ECHR, international law and Abu Qatada

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election.  Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election.  The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way.  The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges.  Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial).  However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture.  This prohibition has achieved jus cogens status.  Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be.  The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153).  This means that the UK is bound by international law not to torture anyone.  Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law.  Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified.  In the international context it refers to the legal norms that have developed through the customary exchanges between states over time.  It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees.  The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33.  However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT).  Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988.  There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens.  However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured.  Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations.  That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR).  The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT.  The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State.  Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts.  In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does.  There is a substantial body of international law protecting the human rights of individuals.  The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm).  With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities.  Domestically we have the HRA incorporating elements of the ECHR into our law.  It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document.  However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to.  It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT.  If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.

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