Human rights experts surprised by ECHR terrorism verdict
By Rebecca Lowe
Leading lawyers have voiced mixed feelings over the European Court of Human Rights (ECHR) judgment that five Islamic extremists can be extradited to the US to stand trial on terrorism charges.
The Strasbourg court ruled on Tuesday 10 April that British nationals Abu Hamza, Babar Ahmad, Syed Tahla Ahsan, Adel Abdul Bary and Khaled al-Fawwaz could serve life sentences without parole at an American ‘supermax’ prison without suffering a violation of their human rights.
The judges decided they needed more information about the mental health of sixth suspect Haroon Aswat before reaching a decision.
‘I was a little surprised by the verdict as I tend to feel that if locking someone up in solitary confinement for the rest of their life is not cruel and unusual punishment, or near it, then what is?’ said Geoffrey Bindman, founding partner of civil liberties law firm Bindmans. ‘There should always be the possibility of release.’
The applicants argued that being subjected to solitary confinement and life without parole at ADX Florence, where they would almost certainly be sent if convicted, would violate Article 3 of the European Convention of Human Rights, which prohibits torture and inhuman or degrading treatment.
Though life without parole is not banned by the Convention, there has been an increasing trend in Europe against it. Now only the Netherlands, England and Wales impose the sentence.
‘I was a little surprised by the verdict as I tend to feel that if locking someone up in solitary confinement for the rest of their life is not cruel and unusual punishment, or near it, then what is?'
The ECHR determined that the sentences did not violate Article 3 because they were not ‘grossly disproportionate’ to the alleged crimes and they were not de facto irreducible because there were opportunities for early release – albeit remote ones. These included a pardon by president, a change in sentencing guidelines and a motion by the Director of the Bureau of Prisons.
Had the verdict gone the other way, it would have been a ‘serious setback’ for the UK’s policies on terrorism, according to Anthony Dworkin, Senior Policy Fellow at the European Council. He added: ‘It would not have prevented extraditions to the US except in a small number of cases […] but it is true that the most high-profile terrorism cases might fall into this category.’
However, the Court conceded that Article 3 questions may arise in the future if the imprisonment could no longer be justified in terms of punishment, deterrence, security or rehabilitation.
‘It may be that the approach of the Strasbourg court will change,’ the ECHR stated. ‘There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact, irreducible.’
Between them, the applicants have been charged with an array of terrorist crimes, including providing support to terrorist organisations, taking hostages, and conspiracy to kill American nationals. Fawwaz was charged with 269 counts of murder.
James Goldston, founding Executive Director of the Open Society Justice Initiative, was equivocal about the ‘surprising’ judgment. He said: ‘While one might have preferred an outcome that accorded greater recognition to the harsh realities of the supermax prison environment, I don't think this judgment is manifestly in error.’
The ‘harsh realities’, according to witnesses provided by the applicants, include an almost total lack of human communication and overly severe punishments for minor infractions.
Laura Rovner, Director of the Civil Rights Clinic at the University of Denver, referred to the prison as a ‘clean version of hell’. One lawyer, Mark Donatelli, conducted a survey that found that at least 43 inmates of ADX Florence had spent eight years or more in ‘lockdown’ conditions of solitary confinement.
A 2008 report by Human Rights Watch considered that conditions at ADX violated the US’s treaty obligations under the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture.
The ECHR, however, accepted the US government’s testimony that the prisoners would have opportunities to progress out of confinement, and could talk to inmates through ventilation shafts and during recreation periods. They would also have access to books, newspapers, TV, radio, education and hobby materials.
Mark Drumbl, Director of the Washington and Lee University's Transnational Law Institute and a member of the IBA War Crimes Committee advisory board, described the judgment as ‘well within the mainstream of international human rights law’. However, politics may have played a part in the decision, he said.
‘The fact that the suspects were accused of terrorist crimes that targeted westerners, as opposed to, say, genocide against Rwandans, undoubtedly colours the approach of the judiciary. It is easier to be liberal in interpreting human rights when the victim populations that seek justice and need to absorb threats are far away.’
The applicants’ lawyers, from Birnberg Peirce & Partners, said the Court had failed to address the ‘burning issue’ of why British citizens were not being tried in the UK, where the evidence had been compiled. If the men choose to appeal, they have three months to make an application to the Grand Chamber of the Court.