A bit more Abu Qatada & human rights

It concerns me, that there appears to be a growing call for the UK to 'withdraw' from the European Convention on Human Rights, and also the European Court of Human Rights.

It is claimed by some that the European Court of Human Rights (ECHR) is 'interfering' with UK law; or that the Human Rights Act (1989) has made English law poorer. Back in August 2005 David Cameron said [...]that if Britain wanted to be able to deport terror suspects, the government should amend the human rights laws "or, if necessary, leave - perhaps temporarily - the ECHR". - BBC News.

This matter has been brought to sharp focus by the case of the 'radical' cleric Abu Qatada.

Sadly, this issue is also confused by those saying we should leave the European Union, as if they were one and the same. There follows therefore a short and brief lesson in history.

In December 1948 the UN General Assembly proclaimed the Universal Declaration of Human Rights

In May 1949 the Council Of Europe was founded by 10 countries. Sir Winston Churchill was one of the founding fathers. You can read a transcipt of the speech he made about the Council of Europe at the Winston Churchill Centre Website.

In November 1950 the European Convention for the Protection of Human Rights and Fundamental Freedoms came into being. The UK was one of the original countries to sign, with the convention coming into force in the UK in September 1953.

Under Article 19 of the above convention the ECHR was founded:

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

Also in June 1987 the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into force.

But let me return to the case of Abu Qatada. He arrived in the United Kingdom in September 1993, having previously fled Jordan and gone to Pakistan.

You can read a detailed account of his history in the UK in the judgement of the ECHR at Strasbourg dated 17 January 2012. (see ECHR Application no. 8139/09)

This is the judgement that has led to the recent 'confusion' about when the three month deadline came to an end.

In respect of the judgement it needs to be recognised that in the majority of the arguments put forward, the ECHR found in favour of the UK Government.

For reasons contained within the judgement the Court unanimously:

1. Declares the application admissible;
2. Holds that the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention;
3. Holds that there has been no violation of Article 3 taken in conjunction with Article 13 of the Convention;
4. Holds that the applicant’s deportation to Jordan would not be in violation of Article 5 of the Convention;
5. Holds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission of evidence at the applicant’s retrial of obtained by torture of third persons.

In terms of it's final ruling of the real risk of the admission of evidence obtained by torture ECHR says in paragraph 285:

In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

Article 15 of UNCAT says:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Paragraph 266 of the ECHR judgement says: ....It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings...

Therefore in this respect of the burden of proof; that Abu Qatadar would not stand trial in Jordan on the basis of evidence obtained by torture, it was now up to the UK Government to demonstrate that they had received such assurances from the Government of Jordan.

The Home Secretary Theresa May is satisfied that she has received such assurances from the Government of Jordan. This was confirmed by the Special Immigration Appeal Commission (SIAC) on April 17, 2012.

SIAC said in judgement that ...in the light of existing and new factors produced by negotiations at the highest level with the Government of Jordan over the last two months, the risk that caused the Strasbourg Court to block, in so far as it could, the deportation of the appellant to Jordan has now been satisfactorily removed. Consequently, the Secretary of State has announced her intention to deport the appellant "on or about 30 th April 2012".

Meanwhile or subsequently, Abu Qatada's lawyers where preparing an appeal against the part of the ECHR's ruling that stated it was satisfied that he would not face torture if he was deported.

This is in relation to Article 3 of European Convention on Human Rights:

Prohibition of torture - No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

In their judgement of 17 January ECHR said on this matter in Paragraph 205. For the foregoing reasons the Court concludes that, on the basis of the evidence before it, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment.

It is now up to the Panel of the Grand Chamber to decide as to whether the appeal was made within the 3 months time-limit, and whether to accept the request for final determination by the Grand Chamber.

Article 43 of the Convention says:

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

This is due process as governed by national and international laws and conventions. Such laws and conventions are there to protect our fundamental human rights.

But not only our rights, but everybody's human rights. Irrespective of what we know, or what we feel about a person, they shouldn't  be treated worse than what we would expect and demand for ourselves.

And what would we expect and demand?

We would expect and demand to be treated in accordance with national and international laws, that our basic and fundamental human rights are respected and protected.

We would expect due process to be followed, which if inconvenient to the agenda of some politicians could not be changed at their whim.

Over 60 years ago great leaders including Sir Winston Churchill founded the Council of Europe, and set in law the European Convention on Human Rights.

I can see no reason that could be reasonably argued that we should now; in haste and desire for political advantage, disengage ourself from these well established international safeguards of all our human rights.

Scotland and self-determination

I recently said that the 'controversy' of the proposed referendum in Scotland on whether it wanted full independence or greater devolved powers was a construct of the Conservative party, to divert attention from the dire state of the UK economy.

The official line duly followed by the mainstream media is that the Scottish Parliament does not have the devolved powers to hold such a referendum, but that the UK government would be willing to grant it such powers, as long as the referendum was held on UK government terms.

Some also argue that it should not be down to the people of Scotland alone, and that any referendum held should be for the entire population of the UK.

Or they say that should the Scottish Parliament 'go it alone' and hold a referendum, this could result in legal action that could tie the process down for many years.

All of which rather conveniently forgets Article One of The United Nations International Covenant on Civil and Political Rights:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

In an article Understanding Self-Determination: The Basics by Karen Paker, she defines self determination as:

The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to "freely determine . . . political status and [to] freely pursue . . . economic, social and cultural development." The principle of self-determination is generally linked to the de-colonization process that took place after the promulgation of the United Nations Charter of 1945. Of course, the obligation to respect the principle of self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.

The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.

The right to self-determination is indisputably a norm of jus cogens [compelling law]. Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes. The term "erga omnes" means "flowing to all." Accordingly, ergas omnes obligations of a State are owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.

In summary Scotland only 'offically' became part of the United Kingdom of Great Britain following the enactment of the Union with England Act of 1707,  just over 303 years ago. Even then Scotland still retained certain powers for its own, such as i.e religion and the law.

Scotland having "a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance" do have the right to self-determination. The right to self-determination does not dictate the outcome, it's not independence or nothing. They would be entirely within their rights in example to decide to remain within the union but have greater powers devolved to them, the so called devo-max option, or what I think the Conservatives call localism.

Scotland you could say has compelling law on its side for the holding of a referendum on self-determination, a fact further supported by the mandate that the SNP gained at the last elections for Scottish Parliament. The attempt by the UK government to force onto the Scottish people a referendum on it's own terms could be said to be interference by an 'outside body' on the basic civil and political rights of the Scottish people.

I suspect this may be a rather strong trump card in the hands of Alex Salmond, First Minister of the Scottish Parliament and Leader of the SNP.