Saadi — The Ban on Torture Is Absolute

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

The ‘absolute’ nature of the torture ban was affirmed today by the European Court of Human Rights in Strasbourg, thus bringing to a close a long campaign by the UK to dilute the ban in cases involving proposed deportation of terror suspects to countries where they face a ‘real risk’ of torture.

The ruling comes in the case of Saadi v Italy involving a Tunisian national who is resisting deportation from Italy on the basis he could face torture in his homeland where he has been sentenced in absentia for terrorism-related offences. The UK 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 heightened 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 Strasbourg 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.

In the Saadi case the UK Government mounted a legal assault on the test for deportations developed by the Strasbourg Court in the Chahal case. It 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.

The Court today resoundingly rejected these arguments. In a unanimous decision it confirmed that the torture ban applies equally to all human beings, regardless of their conduct, and that European states are not permitted to use a ‘balancing’ test when deciding whether to deport dangerous people to countries with poor track records on torture.

The ruling will come as an enormous relief to anti-torture and human rights campaigners everywhere. The prospect of one of the world’s most respected human rights courts stepping backwards on the torture ban had sparked widespread alarm in recent months. Instead the Court held firm, noting that although states are facing considerable difficulties in protecting their communities from terrorist violence, this should not call into question the absolute nature of Article 3.

This episode, despite its outcome, undoubtedly 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. Although it was unsuccessful, this latest attempt to render more elastic the rules on torture will fuel deep concerns about the UK’s willingness to sacrifice basic rules of international human rights law in the name of counter-terrorism.