It’s been a few more bad weeks on the torture front. On 20th January a report compiled by several former war crimes prosecutors alleged “direct evidence” of the “systematic torture and killing” of thousands of men, thought to be victims of the Syrian government’s security agencies. On the 27th, Robert Fisk used his Independent column to raise the plight of Abdullah al-Qahtani, a Saudi national on death row in Iraq, whose case has been taken up by Amnesty International, and who has been subject to the torture typical of Iraqi detention centres.
If such conduct in Iraq and Syria can be tolerated or explained away by the environment of war, violence, and impunity in which they occurred, what then, as to how the UK is dealing with torture? Another report on systematic torture in Iraq, was, in January, submitted to the Office of the Prosecutor of the International Criminal Court. Compiled by Public Interest Lawyers and the European Centre for Constitutional and Human Rights, the report details both the commission of torture by British soldiers and the failure of the British state to properly investigate and prosecute the actions of its citizens.
I’ll return to this Report over the coming weeks, but here I want to comment on the judgment of the European Court of Human Rights in Jones & Ors v United Kingdom, which was delivered 14th January 2014. The Court upheld the House of Lords’ 2006 decision which ruled that British citizens could not seek redress through the Courts for the torture to which they were subjected to, during detention, by named Saudi police officers, including incidents allegedly authorized by a Saudi minister.
The ECtHR judgment reads like a sorry positivist textbook, and is devoid of any reference to actually existing human rights. Instead, the judges appear to have read the sources of law in such a way that the principles of public international law, rules around treaty interpretation, and specifically the norm of sovereign immunity, are elevated to a higher plane than any consideration of the progressive development of human rights jurisprudence.
It might be hard to assert that the outcome of the case could have been very different, given that the prevailing case law, notably the 2012 decision of the International Court of Justice in the Germany v Italy (Immunities) judgment, confirms that states remain immune from suit in the courts of other countries, even when the most serious violations of human rights, those of a supposedly jus cogens nature, have been accepted as fact, and where no other avenue for compensation or redress exists.
That week’s public international law seminar was on immunities, so with minimum notice we took the new judgment as the point of discussion. The response, particularly from students familiar with the ECtHR, was unanimously grim. The blunt dismissal of the applicants’ claims (four in total, with one having
died since the Lords’ judgment), with no effort on the part of the Court to even attempt to balance the rights of the individual to redress for torture, is quite disheartening.
In holding that the applicants’ article 6 right (to a fair trial and to redress for violations) had been justifiably restricted, the Court found the UK’s actions to be both legitimate and proportionate (paras 188-9). The legitimate aim was that of the promotion ‘of comity and good relations between states’ by respecting sovereignty, while the restriction on the applicants, since it reflected ‘rules of public international law on state immunity cannot in principle’, have been disproportionate.
With respect the human rights against which such considerations should have been balanced, the Court failed to go into much detail, the only notable exception being that the judgment did give space to consideration of various statements from the UN’s Committee Against Torture, urging the necessity that states give torture victims the possibility of taking such civil claims. Rather than side with their counterparts (policy wise, if not formal) the Court deferred to Bingham’s dismissal of the Committee’s pronouncements as being only ‘of slight legal authority’, on the grounds that the International Court of Justice has yet to make an equivalent assertion.
Very frustrating in the Court’s judgment is this circular use of sources: national courts are asserting that they do not have the power to override international law’s respect for sovereignty by declaring exceptions to immunity not identified by international tribunals. In turn the international courts justify their subjugation of accountability to sovereignty by reference to the lack of domestic jurisprudence categorising such exceptions.
What’s particularly galling is that there is but one substantive dissent, that of Judge Kalaydjieva, who stated that she ‘not only share[s] the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find[s] it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment […] but not concerning redress for torture – as in the present case.’
This is in sharp contrast to the judges of the International Court of Justice in the 2012 Immunities case where Bennouna, Yusuf, and Trindade J each gave scathing dissents. Trindade concluded a powerful 100 page dissent by stating that ‘my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment.’ [His emphasis.]
In a statement that directly reflects the facts in Jones, Bennouna stated that ‘it is only in exceptional circumstances — when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form — that a State could lose the benefit of its immunity before the courts of the forum State. The right of the individuals concerned to have access to justice in their own country would then take precedence, where the State in question had refused to submit to the fundamental principles of law — on which, moreover, it was itself relying.’
One should expect that a human rights court would have at least taken some of these dissents into consideration. On this record it looks like the ICJ is the court to which human rights activists should be looking for support, while the European Court of Human Rights [my emphasis], is withdrawing into a dull public international law realm of Westphalian obeisance. In response to the judgment, one of the applicants’ lawyers contextualized the decision with the claim that ‘Strasbourg is increasingly reluctant to rule against the UK Government because of Westminster’s “hostility” to the European Court of Human Rights’.
For now I want to briefly stress some of the key problems that this judgment leaves us with. The first concerns the notion of ‘jus cogens’. At para 93 the Court claimed that there is ‘no conflict’ between jus cogens laws, such as the prohibition of torture, and the rules of state immunity. This is absurd. Of course there’s a conflict. If there weren’t a conflict then we wouldn’t have needed a judgment to figure out which rule of international law trumps which. As to whether jus cogens actually means anything in practice, other than being a fancy label, it’s difficult to figure it out but it doesn’t appear to bring anything substantial to the meaning of the prohibition of torture.
The Court, at para 176, noted the UK government’s argument that, ‘the rule of State immunity did not authorise or condone torture and was therefore not incompatible with the prohibition of torture’ on the grounds that ‘It merely diverted any breach to a different method of settlement.’ This brings us to a second problem. There is ‘no different method’ in existence. The European Court is the court of last resort.
Finally, at para 187 the Court, in setting out its stall on the assessment of the case, notes that it would be inconsistent ‘with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons.’ The judgment then proceeds to remove from the jurisdiction not just of national courts, but of the European Court itself, the whole range of civil claims on torture committed in other countries by state officials, and does indeed confer immunity from civil liability on the entirety of that category of persons. This is rationalized by reference to public international law, to which the ‘Convention enforcement bodies’, have hereby decided that they are subservient to, and which they claim they can neither restrain nor control.
In recent weeks, colleagues in Ireland had been pressing for a Ministerial led corporate trade mission to the Gulf to raise issues of human rights concern, including around torture and fair trial. The Minister concerned, Richard Bruton (Jobs, Enterprise and Innovation), took to the paper of record to pen a response to the naive, the blind, and the deaf, explaining that to raise such concerns with the Sheikhs would serve no purpose other than to sabotage our capitalists’ plans for profit. On 23rd January he wrote: ‘These people need to get real. To do as they suggest would seriously undermine our basic objective on these missions. Either we are serious about delivering the exports and investment we need to provide employment for our people or we are not.’
I’ve referring to this spat since it seems to mirror the attitude that has been shown by the European Court in Jones. My reading of this judgment is that the Court has, in light of the British government’s threats to withdraw from the Convention framework, told human rights activists, and torture victims, that they too need to ‘get real’, since to do as they suggest, and push for accountability, would serve only to antagonize the British political elite, and to undermine the objectives (the existence?) of the Court itself.
In the current edition (232) of Viz, one of the stalwart characters, Roger Mellie – The Man on The Telly, is shown on his return to Fulchester, having premiered his Road Show gig in Dubai. The punch line has Roger in the shower at the gym, his back bloody and lacerated, after having been whipped by the Emirati’s police.
Torture in the Middle-East, whether perpetrated by British soldiers, or against British citizens, has been normalised, tolerated, and to a great extent removed from the sphere of law. Given the failure of our judicial institutions to strive for progress on the problem of impunity for torture, its lucky we still have Viz then, reminding the rest of us, as has been its wont, to ‘Get Real’.
Michael Kearney is a Lecturer at Sussex Law School