In December 2004, the House of Lords handed down its decision in A and Others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department.[67] The case concerned foreign terror suspects detained in Belmarsh prison. As is well-known, the Court determined that the detention was discriminatory and disproportionate as nationals suspected of terrorism were not also detained.[68]
As a result, the relevant provisions of the Anti-Terrorism, Crime and Security Act 2001 (UK) were repealed — demonstrating that the declarations of incompatibility that the judiciary are empowered to issue under the Human Rights Act 1998 (UK)[69] are not toothless. ‘Control orders’ that impose severe restrictions and that are applicable to all nationals were instituted instead,[70] however. Thus, along with Chris Michaelsen, Chapter 7 in this volume, we may ask whether the Court should have gone further in its decision and questioned the characterisation of the terrorist threat as an emergency that permits such intrusions. In doing so, we note that, as Colm O’Cinneide, Chapter 15 this volume relates, control orders have also been subjected to searching review by the courts. The present chapter looks at the way in which detention was characterised in the context of Belmarsh — as a semi-black hole into which only foreigners could fall and from which they could potentially escape, provided they were willing to run the risk of any consequences when they were returned home.
Detention in Belmarsh prison shared some characteristics with the black hole of Guantánamo, but there were some crucial differences in the way in which the UK tried to justify the detention. The UK’s arguments have a decidedly more legal character than the simple and rather rhetorical characterisation by the US of the struggle against terrorism as a ‘war’. The UK has attempted to characterise terrorism as a threat to the life of the nation that permits derogation from certain rights.[71] This is, in fact, a questionable characterisation, although Lord Hoffmann was the only judge in the Belmarsh detainees’ case willing to take on the executive on this issue.[72] However, it is less extreme than the stand taken by the US.
Moreover, unlike the US, which is determined to hold persons in Guantanámo indefinitely, until such time as the ‘war on terror’ is over, apparently the UK was and remains keen to get rid of the Belmarsh detainees. Detention was to be indefinite only if the detainees could not be ejected. The obstacle in the path of the UK acting as it wished and deporting foreign suspects, was that the suspects feared they would be tortured upon return. The guarantees against refoulement in Article 3 of the Convention against Torture,[73] and implicit in Article 3 of the European Convention on Human Rights[74] and Article 7 of the ICCPR prevented the UK from returning them. And yet, these suspects had no legal right to be in the UK, thus detention was — as the government saw it — the only option, unless the suspects volunteered to return, or the UK was able to rely on diplomatic assurances to the effect that the person would not be tortured. It was argued before the House of Lords that Belmarsh prison had only three walls, since foreigners could purportedly elect to go home, whereas for nationals the prison would most definitely have four walls.[75]
Since the ‘choice’ for the individuals concerned is really no choice at all, and the diplomatic assurances on which the UK seeks to rely have been said to have no legal worth[76] (although they have been accepted in some UK decisions),[77] the detention was really just like the black hole of Guantánamo. Taking the space analogy a little further, we might say that the alternative of deportation pursuant to a diplomatic assurance is like a white hole. Unlike the black hole that sucks in all matter, the white hole is never reached as it pushes all matter away.[78] Exit from Belmarsh prison was impossible in many senses. Deportation would often not be effected despite the UK government’s best efforts. There is also no real guarantee that torture will not occur. Finally, deportation is ineffective as a tool against terrorism.
On the question of effectiveness, some of the Law Lords (one of them a Lady) commented on the unlikely utility of deportation.[79] As Baroness Hale asked, ‘[w]hat sense does it make to consider a person such a threat to the life of the nation that he must be locked up without trial, but allow him to leave, as has happened, for France where he was released almost immediately?’[80]
Yet it appears that the UK is hell-bent on pursuing the expulsion of the Belmarsh detainees and others like them. Indeed, the UK is so determined, that one senses a ritual purge is taking place. The state, as in Foucault’s description of the scaffold, displays its power,[81] even though the effectiveness of the measure in deterring or preventing future crime is highly questionable.
It is tempting to see the UK as simply reckless as to whether torture will eventuate — that it regards expulsion to a possible place of torture as an appropriate punishment. Certainly, the UK’s latest attempt to secure its objective suggests that the UK government believes that, given the perceived risk to the UK community, the risk to the individual terror suspect should be downplayed. The UK has led the intervention in the case of Ramzy v the Netherlands before the European Court of Human Rights.[82] The intervening governments argue that the Court should read down the absolute prohibition on torture and related non-refoulement obligation so that it is no longer absolute, but is consonant with the narrower obligation of non-refoulement set out in the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’).[83] The governments point out that non-refoulement has been read into Article 3 of the European Convention on Human Rights, whereas the Refugee Convention expressly denies refugee status to persons who act contrary to the principles and the purposes of the UN.[84] (And of course, according to the UN Security Council, terrorism is now considered to be contrary to these principles and purposes.[85]) The intervening governments argue that ‘[i]n those circumstances, it is difficult to see how those who negotiated and agreed upon both Conventions can have intended that that position under the 1951 Convention should effectively be reversed by interpretation of Article 3 of the Convention.’[86]
This argument is seriously misguided. The submission seeks to pull a dynamic interpretation of provisions that are silent on the question of refoulement back to the notion that there are some people ‘unworthy’ of protection. Article 5 of the Refugee Convention preserves the more extensive rights that refugees may have under other instruments, and international law has moved on since 1951. The Convention against Torture now expressly prohibits refoulement to a place of torture, on the basis that notions of worthiness are anathema to human rights law. The older and newer law are not incompatible. It is perfectly consistent with the Refugee Convention to exclude someone from refugee status, but to refuse to return such persons to a place of torture because of a recognition of common humanity. The underlying rationale for each position is actually the same. Refugee status is about avoiding complicity in persecution and it is therefore wrong to give ‘safe haven’, in the sense of giving a persecutor the particular rights that attend refugee status, or to deny a request for extradition in the case of someone accused of a crime. It is equally necessary to avoid complicity in the erasure of humanity that torture inflicts.[87] The best solution is to prosecute or extradite for the purposes of a prosecution.[88]
In a further attempt to counter the absolute nature of the prohibition on refoulement to a place of torture, the intervening governments make arguments about the standard of proof. They point out that the wording of Article 3 of the Convention against Torture, ‘substantial grounds for believing that [a person] would be in danger of being subject to torture,’ is open to interpretation, while the standard of proof in a prosecution — beyond reasonable doubt — is high.[89] The governments then argue that they have also to be concerned about the risk to the lives of persons in the community. Thus, it is argued, they need to undertake a balancing act between the rights of citizens and others living in the community, on the one hand, and alien terrorist suspects on the other.[90] In this balancing act, the active duty to protect the right to life of the people in Britain prevails over duties of non-complicity in relation to the prohibition on torture.[91]
This strategy is deeply concerning. Indeed, it may be more concerning than the US’ attempt to justify torture by US officials. Essentially, the UK’s intervention seeks to subvert the entire philosophy underlying human rights — that rights are universal, indivisible, interdependent and inter-related.
[67] Belmarsh [2005] 2 AC 68.
[68] Ibid (Lord Bingham) (lead judgment) [68]; (Lord Nicholls) [83]; (Lord Hope) [132]‑[139]; (Lord Scott) [155]‑[160]; (Lord Rodger) [189]‑[190]; (Baroness Hale) [228]‑[239]; and (Lord Carswell) [240].
[69] Human Rights Act 1998 (UK), s 4.
[70] Prevention of Terrorism Act 2005 (UK), ch 2.
[71] Art 4 ICCPR. Note that art 9 is not listed as a non-derogable right, however, the Human Rights Committee has stated that art 9, paras (3) and (4) are also non-derogable as they underpin rights that are listed as non-derogable. ‘In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.’ Human Rights Committee, General Comment No 29 above n 29, [16] and fn 9.
[72] Belmarsh [2005] 2 AC 68, (Lord Hoffmann), [91]‑[97].
[73] Above n 59.
[74] European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (entered into force 3 September 1953, amended by the various protocols).
[75] Belmarsh [2005] 2 AC 68, (Lord Nicholls) [81].
[76] The Special Rapporteur on the question of torture is particularly clear on this point. In his first report to the UN Commission on Human Rights, the Special Rapporteur, Manfred Nowak, gave a summary of his presentation at a meeting of experts discussing possible guidelines for diplomatic assurances. In addition to the fact that the principle of non-refoulement is non-derogable, he included the following concern. ‘Diplomatic assurances are sought from countries with a proven record of systematic torture, i.e., the very fact that such diplomatic assurances are sought is an acknowledgement that the requested State, in the opinion of the requesting State, is practising torture. In most cases, those individuals in relation to whom diplomatic assurances are being sought belong to a high-risk group (‘Islamic fundamentalists’).’ Further, he says, ‘[d]iplomatic assurances are not legally binding. It is therefore unclear why States that violate binding obligations under treaty and customary international law should comply with non-binding assurances.’ He concludes by saying ‘diplomatic assurances with regard to torture are nothing but attempts to circumvent the absolute prohibition on torture and refoulement …’ Report of the Special Rapporteur on the question of torture, Manfred Nowak, E/CN.4/2006/6, [31]‑[32].
[77] See the discussion in O’Cinneide’s chapter in this volume (Chapter 15).
[78] The author takes no responsibility for accuracy of the scientific explanations underlying the conceits that link the various species of detention examined in this chapter. For a basic description of the science, see <http://www.crystalinks.com/wormholes.html>.
[79] Belmarsh [2005] 2 AC 68, (Lord Bingham) [43] approving the appellant’s ‘central complaint’ that ‘the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem’ (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large).
[80] Ibid (Baroness Hale), [230].
[81] M Foucault, Discipline and Punish: the Birth of the Prison (trans A Sheridan) 48‑65 (NY: Pantheon Books, 1977).
[82] See Observations of the Governments of Lithuania, Portugal, Slovakia and the United Kingdom Intervening in Application No 25424/05 Ramzy v the Netherlands (available at the International Commission of Jurists’ site <http://www.icj.org/IMG/pdf/UK_observations_Ramzy_case.pdf>).
[83] Convention Relating to the Status of Refugees, 606 UNTS 267, (entered into force 22 April 1954).
[84] Art 1F(c) Refugee Convention, ibid.
[85] SC Res 1373, UN Doc S/RES/1373 (2001), [5].
[86] Above n 82, [8]‑[9.3].
[87] See P Mathew, ‘Resolution 1373 – a Call to Preempt Asylum Seekers? (or ‘Osama the Asylum Seeker’)’ in J McAdam (ed), Forced Migration, Human Rights and Security (Oxford: Hart Publishing 2008) 19, 45‑6.
[88] The Convention against Torture is one of the building blocks allowing prosecution to occur, as art 5 establishes a semi-universal jurisdictional basis for prosecution of torturers, and the establishment of the International Criminal Court is perhaps the cap-stone in the architecture of international prosecutions.
[89] Above n 82, [17]‑[26].
[90] Ibid [5] as compared with [8].
[91] Ibid [10].