommendations and acceptance of others similar, casts doubt on the prospect of proper implementation.

Other UN attempts to address the rights’ abuses have been restrained and UN General Assembly Resolution 64/176 is timid. In it the General Assembly express their ‘deep concern’ at extra-judicial executions, floggings and amputations as punishments and of the persistent failure to provide due process of law rights. They also express their ‘concern’ over the worsening of human rights violations after the 2009 Presidential election. And yet the resolution ends by a mere ‘call’ for cooperation, a ‘request’ for the Secretary General to submit another report and commits the UN to continue examining human rights in Iran. A General Assembly resolution is a demand without a sanction.

Missed opportunities

The disputed 2009 elections are emblematic of the gross human rights violations in Iran. Critics of the government were arbitrarily arrested, harassed, detained, imprisoned and tortured. The government claimed to be carrying out investigations into the torture and killings but no one appears to have been brought to justice. Iran continues to mislead the Human Rights Council by making claims that it will implement recommendations made by Governments to conduct transparent and independent investigations. But according to Amnesty International, Iranian security forces continue to arrest, detain or convict those alleged to be involved in the post-election unrest. Political and civil society activists remain in prison and, according to the Iranian judiciary, 250 people have been prosecuted in relation to the post-election unrest and at least six of those accused of taking part are at risk of execution after their death sentences were confirmed by appellate courts.

The flagrant human rights abuses committed during the 2009 election were an opportunity for the international community to unite behind the UN and demand reform. The reluctance of the international community to mount an effective challenge at the time has cost the complete loss of political momentum. With the dust having settled on the election, the international community remains once again singularly focussed on the nuclear threat.

President Mahmoud Ahmadinejad’s speech at the UN Summit last year represented another opportunity lost by the international community to engage directly with Iran over its human rights record. When Obama condemned Mr Ahmadinejad’s ‘hateful’ speech, he was predictably light handed on the issue of human rights. The White House transcript of an interview with Obama after the Summit is embarrassing evidence of just how little political space and time was dedicated to the issue of Iran’s human rights abuses. Obama claimed to ‘stand by’ the Iranian people but not once called on Iran to reform and Obama was quick to say he had ‘no interest’ in ‘meddling’ with the rights of people to choose their own government. But what is needed is not a claim to stand by the Iranian people but an effort to speak for the Iranian political and civil activists silenced by imprisonment and torture.

The case for political pressure

Political pressure mounted by the international community is necessary for two reasons. Firstly, the UN is the only international institution that is legally empowered and therefore justified in holding Iran to account. Any action taken by the international community that would circumvent UN machinery would be illegitimate. Instead, UN member states must support this body because is it clear that Iran has no intention of taking the Human Rights Council and, by extension, the UN, seriously.

Secondly, political pressure is necessary because the international community is obliged to speak on behalf of silenced Iranian activists. For Shirin Ebadi, the Nobel Peace Prize Winning Iranian human rights activist, of paramount importance is the release of civil and political detainees in Iran. Like so many others working to restore human rights in Iran, Mrs Ebadi recognises that the Iranian people must be allowed the opportunity to hold their own government to account. So long as civil and political activists are suppressed, the Iranian people are denied the ability to demand their human rights for themselves. The lack of a political voice of the Iranian people is why the international community must speak on their behalf. The international community must not ‘meddle’ with their rights, must not impose its own understanding of human rights, but simply need do as Obama claims, and stand by the Iranian people by voicing their complaints.

The question that will be asked is whether political pressure will be effective when legal measures have proved futile. But the question should not be one of efficacy but one of necessity. The international community must transform their silent signatures on UN Resolutions into insistent political criticism because the Iranian people, for fear of intimidation, imprisonment and torture, are unable to criticise the government for themselves. The international community must condemn Iran’s human rights violations in the same way it has condemned Iran’s uranium enrichment. The Iranian government may be blind to the human rights abuses it perpetrates but it cannot be deaf to international political condemnation.

 Conclusions

A parliamentary report published in 2009 described the human rights abuses in Iran as systematic, yet little parliamentary time has been spent discussing the government response to these abuses. Occasional political statements and a few early day Parliamentary motions do not amount to political pressure. The British government need to do more and should lead the international community in holding Mr Ahmadinejad’s administration to account.

It is widely felt that ‘the West’ is hesitant to complicate the dialogue with Iran over the nuclear programme by discussing human rights or regional peace. Mrs Ebadi argues that non-democratic, non-liberal states like Iran pose a greater threat to peace in the Middle East than nuclear weapons. She goes further to accuse Western governments of forgetting about the subrogation of human rights in Iran since the beginning of Iran’s nuclear programme.

The nuclear programme has ensured that Iran remains central to western foreign policy concerns.  The argument made is one of political reemphasis, not of political refocus: concern about the nuclear threat is self-evidently important, but the threatened nuclear capability should not dominate political discussion to the exclusion of gross human rights violations. As a signatory to human rights treaties, Iran is in violation of international law as a result of its abuses of fundamental rights and governments must hold Iran to account for this. The West is obliged to give the issue of rights violations the space it deserves in political discourse because we have a legal and moral duty to hold the Iranian government to account for the violations of voluntarily undertaken human rights obligations.

Ram Mashru