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The Abu Qatada Judgment Undermines the Fight to End Torture

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The UK for the last 10 years has tried to extradite Abu Qatada, a terror suspect, to Jordan where he faces trial on charges of terrorism. The European Court of Human Rights however ruled last week that such a deportation is illegal because Qatada is likely to face an unjust trial. On these sparse facts, hysterical rights sceptics have reenergised their attack on human rights, as Trojan horse being used to undermine parliament's sovereign will. But it is the human rights community, not panicky politicians, that should be alarmed by the court's decision for it is one in which the fight against torture suffers a mighty blow.

Chief sceptic is Philip Johnston for whom the judgment was an instance of human rights being manipulated by a terrorist to "fool" Britain. Of all the MPs with an opinion on the matter it's unsurprising that Johnston quotes Raab, a fellow libertarian and rights-sceptic. It's serves as evidence of their thoughtless hostility towards human rights that both Johnston and Raab would miss the implications of the case and by such a wide margin.

The court, for present purposes, decided two issues and in doing so, established a far-reaching rule, from which it carved a narrow exception. Most alarmingly the court ruled that extraditions, to countries suspected of carrying out torture, were lawful provided diplomatic assurances had been procured. By deciding so, the court ruled in favour of the UK government and indeed praised the detail and depth of the understanding our government had agreed with their Jordanian counterparts. Put another way, a diplomatic assurance is now all that is necessary, in the eyes of the court, to safeguard a convict from the threat of torture.

This rephrasing is hardly needed to expose the gaping flaw in the court's reasoning. Diplomatic assurances, essentially gentleman's agreements, have now been elevated to the status of substantive rights protections. Far from subverting the will of the parliament, the court have struck a death blow to efforts to expose 'torture treaties' between states, to the effort to uncover the practice of torture and to the effort to condemn States for turning a blind eye. In what is perhaps its most politically deferential judgment yet, the court have relegated all concerns about the torture of terror suspects by placing complete and blind faith in the invisible processes of international relations.

Despite the diplomatic assurance, the court ruled Abu Qatada's deportation would be illegal under Article 6, which enshrines the right to a fair trial. By taking into account the real risk that evidence obtained by torture would be used to incriminate Abu Qatada, the court reasoned that to allow the deportation would be to countenance an "immoral, illegal" and "unreliable" trial and so would infringe Qatada's Article 6 rights. Without the risk of corrupt evidence being used against him, Qatada would have been deported and so potential article 6 infringements constitute a narrow defence to the far-reaching diplomatic assurances rule. It is this narrow exception that has been typically mischaracterised by Johnston and is ilk.

There is rightful consternation among human rights groups. The diplomatic assurances rule amounts to an "alarming setback" according to Julia Hall of Amnesty International, and represents taking "one step forward, two steps back". The "positive development" of the Article 6 exception, she argues, is "eclipsed" by the court's decision to substitute diplomatic assurances for binding legal obligations. States, particularly in the anti-terror context, have eroded prohibitions on torture and the European Court's decision amounts to a 'green light' on securing 'unreliable' assurances in the place of legal guarantees. Human Rights Watch and Liberty have echoed these criticisms.

Several options remain open in the Qatada case. The quickest solution would be to seek assurances that improper evidence would not be used. Alternatively, there is nothing preventing Qatada being placed on trial in the UK and Shami Chakrabati has urged this be done "without delay". Or, the UK government could appeal the European Court's decision. Doing so will add a few more years to Qatada's already seven year internment. It should be noted that Qatada has spent this time in the confines of a jail cell, without charge.

The law of human rights is, at its core, the process of balancing competing demands. Abu Qatada's case is but one example of the effort to weigh the demands of national security against the rights of the individual. With the diplomatic assurances innovation, the court has eased the process of deporting terror suspects to places where the risk of torture is both real and high. In doing so, they have abdicated their apolitical mediating role and devolved responsibility for protecting potential torture victims to the whispered negotiations of governmental corridors.