13 February, 2010

Torture - allegations of UK complicity

Man's inhumanity to man
Makes countless thousands mourn
from "Man was made to mourn" by Robert Burns (1759-96)

The cruel and hideous practice of torture has been with the human race since time immemorial and considerable ingenuity has been applied to finding new ways of inflicting excruciating pain on a fellow human being.  Attempts to eradicate this evil have been well-intentioned but it seems that little more than minimal success can be claimed since there is unequivocal evidence that torturers continue to flourish in many parts of the world - see here for a reasonable summary of recent uses of torture.  "The torturer has become, like the pirate or the slave trader before him, hostis humani generis, an enemy of all mankind" - (case of Filartiga 1980 US Court of Appeals, Second Circuit).

This week saw the English Court of Appeal (Civil Division) give judgment in the case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65.   This judgment was concerned with whether 7 paragraphs could be included in the court's judgment.  The Foreign Secretary argued that they should not be included since to do so would damage intelligence sharing arrangements with the USA.  This was the so-called "control principle."  The court found against the Foreign Secretary.

Article 5 of the Universal Declaration of Human Rights states - "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."   Those words have been repeated in, for example, the United Nations Convention against Torture or other Cruel Inhuman or Degrading Treatment 1980.    They also appear in Article 3 of the European Convention on Human Rights.

The 1980 Convention defines torture in Article 1 and imposes on States a number of duties including, by Article 2, a duty to take effective legislative, administrative, judicial or other measures to prevent acts of torture.  The prohibition against torture shall be absolute and shall be upheld also in a state of war and in other exceptional circumstances" - see 1980 Convention.  Of course, the 1980 convention is dealing with torture (as defined in the convention) and does not deal with the infliction of ill-treatment falling short of torture, for example, degrading treatment.  This is a major difference between the 1980 convention and the European Convention on Human Rights which does extend its protection beyond the infliction of torture.

The British government claims that it takes its obligations seriously and that it adheres to the law - see Foreign and Commonwealth Office 12th February 2010.

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