See if you can spot the difference between these two statements:
“…the use of evidence possibly obtained by torture should be “proportional and not fixed”, so that material relating to major crimes, rather than lower level ones, may be considered.”
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
The first statement comes from Liberal Democrat peer and QC, Lord Carlile, the man appointed by the government to review its anti-terrorist legislation.
THe second statement is article 15 of the United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as ratified by the United Kingdom on 7 January 1989.
I note this as today the Law Lords are being asked to rule on the admissibility of evidence, in UK law, which may have been obtained under torture – I’m astonished that I’m even having to write that last sentence but that is where we have come to, to the point where the highest court in the land is even being asked the question.
Read any of the extant literature on human rights, any of the various treaties and statutes, whether it be the Universal Declaration of Human Rights and its assocaited conventions, the European Convention on Human Rights or our own Human Rights Act and you’ll notice something straight away; of all the provisions these documents contain none are less equivocal than the provisions which prohibit the use of torture. When it comes to the prohibition of torture there are no ifs, buts or maybes; no qualifications, no ‘well it might be ok in extreme situations’. The prohibtion of torture is, throughout all these documents, clear, unequivocal and absolute – there are no circumstances in which the use of torture or the use of evidence obtained under torture is permissible – save only where it is the torturer on trial for their crimes.
There is every good reason why this should be the case – and not just because of the obvious barbarity of the practice itself.
Justice in the UK, as in every civilised society, is founded on a clear set of basic principles; the accused is innocent until proven guilty; has a right to a fair trial and to legal counsel and, importantly, the test of guilt or innocence is founded on the principle that the prosecution must demostrate the guilt of the accused ‘beyond all reasonable doubt’.
The veracity of evidence extracted under torture is, by its very definition, subject to all too reasonable doubts – how can one even contemplate relying on such evidence when one knows, or suspects, that it was given in circumstances where the individual under interrogation was given only two choices; tell the inquisitor what they want to hear or face excruciating pain. It seems to me – no, it it – axoimatic that there must always be reasonable doubt where evidence has been obtained by torture, that there is a point which all people, in such a situation, will reach where they will say anything, admit to anything, simply to make the pain stop.
The pure sophistry of Carlile’s comments disgust me to the core; the very idea that the use of evidence obtained by torture should be “proportional and not fixed”; that such evidence might be admissible where it relates to major crimes but not minor one as though that makes a difference betrays a total lack of humanity in his consideration of this issue.
Torture is, here, being treated as an abstraction, a means justified so long as the end it big enough. What then of those who, under torture, fail to serve up the goods, who know and can give nothing of sufficient value to justify such treatment. What do we say to them when its all over?
“Sorry, mate, Just doing my job you see. Nothing personal you understand, so no hard feelings.”…?
What of this little gem of a statement?
“What one must have, however, is the highest of standards to ensure that the British authorities are never complicit in torture.”
The highest standards? Of what? Of only taking evidence of ‘major’ crimes and pretending anything else never happened? How the hell can the British authorities not be complicit in torture when it is prepared to accept information and evidence obtained under torture so long as its of sufficiently high value to allow us to ignore the fact of where its comes from and how it was obtained?
Just what is the message being sent out here? Certainly not that the UK is ‘committed against torture’ – if we’re that committed we wouldn’t even be considering this question at all; our response to the idea that evidence obtained under torture could be admitted into a UK court would be, and should be, a clear and unequivocal ‘No’.
And all this from the man appointed by the government to review its anti-terrorist legislation – a QC who, apparently, cannot even read an international treaty or convention if the evidence of his own comments are anything to go by.
Clearly, Lord Carlile needs so help here, so to make things a little easier for him, here’s what some of the main treaties, conventions and laws have to say on the subject of torture.
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Universal Declaration of Human Rights – Article 5
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
International Covenant on Civil and Political Rights – Article 7
And just to finish off, take a look at Article 2, Clause 2 of the UN Convention against Torture, etc…
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”
Which seems to me about as unequivocal as it gets.
Update: In the comments, Katherine has helpfully pointed out that what Lord Carlile actually said was that if information was received that, say, a terrorist attack was planned then you would have to act on that information – i.e. attempt to thwart said possible attack. He also specifically and explicitly said that evidence gleaned from torture could never ever be used in a court of law against anyone accused of a crime.
None of which addresses the fundamental problem of either the source of the information, its reliability or how it is subsequently used.
The basic impression I suspect many people will take from his comments about using such information to thwart a terrorist attack is that what follows will be something akin to the series ’24’; that our own equivalent of Jack Bauer will suddenly swing into action in a desperate effort to prevent an atrocity taking place.
What happens in reality is all rather different. The case going before the Law Lords today, the outcome of which is unlikely to be known for some months, is the internment – now house arrest – of alleged terrorists without trial or even the prospect of a trial.
Let’s turn this around the other way and look at it from the perspective of the accused – if one is arrested and interned in such circumstances on the basis of information obtained under torture and without there being sufficient corroborating evidence to proceed to trial – in short if all the authorities have is the ‘evidence’ procured by a foreign government under torture – how then do you clear your name if you are innocent?
So far this is a problem which could, hypothetically, be made to go away if only the government could find some way past the prohibition on deporting people to states where they would be at risk of torture, allowing those now under house arrest to be deported safely out of sight and out of mind, beyond the jurisdiction of our courts. Yet even if they succeed in that, that removes only the current symptoms of the problem and not its cause – what happens should this situation arise again only for the alleged terrorist suspect to be a British citizen? How do we deal with that, with a situation in which the government cannot make use of a workaround in the immigration system to disabuse those made suspect by information obtained via torture of their rights?