European Court of Human Rights to Decide Saadi v. Italy

The following is a guest post by Sonya Sceats, an Associate Fellow in International Law at Chatham House in London.

Tomorrow could be the end of the road for the UK’s long campaign against a ruling by the European Court of Human Rights in Strasbourg which prevents the removal of terror suspects to countries where they face a ‘real risk’ of torture.

The Court is due to deliver judgment in an important case brought against Italy by a Tunisian national who is resisting deportation on the basis he could face torture in his homeland where he has been sentenced in absentia for terrorism-related offences. The UK has put its own arguments to the Court to try and secure a more relaxed approach in these sorts of deportation cases where national security is at stake.

The prohibition of torture is one of the very few ‘absolute’ human rights, meaning that international law permits no exceptions to it — this total ban is considered an iconic achievement of the international human rights system. However, the increased threat of international terrorism has placed the ban under increasing pressure in recent years, including from states like the US and the UK which hold themselves up as proud architects of this system.

For the UK, a key sticking point is a 1996 decision by the Court which blocked the UK’s efforts to repatriate a supporter of Sikh separatism to India; there was strong evidence he would be tortured by Punjabi security forces and the Court held that parties to the European Convention on Human Rights must not deport anyone if they face a ‘real risk’ of torture upon arrival. Crucially, the Court underscored the universal nature of this protection, rejecting the UK’s arguments that an exception should apply because the individual concerned, Mr Chahal, was suspected of involvement with terrorism.

For many years now the UK Government has voiced dissatisfaction with this decision. It believes that the Chahal case goes beyond what the framers of the Convention intended when they drafted the torture prohibition (providing simply that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’), and that it frustrates legitimate security policies in a post-9/11 world.

The UK Government has mounted a legal assault on the test for deportations developed by the Court in the Chahal case. It has urged the Court to recognise that the torture ban is not in fact absolute in such cases and that states should be permitted to weigh the risk of torture abroad against the risk of terror attacks at home.

Tomorrow’s judgment in the case of Saadi v Italy should answer these arguments one way or the other. The Court is widely expected to reject the UK’s submissions that European states should be permitted to use a ‘balancing’ test when deciding whether to deport dangerous people to countries with poor track records on torture. If it does not, there is sure to be an enormous backlash in parts of the international community –- critics will accuse the Court of irreparably compromising the ‘absolute’ nature of the torture ban with the likely consequence that more people will be removed to face torture in other parts of the world.

Regardless of the outcome tomorrow, this episode tarnishes the reputation of the UK as a leader in the field of human rights. In the past, the UK was known for the emphasis on human rights in its foreign policy but in recent years it has developed a less enviable reputation as an innovator of bad practice. For example, it has adopted the extremely controversial practice of agreeing ‘diplomatic assurances’ with states such as Jordan, Libya and Lebanon which provide that deportees will not be tortured on return. Human rights activists say that there is no real possibility of monitoring whether the countries concerned will keep to their promises. This latest attempt to render even more elastic the rules on torture should thus be a source of acute concern.