After a very tiresome attempt by the UK to manipulate what has been clearly established law, Strasbourg reasserts (On February 28, 2008) the following:
"Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation...as the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct...the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3" (para. 127).
A number of intriguing discussions have taken place in the blog-world (see invisiblecollegeblog.com) over the ECHR's judgment in the case of Saadi v Italy (following the jurisprudential practice over Article 3 and the absolute prohibition on torture and the absolute obligation of non-refoulement upheld in Soering v United Kingdom). I was amused by the possibility of marrying these forces for the protection of a terrorist's right to life and the right not to be tortured in the present climate that Western societies are experiencing, with the ongoing elaboration of anti-terrorist legislation (both directly and indirectly speaking, i.e. administrative detention, restrictions on immigration and asylum law, etc) and the discussion I have already undertaken in the context of the AG's opinion on Kaadi in a previous post. This includes equally theoretical questions on objects and subjects (identity and the other) in terms of the 'securing humanity' discourse.
The question is whether the clash between Article 3 ECHR (that of the person subjected to a deportation order) and Article 2 ECHR (that of the population of any of the European capitals that could become the victims of a terrorist attack) has hereby been resolved? The Court asserts that "the prospect that [a person] may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill-treatment that the person may be subject to on return" (para 139). A fortiori, there no "balancing exercise" (between the obligation of non-refoulement and the "risk" or "dangerousness" of the person) to be admitted, not at the level of asserting the facts and indisputably not at that of applying the law. However if this is the case, I would ask whether these examinations are not made futile by the ongoing developments in national terrorist legislation? One could also observe this parallel by asking whether this not just another incident of 'the left hand does not know what the right hand is doing'?
The ramifications that could logically be expected are nuclear; namely, a call to review all existing and developing national terrorist legislation (or even a drafting of a more detailed common anti-terror legislation and Brussels-based enforceability mechanisms) and a reconsideration of a notable number of ongoing cases for the deportation of those persons responsible for a "public emergency threatening the life of the nation."
There is a clear lack of legislation in the form of directives or regulations that specify the requirements or limitations on the substantive scope of the provisions. Inoperative traits on the political and social levels are doomed to continue at this pace. A number of penetrative conclusions have come out of recent research in the field of comparative law and the law of the European Union pointing to the fact that the national interpretation, transposition, and implementation of EU legislative measures shows an unspeakable number of discrepancies and divergences amongst member states (even, and predominantly, between the civilists). In light of these growing divergences, and an absence of an action plan for reconciliation, it may be difficult to ensure, if such legislation were issued by the Community in the future, that it is implemented in an effective and unified manner.
I would be intrigued to hear from those that perceive the current state of the law (both nationally in theUK and regionally) as sufficiently descriptive and instructive for curtailing the tendencies that characterize emerging anti-terrorist legislation. I would also be interested to digest some new interdisciplinary perspectives on the developments of this legal framework and the preventative mechanisms that we aspire to construct in order to accommodate these actors in the current national, regional and international legal orders.Without further pontification, I concede that it is a very burdensome and extended endeavor.
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3 comments:
I suspect part of the difficulty will be in defining torture. Waterboarding still seems to escape the classification. I hope it's different in the EU.
I appreciate your mention of problems caused by definition. I have to say that in my mind this opens a whole new window on the question of 'terrorist hospitality'.
Assuming that a terrorist is a 'terrorist', or a (risk of) threat of 'terrorism'. What is the protection modern day "democratic societ[ies]" (to employ the Strasbourg phraseology) are willing and able to afford such individuals at the price of 'endangering', if you will, whole communities/societies?
The difficulties in defining torture have resonated for as many years as the international community (i.e. through CAT) and Europe (i.e. through ECHR) have been faced with the rather superficial and at times appearing (how presumptuous of me) negligent legislation that was drafted for the purpose of prohibiting torture by both direct and indirect violation.
What is more striking as of recent development has been the infamous Article 15c of the Refugee Qualification Directive on which I intend to put together a comprehensive post in the next few weeks. This true bearer of a number of Pandora's boxes has yet to open any of them and remaining a mind-boggling mystery. It involves the widening and extension of what would qualify a particular individual as a "refugee" and afford him the appropriate protection. This englobes elements of international tribunal jurisprudential practice, IHL and international HR law instruments and judgments and much much more. All of them branching off the one tricky but cunning little phrase, "life or person". Again, the ramifications could and should be nuclear. We can only wait and see.
Together, i.e. torture instruments (legislative and jurisprudential), refugee and asylum law developments, and an odd number of terrorist legislative attempts, mainly nationally, have continued a legacy we have become accustomed to, i.e. disjunctive development on parallel grounds of matters and questions that require intrinsically to be regarded as one inseparable part and parcel of the modern-day cure to the 'plague' of terrorism.
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