Against impunity: justice after torture

Carla Ferstman
29 June 2007

26 June 2007 marked the twentieth anniversary of the entry into force of the United Nations convention against torture, whose signatories agree upon the absolute prohibition of torture, even during a state of emergency or when faced with threats to national-security interests. The treaty represents a landmark in international law that is all the more impressive in that the process of its adoption (initially by the UN's general assembly in December 1984) and ratification by individual states took place amid bitter global division at the height of the cold war, It has since become one of the most widely supported international conventions, with 144 states-parties to date and another seven states in line to ratify it.

Carla Ferstman is director of Redress, an organisation that works for reparation for torture survivors

It is, then, both remarkable and sobering that twenty years later the horrors of torture have long lost their taboo status, including among states which most pride themselves on their democratic and humane credentials. Abu Ghraib has become a byword of violation of human dignity; Guantánamo Bay of a legal black hole into which people can be plunged for years; "rendition" and "black sites" of a system of secret incarceration and transfer, which includes extradition to countries notorious for routine torture. True, images and accounts of torture from the era of "war on terror" have begun to be widely circulated, and retain their capacity to shock. But a neglected case involving four British citizens highlights two important aspects of the new "normalisation" of torture: that torture is not just something that happens to "other"' people, and that its survivors can face insurmountable legal barriers in achieving recognition and justice.

The impunity lock

The four men - Ron Jones, a tax consultant from Hamilton, Sandy Mitchell, an anaesthetist from Kirkintilloch (both central Scotland), William Sampson, a dual British-Canadian citizen from Penrith, and Les Walker from Wirral (both northern England) - had been working in Saudi Arabia when they were arrested for various alleged infractions of the law. Jones was accused of spying for the British intelligence agency, MI6; he was held for sixty-seven days in solitary confinement (and, he says, tortured) in a Saudi prison, before being released without charge. Mitchell, Sampson and Walker claim they were tortured over a two-and-a-half year period until their release in August 2003.

Like many torture survivors, their ordeal has lasted long after their release. Since returning to Britain, psychological and physical challenges have meant that none of the four has been able to work. Their life is now very far removed from their 9-to-5 jobs of the past. In order to move on, they need first to settle accounts with the past. That requires an official acknowledgment of what happened to them; in a word, justice. But the routes currently available have so far resulted in dead ends.

Among the organisations seeking to prevent torture, working with tortured people, and seeking justice for torture survivors:

The Medical Foundation for the Care of Victims of Torture (MFCVT) in London

The International Rehabilitation Council for Torture Victims (IRCT) in Copenhagen

The Center for Constitutional Rights (CCR) in New York

As British citizens, they have tried to convince the British government to take up their claim against the Saudi government under the doctrine of diplomatic protection. But this is only a discretionary remedy and the government has to date not acted upon their request. Similarly, their attempts to pursue justice through the court system have been equally unsuccessful, since the terms of the State Immunity Act (1978) prevent individuals bringing a claim for compensation for torture against a foreign state or its officials. Britain's upper chamber of parliament, the House of Lords, found in June 2006 that it was bound to apply the plain terms of the act, leaving Ron, William, Sandy and Les without a forum in which to argue their case. This ruling, needless to say, applies to anyone in the United Kingdom who seeks to bring a claim in British courts against a foreign state or its officials.

Meanwhile, access to justice in Saudi Arabia is for the "Riyadh four" remote if not impossible. In countries where torture is endemic or state-sanctioned, the judiciary is usually not independent, and the opportunities for justice will be slim to non-existent. Neither is there any international remedy. The ability of survivors to exercise their rights internationally is contingent on the extent to which states have agreed to be bound. In some of the countries with the worst torture practices, few international remedies are available. Consequently, the ability to exercise their right to a remedy in their state of nationality or indeed a third country presents the only prospect for justice. This predicament underscores why the exercise of extraterritorial jurisdiction is so vital - it can be a crucial tool to avoid impunity.

The road to justice

A number of other states have, like Britain, state-immunity laws which prevent access to justice for torture committed abroad. Canada's State Immunity Act (1985), for example, prevented Houshang Bouzari from bringing a case against the Islamic Republic of Iran for the torture he suffered in Tehran's Evin prison following his refusal to pay $50 million to the son of the former president (Hashemi Rafsanjani) for his offer of "assistance" in an oil-and-gas project. Soon after the Canadian courts reached this decision, the United Nations' committee against torture underscored Canada's international obligation to ensure the provision of compensation to all torture survivors, regardless of where the torture took place.

Also in openDemocracy on torture and legality in the age of "war on terror" :

Geoffrey Bindman, "Civil liberties and the 'war on terror'" (6 May 2004)

Isabel Hilton, "Torture: who gives the orders?" (13 May 2004)

Clive Stafford Smith, "Torture: an idea for our time" (11 August 2005)

Neal Ascherson, "Torture: from regress to redress" (1 March 2006)

Geoffrey Robertson, "Torture: the human-rights answer" (6 April 2006)

Neal Ascherson, "The case for pre-emption: Alan M Dershowitz reviewed" (18 May 2006)

Aziz Huq, "America's torture policy" (18 June 2007

In other states, the situation is not quite so bleak. In Italy, the supreme court denied Germany's claim to state immunity on the basis that immunity did not apply to the crimes alleged in the case; namely, forced deportation and forced labour during the second world war. In France, Germany and Spain, torture survivors have been able to bring a claim for compensation within a criminal prosecution, thereby providing some form of access to justice and reparation. There have been few attempts (Italy excepted) to bring cases against states in countries with a civil-law tradition; though as a result of provision for Alien Tort Claims Act in the United States allow survivors to sue individuals, including certain state officials, for torture which took place outside US territory. This law has both enabled torture survivors to argue their case in court and resulted in awards of substantial damages against the persons responsible for their torture.

In light of the experience of the "Riyadh four" and this comparative international legal situation, my view - and that of the organisation I represent, Redress - is that if the law in the United Kingdom presents the central obstacle to torture-survivors' access to justice, then the law must be changed. This is why Redress supports the introduction of the Torture (Damages) Bill, which Peter (Lord) Archer of Sandwell QC is sponsoring as a private-members' bill. Peter Archer is inviting all interested individuals and organisations to submit evidence on the situation of torture survivors living in the UK and the challenges they have faced in attempting to secure remedies.

This bill is motivated by more than the cases of the Britons tortured in Saudi Arabia. Twenty years after the entry into force of the UN convention, torture continues to be widespread across the world; this measure, if passed into law, would at least allow survivors in Britain access to court to argue their case and seek some kind of acknowledgment of and compensation for what they have endured. Britain, its European partners and its United States ally all claim a commitment to upholding the prohibition of torture. It is time to set an example that turns rhetoric into practice, and tackle impunity head-on.

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