Yesterday a Private Members Bill was introduced in the House of Lords by Lord Archer of Sandwell QC, former Labour Solicitor-General. The bill was drafted by a human rights organisation REDRESS (www.redress.org) which has worked for 20 years to eradicate torture and force governments to carry out their obligations as a signatory to the UN Convention against Torture.
Briefly, the bill sets out an exception to the 1978 State Immunity Act. This Act stipulates that no country has the right to interfere with the jurisdiction of another country. However there are a few exception mostly to do with commercial law. The Torture Damages Bill argues that there must also be an exception for the intolerable practice of torture. Thus any torture survivor (of which there are many thousands in the UK alone), who has access to the UK lawcourts should be able to bring a case for damages against a state and its agents who have been responsible for torture and who hitherto have refused to consider the case within their own legal systems.
ALL peers spoke in favour of the bill and many harrowing testimonies were repeated in various speeches (www.publications.parliament.uk/pa/ld200708/ldhansard/index/080516.html) . However, the Minister – Lord Hunt of King’s Heath- who wound up the debate while not opposing the bill went on to spell out some of its drawbacks: even if a State were judged guilty in a UK court of law it would be impossible to enforce the judgement – seizure of assets might result in retaliatory action. In additon since State Immunity is a fundamental principle of International Law even if this bill were to be enacted in the UK there might be further difficulties.
Our answer to this is extensive research shows that torture survivors have a desparate need for the awful wrong done to them to be acknowledged publicly. Compensation in the form of money is a far lesser priority. These victims have a right to justice and part of this is a formal statement of their torturers’ actions and culpability.
We would further argue that International Law is a living, changing animal – constantly evolving to meet the demands of ever more complex societies. It is by no means inconceivable that the principle of State Immunity would in due course admit the exemption of torture. If the UK were to take this courageous step -who knows what could follow.
We will fight on.
I think that the idea of state immunity and national sovereignty must be impaired by the advance of human rights. What is happening in Burma is a good example of where, in my opinion anyway, the right of other states to intervene forfeits the sovereignty of the Burmese government. This is a tricky area, and a can of worms is potentially opened, but I welcome the movement that you describe here. The bill would get my vote.
In response to Stuart, I am wondering what people mean by state power must be set aside to protect people’s human rights. I have never, ever, ever heard of a state going to war to protect anyone’s human rights. It just doesn’t happen as we see in all those examples that get endlessly trotted out (Rwanda and now Burma). What this really means is that certain states want to make use of their overwhelming military dominance to interfere in other states while convincing themselves and everyone else that it is in the name of human rights, as we are every day reminded with the Mesopotamian hell-disaster.
I can’t help but suspect that it would open the door wide to some very embarrassing consequences as our closest ally blatantly tortures British residents in gross violation of all norms of human rights. So I suspect it will be killed.
As much as I am sympathetic to the cause of establishing justice for torture victims, I suspect it will set an unhealthy precedent. I can’t help but feel that it is really better to not abuse the law in this way for somewhat marginal benefits. Can we not extend the remit of an international court to cover these cases?
Hi Chris. The alternative is to say that national sovereignty is supreme and inviolable. That makes everything really rather simple and easy. Everyone knows where the lines are drawn. Sadly, it also means that a state can do what it pleases to its own people. If the junta want to let their people die of starvation and disease then so be it.
No-one has any easy answers, as I accepted in my original comment.
First of all I don’t believe there is ever any justification for torture. However, I have my own fears about the proposal. The principle one being that, given that we’re not in that country and don’t have access to forensic information, how do we guard against miscarriages of justice.
Baroness D’Souza,
nil desperandum – it is better to try and fail than not to try at all.
As a supporter of Amnesty International I am broadly in agreement with this approach, although I’m not certain how their specific views would compare with that of the charity you mention. I suspect that AI would want the ‘International Criminal Court’, which the US opposed, to be the court of ultimate sanction in this matter.
I have some sympathy with Chris Dornan on this issue, however. If the US would not support the ICC, then I can see that they would find ways to circumvent and undermine the proposals to bring this legislation into ‘English Law’. And one has a suspicion that if this remedy were available in British courts, some other countries might push human rights down their list of priorities, as they would assume that the UK courts would be available to deal with human rights abuses.
The capacity of the English legal system would tend to cause a log-jam of cases, so one suspects that only certain ‘test cases’ with the ability to set precedents would in reality be heard.
Although it is always interesting to hear of developments which would make the US approach of ‘outsourcing’ torture so as not to take place under its jurisdiction, and re-defining certain torture practices as ‘enhanced interrogation techniques’, less prevalent than they are.
Maybe this proposal just needs some more work and engagement with those who would have to implement it, bilateral discussions with other countries, and an understanding of whether global organisations such as the UN would be able [or willing..] to help enforce it.
I think it is a very good idea to make torture by another country’s officials prosecutable in England, even to the extent that compensations are paid from assets of that state in this country. They may think more carefully about torture as a means of politics. It certainly is much better than going to war against those countries (which would mean wasting a lot of innocent lives and assets).
However, it may have the effect that assets are withdrawn from this country for fear of financial reprisals. The question is: Is the UK ready for people to withdraw their funds and invest them somewhere else? Does our morality go so far as to accept the economic consequences?
I believe it should do but I also believe that it was not only a grave mistake but even a crime to invade Iraq and that the government should be held accountable in front of, if not a British then an international war crimes tribunal. How could we justify to prosecute a (foreign)government that tortures its own people but not prosecute a government(our own) for killing and maiming people in another country? That, frankly, would make no sense on a moral level. And if we don’t act for moral reasons why should we try to help torture victims to get acknowledgement or compensation? So, I assume we would be opening a can of worms, which is ok as long as we are aware of it and do it wholeheartedly.
It has been suggested that the benefits of the Bill would be “marginal”. However, for many torture survivors, having the opportunity to tell their story and having society acknowledge the injustice they have suffered can provide a sense of closure and re-empowerment.
In response to comments on state sovereignty and concerns that international relations would be damaged, serious violations of international law such as the prohibition of torture are no longer regarded as falling within the sole domain of the state. Rather, the absolute prohibition of torture imposes obligations, and the international community as a whole has a legal interest in protecting such rights. The offending state cannot, therefore, assert state sovereignty to avoid responsibility for torture and the forum state is thus permitted to inquire into allegations of torture by foreign states. Therefore, notions of state sovereignty have changed and, in the case of the prohibition of torture, an exception to state immunity would actually be consistent with state sovereignty rather than harmful to it. The Bill specifically provides for the exhaustion of domestic remedies: it will only apply when no adequate and effective remedy for damages is available in the foreign state in which the torture is alleged to have been committed. Therefore, if foreign states do not wish to be sued in the English courts, they should open up their own legal systems and provide remedies to torture survivors. This would be in line with the obligations of all states not to torture, to prevent torture, and to provide reparations where torture has occurred. As the Bill’s coverage is neutral, in that it does not single out one particular state for attention and, in this way, de-politicizes the process. Also, the Bill’s definition of torture mirrors the criminal definition of torture in English law (in section 134 of the Criminal Justice Act 1988). Therefore, it would be for the English courts to determine what constitutes torture and whether, for example, ‘waterboarding’ fell within the scope of the Bill.
The doctrine of forum non conveniens would operate to stay proceedings where there is another available forum, with competent jurisdiction which is the appropriate court to hear the claim. There is also a limitation period of six years within which a claim must be brought.
It has been suggested that the remit of the International Criminal Court might be expanded so as to cover such cases. However, the ICC’s jurisdiction is criminal and we are concerned here with creating a civil remedy for torture survivors. In any case, (a) the ICC can only prosecute crimes occurring on or after 1 July 2002; (b) not all countries have ratified the Rome Statute of the ICC; and (c) the ICC only has jurisdiction over the gravest violations of international law, such as genocide, war crimes and crimes against humanity.
The issues surrounding torture, its acceptance or repudiation are, at the highest level, one of culture and the moral framework within a society itself.
Historically this was at a low for the Roman Catholic Church because of the Spanish inquisition. The inquisition moved on into Germany with even more intensity.
http://en.wikipedia.org/wiki/History_of_the_principle_of_inquisition_in_German_criminal_law
Its use depends on the nature and perception of the threat to those who practice it, their own moral framework or lack of one overriding their humanity. It should never be used as a matter of everyday practice or procedure, which unfortunately it is.
Should torture be used per se? Possibly! I certainly would not want to be in the loop that authorised it. If the lives of many were in immediate and imminent peril and a perpetrator caught, what should law enforcement do?
Try and persuade the individual in a civilised way to provide answers? Yes, but failing this what should they do? Tickle their feet?
America is suffering a high degree of introspection at the moment:
http://www.youtube.com/watch?v=Gt8v_GAgOK4
Having listened to some of Barack Obama’s campaign speeches on C-Span it is reassuring to know that the Democrats are committed to closing Guantánamo Bay and outlawing Water-Boarding. However, domestic politics are dominating the agenda as one might expect with Human Rights only mentioned as part of the general rhetoric.
As usual a blogload full of thoughtful,provocative and informative responses. I guess the only useful observation, thus far, is that black and white policies on torture can no longer prevail and have, in the past, only served to help avoid detailed discussion and potential resolution.
If we can now understand better how to define torture, how to persuade the wider world of its unacceptability BY making it an offence triable by a court of law (whether that be in the country where it takes place or in the UK subsequently)and how to promote a culture where torture is perceived as not only a crime but pretty ineffective.
Ask any security body and the answer will always be that the only way to prevent terrorism is by means of intelligence gathering and analysis. Detention and torture do not assist the early detection and prevention of terrorism.