Using one as a means to another's end

I realise this post slightly coincides with my last post but here, I seek to establish whether it is at all justifiable to torture a terrorist only in the most exceptional of circumstances.

I concede that the absolute nature of article 3 is a great thing but this is not without its criticisms. The main arguments revolve around the idea of the “Ticking Bomb Scenario” (TBS), the context of which can be demonstrated by the following example: say, for instance, a man has a bomb located in a public space. This man knows where this bomb is and has been captured and detained by police. It has a timer ticking down from 3 hours; therefore the police have 3 hours to attempt to extract the information locating the bomb and potentially save thousands of lives. How far should the police go to extract this information that they believe this man to have? Are the rights of the wrongdoer greater than that of the innocents whose lives would be lost as a result of the wrongdoer? Most would argue that the police should go as far as possible and of course no to the latter question. However, the same people will then argue how sure can one be that the person they have detained and are willing to torture, are really the culprit behind the offence? In reality we cannot be sure and this is the reason article 3 remains non derogable. For those avid fans of 24 will know that Jack Bauer does not always get it right and sometimes stabs and screams in the face of the wrong person, says sorry and walks away a hero because he always finds the bad guy in the end.... good times. However, in reality, we don't even get away with torturing the actual terrorist.

The TBS scenario presented itself in the recent case of Gäfgen where an 11 year old went missing. Gäfgen had abducted and murdered him before delivering a letter to the family claiming he had been abducted by a gang and asking for 1 million pounds in ransom. It was unknown to the police that the child was dead so were presented with a difficult situation to extract information from Gafgen as quickly as possible. The police shook him and hit his head off the wall; struck his chest causing bruising and threatened to have him sexually abused. They hardly, and somewhat disappointingly, did not go all Jack Bauer on his ass. He subsequently disclosed the whereabouts of the child and confessed to the crime. The majority of the Grand Chamber held that such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. Although the police, had in this case, overstepped the boundaries of article 3, it is hard to imagine that anyone in a similar situation would not have instinctively acted in the same way. Although it is admirable police officers are not allowed to exercise discretion in such cases (as this could lead to arbitrary treatment), exceptional circumstances cannot be catered for. Steven Greer said: “The 8 judge majority would rather the child died than the abductor is subjected to 10 minutes of anxiety from being tortured”.  This bleak outlook by Greer shows how hard the courts have worked to keep the article 3 right absolute but this has not meant that fair results have been obtained. The child’s human rights were not considered in full depth but instead Gäfgen’s; the murderer’s rights prevailed and this can only be perceived as an injustice. The Kantian principle of “not using anyone as a means to another’s end” is deeply flawed in situations such as Gäfgen. If the individual is the conscious cause of the other’s “end” then there should be no hesitancy in using him to change the other’s end. In other words, there should be nothing justifiably wrong with using Gäfgen to find the child since he was the root cause of the child’s position.

However, the Grand Chamber seemed set in their ways stating that  “[t]orture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk” and then further went on to say  "...there can be no weighing of other interests against article 3. In the Court’s view, neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3.”

I agree that there are many problems associated with allowing torture even in exceptional circumstances but I see no other way of dealing with the TBS. We have to realise that these scenarios will be few and far between and preparing for them will not be the end of human rights as we know it. It is still possible to retain the effectiveness of article 3 even after qualifying it to the exception of "in a war or other public emergency" (similar to that of article 2, right to life).

Even if this right was to become qualified, there would be the issue of the admittance of evidence obtained by torture.In the case of Secretary of State for the Home Department (No.2) [2005] UKHL 71 , the majority of the law lords decided that the immigration tribunal in question should refuse to admit any evidence if it is determined that such evidence was, more probably than not, obtained by torture. The same issue was brought up in Gäfgen but they concluded that there had been no breach of article 6, right to a fair trial, because the applicant had been convicted entirely on the confession made at the trial which was not tainted by the treatment he received in the police station. This makes little sense in the context of Gäfgen where he lead the police to where he had hidden the body (if we put to one side that he later gave a full confession), then surely on that evidence alone (whether it is obtained through torture or not) it is completely sound to convict him. It is reasonable to assume the opposite if the confessions they have given have not provided any leads or results. Where is the logic in disregarding evidence obtained through torture when proven by results?

It seems the ECHR is working very hard to protect the rights of the terrorist whilst forgetting about the rights of the victim. It is absurd, and frankly, extremely disappointing, to find that police will be punished for trying to the save the life of the innocent. As if the police need another incentive not to do their jobs. 

Osama Bin Laden's "Death" - The implications?

BBC has now reported that Bill Warren, a salvage diver, is going to go looking for Osama Bin Laden's body. Now.. without meaning to sound patronizing, my initial thought process was "Aww, bless him!". Here's a guy that is going to try to prove whether Bin Laden actually is dead or not. It is going to cost him 245 K and it seems that he is prepared to find nothing. All I have to say to this man is "Why bother?" According to about ten different news stories over the last few years, Bin Laden has died more times than a cat has lives. So what has made this time any different? The amount of power America and thus Obama has over the rest of the world is insane. This is the fundamental difference. And it is this power that is what has allowed America to get away with such a cold blooded kill (that is .. if what America has said really happened).

Yes, I am one of those sceptical people that believes this whole thing is a hoax. Roll your eyes, laugh, do as you please (but tread lightly, I have feelings), but this will not change the fact that Mr Warren will spend and search in vain and find nothing other than some sticks and stones, the odd coat hanger and a decomposing dead cat. However, the hoax, is not my focus today. My focus is from the human rights perspective.

With the amount of power America has, they have somehow managed to escape what the UK has fought so hard to protect and that is the protection of human rights. Where has the mention of Osama's human rights been? To date, there has been no evidence put forth of Osama's involvement in the attacks of 9/11 and in fact Osama, has himself denied any such involvement. So where have these accusations come from? Food for thought by Alexander Solzhenitsyn:
"Such as it is, the press has become the greatest power within the Western World, more powerful than the legislature,  the executive and judiciary. One would like to ask: by whom has it been elected, and to whom is it responsible?"

Anyway, I digress. Due to the recent death of Osama Bin Laden, the Republicans have proposed new legislation in America. The Detainee Security Act 2011, which would allow the detention of anyone suspected of terrorist activity to be detained for as long as they feel necessary. Whatever happened to that genius little concept of proportionality?  Perhaps we can relent and somewhat reluctantly accept that in some cases interrogation with torture may be necessary for national security but the proposed legislation would support grounds for detention for an indefinite period of time based on mere suspicion. This forces us to combat terrorism with extremism which is in some cases may be considered the one and same. It is fair to say that America are losing the war on terror. This Act is worrying and I fear the UK is not far behind. 

The situation in the UK is thus: the right not to be subjected to torture or inhumane and degrading treatment or punishment is the focus of article 3 of the European Convention of Human Rights. As emphasised in Chahal, article 3 is an absolute right: “…unlike most of the substantive clauses of the convention… article 3 provides no provisions for exceptions and no derogation is permissible even in the event of a public emergency threatening the life of the nation…”

So on paper, or in statute, it is evident that the absolute nature of article 3 is emphasised and this concept has been upheld on more than a few occasions. It is what Lord Nichols has described as a “bedrock moral principle” in the case of A (FC) and Others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) and this is an absoluteness the court strives to maintain. 

However, the government has been forced to reconsider the unconditional nature of this human right. Mr Tony Blair said “let no one be in doubt, the rules of the game are changing”. By “changing”, he alluded to modifying the Human Rights Act to make it easier to remove or exclude suspected terrorists. His suggested amendments to the HRA meant courts would be required to balance the absolute prohibition of torture against national security, although, nothing has been implemented relating to this as of yet. Instead the focus has turned to article 5, the right to liberty. The introduction of the Anti Terrorism, Crime and Security Act 2001 imposed an inconsistency with the ECHR. The fact that the right to liberty is not absolute means that it provides for exceptional circumstances. The Act proposes detention without trial is permissible which is clearly inconsistent with article 5 of the ECHR, which states that deprivation of liberty is permissible only in limited circumstances. Unlike article 3, article 5 can be derogated from by state parties under the ECHR if the conditions of a “war or other public emergency threatening the life of the nation” are met and the derogation must not be greater than that “strictly required by the exigencies of the situation”. From this development as demonstrated by article 5, the right to liberty is weakened meaning national security has precedence over human rights. It was initially published that Osama was armed and therefore America shot him dead. It later emerged that he was in fact unarmed. *Sigh*. So where was the proportionate response of America to an unarmed man? My belief is that America never had the intention of giving this man a chance to defend himself within a fair trial. Could it be that  they were too scared that there would not in fact be enough evidence to put him away?

However, the absolute nature of article 3, in the UK, still stands. In the Wellington case, the European Court of Human Rights made it clear that article 3 remains an absolute right in the sense that, once ill treatment crosses the relevant threshold, it cannot be justified by public policy. Another situation where the absolute nature of this right can be seen is in the extraterritorial effects of the article. This is demonstrated in the case of Soering where the Strasbourg court recognised that a contracting party may violate the obligations in article 3 if its action exposes a person to the likelihood of ill treatment in a place outside the jurisdiction of the contracting parties. The case concerned the possible deportation to the US where the “death row phenomenon” was regarded as inhumane punishment. The court made it clear that the violation of the convention in such circumstances is that of the deporting states, and by implication, the court is not seeking to pass any judgment on a state which is not party to the convention. So while the UK is avoiding sending suspected terrorists back home; America feels the need to shoot them all or lock them in a box until further notice.

Credit must be given to the UK on their strict interpretation of article 3  but my fear is that with the recent "death" of Bin Laden, and with America believing they require the Detainee Security Act, and with the UK weakening article 5, that we may end up following America like remote controlled Daleks like we did with the war in Afghanistan. I hope the UK continues to avidly protect our human rights but cannot help being frightened of the possible repercussions of this legislation if it is enacted in America.

France's ban of the Burka - right or wrong?

So Sarkozy has finally done it... he has finally banned the wearing of the burka BUT only in public spaces. Well thank God for that caveat; I'm sure Muslim women are over the moon by this; they can wear what they want in the comfort of their own homes. How lovely. His generosity shows no boundaries.

What annoys me is the reasons behind the ban. It seems Sarko's warped reasoning stems from a warped belief inside his warped mind that Muslim women who wear the burka must be oppressed. This is supported with Fadela Amara, the Algerian-born former housing minister in Sarkozy’s government, calling the burka “a kind of tomb, a horror for those trapped within it”, and André Gerin, the Communist MP who headed the commission investigating the grounds for a ban, describing it as “the tip of an iceberg of oppression”. I concede, in some Islamic cultures, this is probably the case but does that mean it is completely justified in violating every other burka wearer's right to freedom of religion? How can such a narrow minded view of something so important to Muslims be enough to justify this ban? With a society who is most definitely moving with the times, it can safely be assumed that most Muslims that wear any form of Islamic clothing are doing it out of choice. A choice that has been influenced purely by their upbringing and their interpretation of their religion. Calling a person's upbringing "oppressive" or even "indoctrinating" is an unfair assumption to make. After all, we are all victims of what society believes to be wrong or right; pretty or ugly; smart or thick. For example, it is a popular assumption that if you are fat, you are ugly but if you are slim, you are pretty. Yet, this is not always the case. Is it then fair for Sarko to ban chocolate because it is causing fat people to become oppressed in their coats of extra insulation? (Honestly? I am not even sure myself if that last sentence makes sense). The point I am trying to make is why on earth are France trying to control the way people live? Isn't that in itself oppressive?

It seems rather absurd, also, that a girl or guy can walk down the street pretty much naked and apart from a few rolling of the eyes from the older generation and a couple of wolf whistles from some creepy people, this is perfectly "normal" and regarded as nothing to shout home about (unless they're hot). However, suddenly, when a woman walks down the street covered modestly because she feels no need to show her body to anyone other than to whom it matters, that woman apparently, in her mind, is shouting "Help! help!!! .. I am trapped inside what appears to be a black post box that I put on myself this morning" *rolls eyes*. What is to say that the women who walks down the street half naked is not oppressed by the traditions and acceptances of society? Just because society accepts something does not make it "acceptable" to everyone. What has to be had regard for is that everyone has their own belief system and whilst it may be influenced by certain aspects of their lives; upbringings etc, it does not justify Sarko jumping the gun and assuming that a person's upbringing is oppressive just because it is different to that of the "norm".

As brilliantly put by John Stuart Mill:
"If all of Mankind minus one were of one opinion, Mankind would be no more justified in silencing that one man, than he, if he had the power, would be in silencing all Mankind".
And we can't silence the minority just because they are different, how else would we have got anywhere without being different? People were happy with Rice Krispies, then a genius came along and added chocolate ergo without difference we would not have Coco Pops!
I can't see this ban succeeding for long, however, according to William Langley, Sarko's "brave step" is both popular and right. This is worrying... but I have faith in the intelligence of non - ignorant people.