Afghan hijackers
Following a court ruling that the Afghan hijackers can stay in the UK, the Sun has launched a campaign calling for Tony Blair to ‘rip up the Human Rights Act‘. This mother of all knee-jerk reactions (in the true style of the trashbloids) wouldn’t change the situation of the hijackers, while depriving British citizens of the ability to vindicate their rights in domestic courts. Why wouldn’t it change their situation?
- The Human Rights Act simply incorporates the European Convention on Human Rights into domestic law (ie allowing you to use it in a domestic court case). The ECHR itself couldn’t be repealed without Britain leaving the EU and the Council of Europe (two different organisations, the Council of Europe has more members), and failing that the hijackers could still appeal to the European Court of Human Rights.
- The United Nations Convention Against Torture also prohibits extraditing people to countries where they could face torture. As far as I am aware there is ‘‘no’‘ method
May 26th, 2006 at 12:57 pm
All these old treaties need re-negotiating if you ask me David. Interpretation of some points of these treaties in the modern world is causing too many problems. The Afghan Highjackers case highlights this. You are not wrong in what you say about there being ‘no’ method (other than ignoring our treaty obligations of course. Perhaps we should re-negotiate a new NATO treaty that supersedes all the above you have mentioned.
PS I’ve replied to your post on Boris Johnson’s blog in case you fancy another stab.
May 26th, 2006 at 4:43 pm
Even if we negotiated a new NATO treaty, this would not allow us to escape our obligations under existing treaties. The only ways to modify or abolish an existing treaty are:
a) Filing a reservation at the time of signing, to which no other parties object (e.g. the USA exempting itself from ICJ jurisdiction over its non-UN treaties). For obvious reasons, this one isn’t open to the UK in either the ECHR or the UNCAT
b) Using an amendment/withdrawl procedure detailed in the treaty itself. IIRC, the UNCAT doesn’t have one, and the ECHR only has Article 15, allowing ‘derogations’ (ie temporary breaches) in times of emergency. Art. 15 isn’t really significant - it is what the government tried to claim as justification for the ‘detention without trial’ policy, but that was rejected.
c) With the agreement of ”’all”’ of the other parties to the treaty. At the moment, the UNCAT has 141 parties, and the ECHR has 46, so the chances of getting this agreement are slim
The problem with ‘ignoring’ international law is that torture (or sending people abroad to places they can be tortured) is actually incorporated into UK domestic criminal law - when the ‘torture flights’ scandal first broke there were serious discussions about airport staff (at airports where the planes refuelled) being jailed under these laws (aiding and abetting torture). Not to mention the International Criminal Court (which can assume jurisdiction over torture cases if national courts are unable or unwilling to do anything).
May 26th, 2006 at 5:12 pm
But doesn’t the Treaty of Rome allow some sort of room for member states where they have NATO obligations? Or is this only in respect of defence policy?
I think if correctly worded (i.e. signatories agree that they abide by this treaty above all others) and correctly incorporated into domestic legislation a new NATO treaty could solve a lot of probems in respect of terrorists claiming their ‘human rights’ are being abused. These highjackers could simply have been packed off to the US for interrogation.
Then again maybe it is just our domestic law that is at fault, is there no offence with regards to landing a highjacked plane? As soon as they touch down are they not guilty of kidnapping? This would be a probelm with enforcement rather than the law.
Maybe this is where most of our problems lie, with enforcement authorities, the compensation culture and with the Judiciary.
May 26th, 2006 at 9:45 pm
As far as I’m aware there is no such ‘NATO exception’ in the Treaty of Rome.
And no, simply stating that ‘this treaty overrides all others’ would not make it the case in a ‘humanity’-type treaty such as human rights or torture. Such clauses only apply between parties to the ‘exclusion treaty’ (if we can call it that) - e.g. France and the UK could agree not to enforce their obligations to each other under the Consular Protection Treaty, but since human rights treaties do not create rights for states, but rights for human beings, the same concept doesn’t apply.
You are right about the enforcement point though - hijacking is a crime under both international law (the Montréal Convention) and UK law (Terrorism Act probably) so there would be nothing to stop these people being put on trial and then put in jail for X number of years. The problem is that instead of doing this, the authorities decided to try and extradite them to a country where they face almost certain death or torture, which is just as illegal as the hijacking itself. Had they just gone for the prosecution, they would have been almost certain to win (in the absence of any applicable defence, assuming sufficient evidence etc. etc.).
May 28th, 2006 at 3:35 pm
Not just the hijacking, as soon as that plane touched down on British soil they were guilty of x counts of kidnap the way I see it.
May 28th, 2006 at 4:13 pm
No, because the ‘hijacking’ (which is a more serious crime) covers that act - you can’t be guilty of two crimes in relation to the same event/action.