Category Archives: Human Rights

Britain, European Court, Government, History, Human Rights, Politics, Society, United Nations

Celebrating 800 years of the Magna Carta: why would Britain contemplate leaving the ECHR?

MAGNA CARTA & ECHR

The 800th anniversary of the Magna Carta will be celebrated in Britain this year. This was the treaty signed between King John and a group of rebellious barons in 1215 that guaranteed British citizens a range of freedoms and civil rights. One of the 25 guarantors of the Magna Carta was the Earl of Winchester, Saer de Quincy, whose ancestors were from France. De Quincy fought King John when he failed to respect the Magna Carta and it all contained, and asked the French prince Louis to lay claim to the English throne. Whilst on a crusade, and far away from home, De Quincy died in 1219.

As a crusader today, De Quincy would probably have been labelled a foreign fighter by the intelligence services and would never have made it to the Kingdom of Jerusalem, having been stopped by border control as he attempted to leave the UK. His attempts to have King John of Runnymede replaced by a French king would have landed him in jail under anti-terrorism laws. And no doubt GCHQ, the intelligence services listening outpost in Cheltenham, would have kept him and his fellow barons under 24/7 surveillance as a threat to national security.

Today Magna Carta (and the accompanying legal presumption of habeas corpus) is celebrated as one of the most important documents in the history of civil rights. It is widely seen and accepted as being the precursor to later conventions that protect human rights and the rule of law, including the UN Universal Declaration of Human Rights, the European Convention on Human Rights and, more recently, the EU Charter of Fundamental Rights. Magna Carta, though, was never meant to protect all the people, whereas the UN and European documents gives equal protection to all citizens, regardless of their status in society.

Today, too, we don’t need charters to protect Barons against the abuse of power by Kings. But we do need laws that protect citizens against abuse of power by governments, and we need not only national laws, but European and international ones.

David Cameron symbolises Magna Carta as the ultimate expression and mantra of British values. While some Tories are now promulgating the argument that the UK should withdraw from the European Convention on Human Rights (ECHR) and return to those traditional values, against the backdrop of the Magna Carta anniversary celebrations their arguments are especially ironic. For example, they strongly accuse the ECHR of limiting the freedom of governments, but King John probably complained too about the Magna Carta unduly restricting his absolute freedom to rule as he wanted. But crucially those in power must be bound by law in order to protect citizens from arbitrary rule.

800 years on, the values and principles laid down in Magna Carta have been embraced by large parts of the world. They have become universal and their shared values are at the core of the European Union as a community of citizens. We should be glad that European courts in Luxembourg and Strasbourg protect us against governments exceeding and abusing their powers, undermining civil liberties and the rule of law.

Fundamental rights, the rule of law and democratic principles enshrined into nationhood are frequently violated in nearly all EU member states. In some cases, the violations are serious and systematic. The current Hungarian government is one of the most egregious offenders. In recent years, the media has been critically gagged, electoral law changed to secure an absolute majority for the governing party, political opponents weakened and the independence and impartiality of the judiciary undermined. But there are also many other examples across Europe: the ant-gay laws in Lithuania, the deportation of Roma people from France, the cruel and inhumane treatment of underage asylum seekers in the Netherlands, and the collective disregard shown for the law and civil liberties in many countries’ counter-terrorism policies.

If we become accepting of tolerating torture, secret prisons, rendition, abduction, and indefinite detention without fair trials and representation then we will lose our moral authority. Such blots tarnish Europe’s status as a shining beacon of freedom and human rights in the world. EU governments must be held accountable for such crimes, especially those that are committed in the name of defending democracy.

That is why we need legal instruments to uphold our common values, even if this means that sometimes national authorities are overruled. EU member states voluntarily signed up to these supranational laws and conventions for good reason, namely because it is the essence of democracy that those in power are bound by laws and that their powers are limited. Whilst that may sometimes be awkward, such checks and balances are the vital safeguards which protect us against abuse of power by the state.

As it happens, these principles are not politically left or right-wing, nor are they alien to modern British culture. Quite the opposite: safeguarding citizens’ rights and the rule of law have their roots firmly established in that ancient, famous document that will be celebrated this year. Magna Carta does not set Britain apart from the rest of Europe. It is the expression and very epitome of the common European values that we have all come to embrace.

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Britain, Government, Human Rights, Intelligence, Military, National Security, Politics, United Nations, United States

Rendition…

(From the archives) Originally posted on April 19, 2012 by markdowe

 MURKY POLITICAL WORLD

EVEN welcome regime change can have treacherous effects, transforming once-needed allies into enemies, or vice versa. And rarely have the risks been more graphically illustrated recently than with Libya, where a former dissident, Abdelhakim Belhaj, is now head of post-Gaddafi Libya’s armed forces. Not only is he suing the British government for allegedly colluding with Colonel Gaddafi to have him forcibly returned to Libya and tortured, but – as of yesterday – he is also taking legal action against a named official: Jack Straw, Foreign Secretary in the last British government.

The drama has unfolded in two stages. The first was last September, when documents found in Tripoli appeared to support claims that British intelligence had supplied information that allowed the CIA to spirit the fugitive Mr Belhaj and his wife back to Libya in 2004. The second has played out over the past week, after a newspaper quoted sources alleging that Mr Straw personally signed off on the operation. The former cabinet minister is accused of complicity in torture and misfeasance in public office.

It is thought to be the first time that such proceedings have been launched against a former Foreign Secretary – which is one reason why the full implications are as yet unclear. That there are implications, however, and potentially serious ones – both positive and negative – is beyond doubt. On the plus side, the latest lawsuit could mean that real light is finally cast on the still-murky subject of rendition and the involvement of the last British government. That rendition – the clandestine detention and transfer of suspects to their own country or third countries – and interrogation under torture were weapons deployed by the United States during George Bush’s “war on terror” is known and largely admitted. What is less known and mostly not admitted – though not expressly denied either – is how much the British government of the day knew about, and actively co-operated with, such actions with its transatlantic ally.

Co-operation may have taken many forms: from supplying information that permitted rendition (as Mr Belhaj’s lawsuit alleges), through facilitating it by, for instance, allowing the use of planes or refuelling stops, to providing the questions and witnessing, or even conducting, interrogations that entailed torture. Such accusations have featured in the testimony of many former British prisoners at Guantanamo, and in most cases the government has paid compensation rather than have the charges aired in court. The justification given is that crucial intelligence methods might be divulged. The suspicion must be, however, that there is another consideration: fear that the real role of the British state in the ill-conceived “war on terror” would be laid bare. If the lawsuits initiated by Mr Belhaj force genuine information about this shameful chapter into the open, that can only be a good thing. The people of this country have a right to know what was being done in their name.

The novelty of Mr Belhaj’s latest lawsuit, however, is that it names Jack Straw personally. And here the arguments become more complicated. Of course, individual ministers – like military commanders – must act within the law, hence the controversy about Lord Goldsmith’s rulings on the Iraq war. But does knowledge of rendition or torture break the law? Or would it take active involvement? What about ordering information to be passed to the US (a major ally)? And does the legal responsibility reside with the minister or the Prime Minister or the government collectively?

In principle, a minister’s responsibility is political – to Parliament – rather than judicial. But are there instances where that line is crossed? It might be salutary for that question to be tested. But if ministers are to be held personally accountable before the courts for their (or their boss’s) decisions, the risk is that no significant decisions – right or wrong – will be taken at all.

ANALYSIS

IT IS NOT UNKNOWN for ministers to be sued in the civil courts. During the last Conservative government, both John Patten and Michael Heseltine were sued – separately and successfully – for libel. The rule of thumb in such cases is that if the minister is found to have transgressed while performing ministerial duties (as was the case with Lord Heseltine), the government covers any damages, while if he was acting in a private or party political capacity (as was Lord Patten) he has to foot the bill himself. This may come as a relief to Jack Straw, the former foreign secretary, who is being sued by Abdel Hakim Belhadj, former leader of the Libyan Islamic Fighting Group (LIFG). Mr Belhadj alleges that Mr Straw personally authorised his rendition in 2004 when he was seized by CIA agents and handed over to the Libyan dictator, Muammar Gaddafi. The LIFG had links to al-Qaeda and Mr Belhadj claims he was tortured by the Libyan regime. He is already suing the British government and its security services.

Rendition is not a crime. The British government’s position on this was set out in 2008 by the then foreign secretary, David Miliband. He said that the agreement this country has with the United States meant permission for rendition via UK territory or airspace would be given only if it accorded “with UK law and our international obligations; and how we understand our obligations under the UN Convention Against Torture”. If rendition is not a criminal offence, complicity in torture is, and in his complaints against Mr Straw and the British government, Mr Belhadj appears to be eliding the two. Yet Mr Straw last year explicitly denied any involvement in torture: “We were opposed to any use of torture or similar methods. Not only did we not agree with it, we were not complicit in it and nor did we turn a blind eye to it.”

It is self-evident that criminal allegations against a minister should be investigated by the police. But civil actions, where the burden of proof is less rigorous, are more problematical. The difficulty facing both Mr Straw and the Government is the reluctance of the intelligence services to contest such accusations as Mr Belhadj’s in the civil courts because it would expose their own officials to unwanted public scrutiny. This is what led to the payment of many millions of pounds in compensation to 16 Guantánamo detainees two years ago. Perhaps it is the prospect of such easy pickings that lies behind this case. In these circumstances, and in the unlikely event of this case ever reaching the courts, fairness demands that Mr Straw be indemnified against financial outlay. Otherwise a dangerous precedent will have been set in a complex and contentious area.

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Britain, Government, Human Rights, Legal, National Security, Politics, Society

Secret courts: The need to balance security with individual freedom…

(From the archives) Originally posted on April 4, 2012 by markdowe

BALANCING SECURITY AND LIBERTY

Keeping citizens safe and free is the primary role of the state. In attempting to achieve this it must properly balance the requirements of national security with the principles of liberty. In Britain, this tension runs like a thread throughout its history. Over the centuries, the executive has sought to arrogate further powers to itself – usually in the name of protecting the people – while Parliament and the judiciary have acted as a check on its presumption. Invariably, parties in opposition believe the government of the day is acting in an illiberal fashion; yet when they take office, they discover that achieving the right balance is harder than they imagined.

When in opposition, the leaders of the two parties now making up the Coalition were vehemently critical of Labour’s plans for a substantial extension of the state’s surveillance powers. But having flip-flopped, the Conservative-LibDem coalition are now making precisely the same supportive arguments as their predecessors. The problem with this kind of volte-face is that it erodes public trust in government, and makes it harder for ministers to do anything in the name of security without being denounced for their illiberal instincts. This is one reason why the Government’s proposals for ‘secret courts’ have received such a sceptical, if not hostile, reception. In a report published today the joint parliamentary committee on human rights adds its criticism, saying that plans outlined in a Green Paper last year to hear some civil actions involving the security and intelligence services behind closed doors are based on ‘spurious assumptions’ and are ‘inherently unfair’.

The Government is seeking to extend the so-called evidence procedures following the claims for damages brought by Binyam Mohamed and others, who alleged that Britain had ben complicit in their mistreatment whilst in Guantanamo Bay. Rather than disclose information that might damage national security, the Government withdrew from the action and paid substantial compensation. Under plans put forward by the Coalition, a judge would see the evidence and hear arguments from special advocates with appropriate clearance. However, no one else – including the plaintiffs – would be entitled to know what was being discussed. This should go without saying that this is not open justice. The question, though, is whether it is justified.

On balance perhaps it is – so long as these procedures are used only in the most exceptional circumstances and not at all in inquests. There are times when the national interest requires secrecy; it would be naïve to pretend otherwise. But Parliament must ensure that the law is properly framed to balance the requirements of fairness and security.

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