7 February 2012

Who’s responsible for protecting terrorist suspects?

In its recent judgment in Othman, the European Court of Human Rights held that the United Kingdom could not expel a Muslim cleric suspected of ties to Al-Qaeda to Jordan. The judgment is of interest for our SHARES project, as the Court on the one hand cautions against international cooperation in the sphere of extradition of terrorist suspects – stressing the responsibilities under human rights law of expelling States – but on the other hand urges States that definitely wish to expel or extradite to do so only in close cooperation with receiving States so as to protect against maltreatment and to ensure a fair trial.

Othman, who had been allowed to reside in the UK as refugee in 1993 and was detained there in 2002 under the Anti-terrorism, Crime and Security Act which was introduced two months after 9/11, is facing charges of terrorist conspiracies in Jordan. The European Court found that there was a real risk that evidence obtained by torture would be used against Othman during his trial in Jordan. The judgment, together with other recent pronouncements of the European human rights court, constitutes important guidance for those countries struggling with the twofold objective of bringing to trial and permanently relocating terrorist suspects, while at the same time guaranteeing their human rights. On this very issue, also see André’s post on the UK Court of Appeals decision in Yunus Ramhmatullah v Secretary of State for Foreign and Commonwealth Affairs et ano.

Although the judgment was not well received in the United Kingdom (see here and here) and Prime Minister Cameron publicly voiced his disappointment over it only days after it was published in a speech before the Council of Europe – in support of his argument that the European Court is in dire need of reform – the judgment is on closer inspection also receptive to on-going efforts of Western countries to extradite or expel terrorists. Indeed, Amnesty’s Julia Hall describes the judgment as ‘an alarming setback for human rights’, in view of the Court’s holding under Article 3 of the Convention that the diplomatic assurances negotiated between the Jordanian and UK governments effectively removed the risk that Othman would be tortured or otherwise ill-treated in Jordan.

Thus, notwithstanding the Court’s strong stance on the admissibility of evidence obtained by torture, the judgment may open a path for Western countries facing the problem of not being able to remove terrorist suspects due to human rights concerns, to try to alleviate these concerns by procuring diplomatic assurances and cooperate in post-expulsion monitoring. That the European Court sees diplomatic assurances as a viable option in this respect is also confirmed in last week’s judgment in M.S. v Belgium (French only) where the Court found that the expulsion from Belgium to Iraq of a Al-Qaeda suspect would violate Article 3 of the European Convention but adding, notably, that the Belgian authorities should have obtained a series of safeguards from the Iraqi authorities with a view to ensuring his safety in Iraq. Although the Court has in the past shown reluctance to accord weight to diplomatic assurances from countries which systematically violate human rights (see for example the judgment in Saadi v Italy, the Court is now signalling that even in respect of such countries, it may be worthwhile to consider the procurement of diplomatic guarantees and the setting up of monitoring mechanisms with and in the receiving country.

The M.S. v Belgium case also underscores that it may well be that, in some cases, diplomatic assurances will be the only realistic option for States who want to remove terrorist suspects – since these persons are not particularly welcome in third countries. Like the U.S. government in respect of the Guantanamo Bay detainees, Belgium had sought resettlement possibilities in a whole range of countries (the judgment mentions Venezuela, Burundi, Vietnam, Burkina Faso and Costa Rica) – but all apparently refused. Absent any resettlement possibilities, it will be the ‘joint responsibility’ of the country of origin and the country of residence to find a solution which is satisfying to all parties.

One positive offspring of this development is that Western countries have a clear interest in contributing to improving the quality of justice systems in receiving countries. One example of a country where international efforts in this respect appear to bear fruit is Rwanda. The International Criminal Tribunal for Rwanda in 2011 in the case of Uwinkindi considered the justice system in Rwanda sufficiently improved so that it for the first time allowed for a case to be transferred to the Rwanda prosecutor. This reasoning was some months later confirmed by the European Court in the case of Ahorugeze v Sweden. In both cases, mention was not only made of successful international efforts to improve the quality of the Rwandese judiciary and detention conditions, but the Courts also referred to diplomatic guarantees as a means to ensure international standards are met. In respect of Kenya, international efforts are also underway to ensure the fair prosecution of piracy suspects. However, as we reported, a German court found the current agreements in place between the EU and Kenya to insufficiently remove the risk of ill-treatment.

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