EU governments should welcome today’s ECHR ruling on torture

The European Court of Human Rights has struck a significant blow in defence of Europe’s moral standing in the fight against terrorism. Rejecting the arguments of Italy and the United Kingdom, the Court affirmed in its eagerly-awaited ruling in the case of Saadi v. Italy, issued on 28 February, that the right against torture is absolute. Italy and the U.K. may be disappointed by the result, but in reality they should thank the Court for pointing the way toward a European approach to counter-terrorism that is in keeping with the continent’s long-standing principles.

Since the attacks against the United States of September 11, 2001, the spectre of terrorism has been widely used as a justification for policies that overturn previously unchallenged restrictions on what democratic states can do to people under their control. There’s little dispute that the United States under President Bush and Vice-President Cheney has been the worst offender. Using spurious and contorted legal arguments, it has reintroduced torture as an official government policy and detained suspects for years on end without anything resembling adequate due process. European countries have rightly criticised America for these actions, but they have notably failed to articulate an alternative approach that is consistent, principled and plausible.

If there is a common European stance on counter-terrorism, it is based on the idea that the fight against terror is a matter of law enforcement, not the “war” that is claimed by the Bush administration. Fair enough, but in truth the rhetorical divide between “law enforcement” and “war” approaches has long ago become an obstacle to the more important task of finding an overarching set of principles that can shape counter-terror policies across the board. In Afghanistan, at least, European forces are engaged in a military operation that has a strong counter-terrorist element. Some European countries have tried to establish detention regimes for terrorists that would not be countenanced in other circumstances. There are continuing questions about the involvement of European states in the CIA’s “extraordinary rendition” programme of moving terrorists around outside the law or detaining them in secret “black sites”. And there have been European attempts to introduce some flexibility in the right against torture where terrorists are concerned.

There is an urgent need for Europe to develop a coherent set of guidelines that would clarify what accommodations with traditional practice are legitimate in confronting terrorism, and where there are “red lines” that are non-negotiable. Such an effort would have the added value of providing a negotiating position in the discussions on security and international law that the next U.S. administration is likely to seek with Europe soon after it takes office in January 2009. One of the clearest red lines, which the European Court of Human Rights has usefully reaffirmed, must surely be that the ban on torture is absolute.

The Saadi case concerned a Tunisian citizen resident in Italy, whom the Italian government regarded as posing a terrorist threat and wanted to deport for reasons of national security. Nassim Saadi had been convicted in absentia in Tunisia of terrorist offences, and argued that he faced a serious risk of being tortured if he was returned to Tunisia, as many other terrorist suspects had been tortured there. According to case law, the European Convention prohibits transferring anyone to a country where they face a “real risk” of torture. However, Italy and particularly the U.K. (as a “third-party intervener”) hoped to use this case to establish a new principle, that in the case of terrorist suspects, the risk of torture in the country they are deported to should be balanced against the risk to national security they pose in the country wishing to deport them.

The European Court decisively and unanimously rejected this argument. It said that it recognised the “scale of the danger of terrorism today and the threat it presents to the community” but asserted that this could not be allowed to “call into question the absolute nature of Article 3” (the provision in the European Convention on Human Rights that prohibits torture). The Court also dismissed the U.K. argument that there was a significant distinction between treatment inflicted by a state that was a party to the Convention and treatment that might be inflicted by another state, and that in the second case the risk should be “weighed against the interests of the community as a whole”. Instead it ruled that the obligation not to expel or extradite someone who would face a real risk of torture in the receiving state was not subject to any exceptions, no matter how “undesirable or dangerous” the conduct of the person involved.

The notion that even the most fundamental rights, like the right against torture and inhuman treatment, are less applicable in the case of terrorists has been one of the most dangerous consequences of the West’s confrontation with al-Qaeda. European states should embrace the European Court’s ruling and use it as a spur for a more far-reaching and comprehensive effort to formulate a European set of principles for confronting the terrorist threat in a way that is both effective and consistent with human rights and the rule of law.