Thursday, March 6, 2008

GAL and Torture: The Saadi Case before the ECtHR

Is there any relation between the absolute prohibition on torture contained in international human rights law and an emerging Global Administrative Law? I think that a case can be made that there is, particularly in relation not to the ban on torture itself, but to the related prohibition on refoulement - defined in Article 3 of the Convention Against Torture in the following terms: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture".

Although there is a real risk of seeking to include too much within the scope of GAL, and in doing so depriving the concept itself of any analytic utility, my view is that the rules on non-refoulement can and should be viewed not only as forming a part of global administrative law, but in fact representing one of the most powerful and truly global rules in existence within that emerging field. The argument runs something like this: in the administrative relation, we have an agency exercising public power, and a constituency whose interests are affected (at least potentially) by that exercise. Administrative law - in one common conception at least - concerns directly the second-order decisional rules that constrain the agency in question, compelling it to have regard to the interests affected by its decisions; in other words, it regulates the administrative relation. Thus, for example, the provision in the Convention on the Rights of the Child which mandates that in all administrative decisions involving children their best interests must be a "primary consideration" (Art. 3(1)), has been viewed in the past as a rule of global administrative law.

Often, deportation decisions are taken by national administrative agencies, who in doing so must respect the rights of the affected individual, and in particular the absolute right not to be tortured. The interest in question, then, is the individual's interest in not being tortured; the rule of non-refoulement can be viewed as a second order rule ensuring that the particular interest in this case is not disregarded by the administrative agency in question (for a detailed study of the notion of "disregard" in a GAL context, see this draft paper by Richard Stewart). The absolute nature of the second-order rule here is a straightforward reflection of the absolute nature of the prohibition of torture.

That both this prohibition and the GAL rule supporting it are absolute was affirmed in powerful terms by the European Court of Human Rights last week, in its judgment in the case of Saadi v. Italy. The case involved a Tunisian national, accused of terrorism-related activities, faced with deportation to Tunisia, who argued that to do so would violate the torture provisions of the ECHR as there was a substantial risk of his being tortured upon his return. The submissions of the Italian Government in the case focused largely on whether or not there was a "substantial risk" of torture in Tunisia, stressing the international treaties that that counrty had entered into, and noting that it had sought and gained "diplomatic assurances" that the rights of the accused would be respected upon his return. It also sought to cast doubt on the evidence drawn from a number of reports by NGOs, such as Amnesty International and Human Rights Watch (paras. 102-116).

Also interesting here was the fact that the UK intervened as a third party in the case, and made a series of far more controversial claims: that the prohibition on torture must be balanced against the right to life of innocent civilians in an age of international terrorism (para. 119); that the prohibition on torture was absolute only for the acting state - it's positive obligation of protection protection against torture in other states must be weighed against "the interests of the community as a whole" (i.e. that an absolute ban on torture should not translate into an absolute ban on refoulement, para. 120); that the threat posed by the accused should be a factor in evaluating the potential for and nature of ill-treatment upon return; and, relatedly that where national security was implicated, the standard of proof required of the accused of possible ill-treatment should be raised from a "substantial risk" to a "more-likely-than-not" test (para. 122). Basically, the UK asked the Court to overturn its earlier judgment in the Chahal case, which, it argued, had - due to its rigidity - "caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures". Which, of course, was entirely the point.

The Court, as noted above, reaffirmed the absolute nature of the first order prohibition on torture and the second order (GAL) prohibition on refoulement in the strongest possible terms. Of most interest to us here is its conclusion at para. 138:

The Court cannot accept the argument of the United Kingdom Government, supported by the respondent Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole... Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule... It must therefore reaffirm the principle stated in the Chahal judgment... that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State.

The Court also rejected the submissions of the Italian Government, noting its past reliance on the work of important NGOs, and challenging the idea that it had received "diplomatic assurances" - although it should be noted that it did not reject the notion of such assurances out of hand, noting only that they would have to examine each case in context to determine "whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention" (para. 148). The judgment is illuminating, however, in that is details exactly what the Italian Government requested and received in claiming that it had such assurances:

[T]he Italian embassy, counting on the sensitivity of the Tunisian authorities on the question, has the honour to formulate, subject to the judicial prerogatives of the Tunisian State, the following urgent request for guarantees, as an indispensable formal prerequisite for the solution of the case now pending:
please give assurances that the fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded;
In addition, the Italian embassy would be grateful if the Tunisian authorities would keep it informed of the conditions of Mr Saadi's detention if he were to be committed to prison.

(Indeed, with a robust oversight mechanism of this sort in place, what could possibly go wrong?)

Also illuminating are the responses received, which, for the Italian Government, constituted "guarantees", the most relevant of which reads as follows:

The Minister of Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.

As the Court rightly points out, however, this is actually not a guarantee at all; rather a statement of why such is not necessary. But I want to end here with what is by far the strongest criticism handed down by the Court, which focuses not on the Italian but rather on the UK Government, expressed in the concurring opinion of Judge Zupančič. He noted that the UK's proposals for shifting the burden of proof "borders on the inquisitorial", before concluding that

there is simply no quid pro quo between “serious threat to the community” on the one hand and “the degree of risk of ill-treatment that the person may be subject to on return” on the other hand. The police logic advanced by the intervening Contracting State simply does not hold water. The question of the danger posed by the person to be expelled to the expelling party does not have an immediate bearing of any kind on the danger he might face if in fact expelled...

It is intellectually dishonest... to suggest that expulsion cases require a low level of proof simply because the person is notorious for his dangerousness... The only way out of this logical necessity would be to maintain that such individuals do not deserve human rights – the third party intervenes is unconsciously implying just that to a lesser degree – because they are less human.


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