United Kingdom: Deportation of terror suspects
AI Index: EUR 45/046/2005 (Public)
News Service No: 283
20 October 2005
United Kingdom: Deportation of terror suspects
Over the past few months, the UK government has announced sweeping new counter-terrorism measures that pose serious threats to human rights protection. Among these measures, the UK announced its intention to forcibly send terror suspects to countries where they risk torture or other ill-treatment
To this end, the UK government is seeking to enter into bilateral agreements, known as Memoranda of Understanding, with the governments of the countries to which it plans to deport such people.The UK government asserts that a Memorandum of Understanding guarantees, by way of « diplomatic assurances », that people deported by the UK would not be tortured or ill-treated in the country to which they are sent.
To date, the UK has signed Memoranda of Understanding with Jordan and Libya, and states that it is currently in the process of negotiations with other North African and Middle Eastern countries.
The UK recognises that it has a legal obligation not to send people to countries where they risk torture or other ill-treatment. The UK is also well aware that some of the countries to which it wishes to expel these individuals have a well-documented record of using torture or other ill-treatment against those in custody, which the UK government has previously publicly criticised. The UK’s wish to negotiate Memoranda of Understanding with such governments amounts in effect to yet another public acknowledgment by the UK of the risk of torture or other ill-treatment in those states. Given that these states have previously violated the absolute prohibition of torture or other ill-treatment in binding international treaties they have ratified, they cannot be relied on to honourbilateral diplomatic understandings.
The UK’s reliance on diplomatic assurances when seeking to expel people to countries where they risk torture or other ill-treatment would violate its obligations under international law. Diplomatic assurances are inherently unreliable and in practice ineffective, and they cannot relieve a state of its obligation not to forcibly return a person to a country where they would be at risk of torture or other ill-treatment.
The absolute prohibition on torture and other cruel, inhuman or degrading treatment or punishment (ill-treatment) encompasses an absolute prohibition on transferring a person to any state where there is a risk they would be subjected to torture or other ill-treatment. The principle is set out in numerous international treaties and in customary international law, and so is binding on all states, irrespective of whether they are party to the relevant treaties. The prohibition is absolute and permits no exceptions arising from general circumstances, such as war or emergency, or individual factors such as offences allegedly committed or danger posed by the individual concerned.
In Amnesty International’s experience, states that systematically torture or engage in other forms of ill-treatment of detainees also systematically deny that they carry out such practices. They torture in secret and in violation of their international legal obligations.
Several of the governments with which the UK government has now agreed, or is seeking to agree, Memoranda of Understanding, have long and well-attested records of using torture against political opponents and others in gross breach of their international treaty obligations. Such obligations carry much greater weight in law than Memoranda of Understanding, which are no more than mere bilateral agreements which the UK government has no real means of enforcing and which, in effect, are nothing other than pieces of paper intended to cover over a UK government attempt to breach its obligation to prevent torture.
* AI stresses the absolute nature, under international law, of states’obligation not to transfer any person to a country where they risk torture or other ill-treatment; this includes an obligation not to send any person to a state which might subsequently transfer them to a third state where they would be at such risk.
* The circumvention of this absolute obligation by reliance upon diplomatic assurances should be prohibited in all circumstances.
* People should not be sent to countries wherever there is credible evidence that a person returned or transferred risks torture or other ill-treatment in the receiving country. This includes, but is not limited to, situations where such practices are systematic, widespread, endemic, or a recalcitrant and enduring problem in the receiving state; where the authorities consistently target members of a particular racial, ethnic, religious, political, social or other identifiable group, for torture or other ill-treatment and the person subject to return is associated with that group, or where there is a risk of torture or other ill-treatment directly related to a person’s particular circumstances; where governmental authorities do not have effective control over their forces, or any part of them, who perpetrate acts of torture or other ill-treatment; or where there is risk of torture or other ill-treatment by non-state actors.
* Any person subject to a possible transfer must have the effective opportunity, in conformity with internationally-recognized procedural guarantees, and before the transfer takes place, to challenge its legality before an independent and impartial court, which should fully examine all relevant information, including that provided by the receiving state and any mutual agreements related to the transfer. Such persons must have access to independent legal counsel and an effective right of appeal; and no return or transfer should be carried out before all judicial procedures have been completed.
The obligation to ensure a person is not subjected to torture or other ill-treatment applies to the sending state as well as to the receiving state. The sending state cannot evade this obligation by attempting, by means of Memoranda of Understanding, obtaining diplomatic assurances, or other measures, to pass the responsibility to the receiving state. Indeed, this may raise a question regarding the potential criminal liability of any UK official involved in ordering or facilitating the transfer of a person to a state where they are then subject to torture.
* Amnesty International does not consider that diplomatic monitoring can ever replace, in whole or in part, the obligation of the receiving state to set up and implement properly functioning, system-wide safeguards against torture and other ill-treatment as provided in the organization’s 12-Point Programme for the Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment by Agents of the State, and in international standards, or the sending state’s obligation not to transfer a person to anywhere they risk torture or other ill-treatment.
* Amnesty International stresses that states can exercise universal jurisdiction over acts of terrorism and other crimes under international law, and prosecute persons suspected of such crimes in their own courts, in procedures which meet international standards of fairness, or send them to another state where they will be prosecuted and tried in fair proceedings. This is a lawful alternative to either releasing them or sending them, in violation of international law, to a country where they risk torture or other ill-treatment.
Officials of the Département du Renseignement et de la Sécurité (DRS), Department of Information and Security, also known as Military Security, continue to torture uncharged detainees held in their custody despite the recent inclusion of torture as a criminal offence in the Algerian Penal Code (albeit in a form not fully consistent with international law) and a reported reduction recently in the incidence of torture and ill-treatment by the police and gendarmerie. The DRS runs its own detention centres where detainees are held incommunicado and subject to torture. The torture used includes beatings and the « chiffon », a method which involves detainees being held or tied down and having a cloth forced into their mouth to hold it open so that quantities of dirty water or even chemicals can then be poured down their throats causing a sensation similar to drowning.
Other methods reportedly used by the DRS in the past include burning detainees with cigarettes or with a soldering iron, throwing cigarette ash into their eyes, whipping, slashing with sharp implements, and strangling almost to the point of suffocation. The DRS has also reportedly used electric shock torture on some prisoners in the past, with shocks being administered to the genitals and other sensitive parts of the body, sometimes after detainees were soaked with water to increase the intensity of shocks.
DRS officials continue to be allowed to commit torture with impunity. Algeria’s civil authorities, in practice, have no control over their activities and judicial authorities routinely fail to investigate allegations of abuse by the DRS or to inspect their detention prisons, although they are legally required to do so.
Algerian law (Code of Criminal Procedures, Article 51) permits uncharged detainees to be held for no longer than 12 days in terrorism/security related cases; during this period, known as garde à vue, detainees do not have access to a lawyer, but the arresting authorities must immediately give them the opportunity to communicate with their families, and tell their families where they are detained. In practice, these requirements are routinely violated in cases where detainees are held by the DRS, which frequently holds suspects for much longer than the 12 days period, incommunicado and in secret, without notifying their next of kin of their arrest or where they are being held.
Amnesty International visited Algeria most recently in May 2005, when its delegates travelled to several parts of the country and interviewed victims of human rights abuses, including former detainees of the DRS, as well as government officials and representatives of civil society organisations. As a result, Amnesty International concluded that there remains a serious risk that anyone detained by the DRS is liable to be tortured.
The UN Special Rapporteur on Torture has been seeking access to Algeria for some ten years but the Algerian authorities, as yet, have still to agree to receive such a visit.
Torture and ill-treatment of suspects is common and practised systematically in detention centres, including police stations and premises of the State Security Intelligence (SSI), throughout Egypt. The most frequently reported methods are beatings, application of electric shocks, and suspension by the wrists and ankles and in contorted positions for long periods. As well, suspects are subject to death threats, threats that they or their relatives will be raped or sexually abused.
The UK Foreign and Commonwealth Office, similarly, notes in the country profile on Egypt published on its website, that: “one of the key human rights concerns in Egypt is the widespread mistreatment of detainees and use of torture in police stations, especially in cases involving political detainees.”
There have been hundreds of complaints of torture in recent years that have been brought to the attention of the authorities by lawyers and local and international human rights groups, but the Public Prosecutor’s Office, which has a legal responsibility to investigate such complaints, has repeatedly failed to mount effective, if any, investigations and state officials who use torture, therefore, do so with impunity.
Among suspects held for their political motivation, real and alleged members of armed Islamist opposition groups, including suspects returned from abroad, are particularly subject to torture. Notably at the SSI headquarters in Lazoghly Square, Cairo, as well as at other SSI branches, at police stations and occasionally prisons.
Scores of suspects have been forcibly returned to Egypt from countries including Albania, Pakistan, Sweden, Uruguay, and Yemen, and the USA; in May 2005, Prime Minister Ahmed Nazif said « over 60 or 70 » individuals had been transferred to Egypt by US authorities through the process of “rendition” since September 2001. Those transferred to Egypt from abroad are detained on arrival and held for months during which they are widely believed to be subject to torture. Their identities are rarely revealed, their places of detention are rarely disclosed and they have no access to legal counsel or their families or to the outside world; some have effectively « disappeared ».
Amnesty International visited Egypt most recently in July 2005, when its delegates interviewed confidentially tens of people who had been detained in the wake of bomb explosions in October 2004 and who complained that they had been tortured before they were eventually cleared and released uncharged.
In 2002, the United Nations’ authoritative Human Rights Committee, commenting on Egypt’s record, noted publicly that “Egyptian nationals suspected or convicted of terrorism abroad and expelled to Egypt have not benefited in detention from the safeguards required to ensure that they are not ill-treated, having notably been held incommunicado for periods of over one month (articles 7 and 9 of the Covenant).” (Para. 16 (c), Egypt: 28 November 2002, CCPR/CO/76/EGY).
Amnesty International has been informed, that in September 2005 the UK’s ambassador to Egypt requested that the Egyptian National Council for Human Rights undertake to help ensure protection of the rights of Egyptians who might be forcibly returned from the UK and stated that the UK government wished to include a note to this effect in its proposed Memorandum of Understanding with Egypt. The Council, however, has apparently declined to participate.
In December 2001, the Swedish government forcibly returned two Egyptian nationals to Egypt after refusing their applications for asylum in Sweden. The Swedish authorities said that they had sought and received diplomatic assurances regarding the safety of the two men before transferring Ahmad Hussein Mustafa Kamil ‘Agiza and Muhammad Muhammad Suleiman Ibrahim El-Zari to Egypt. The transfer was conducted not by Swedish officals but by six masked US security agents using an airplane leased from the US government. The two Egyptians are said to have been hooded, shackled and drugged before being placed on the airplane. They were then detained on arrival in Egypt and held incommunicado for five weeks before Sweden’s ambassador to Egypt was allowed to visit them. They told him they had been tortured.
Amnesty International continues to have serious concerns over reports of torture and ill-treatment of detainees held in incommunicado detention in Jordan. In particular, the General Intelligence Department (GID), the security service which deals with all political offenders, frequently holds suspects incommunicado for periods of weeks or more during which detainees are subject torture.
Access to lawyers is generally granted only when a detainee is formally charged and transferred to court. Although the Jordanian Code of Criminal Procedures states that access to lawyers should normally be allowed, it also allows for detainees to be interrogated and detained without access to a lawyer.
Methods of torture have included beatings during interrogations, sometimes with sticks and cables; sleep deprivation for up to three or four days; exposure to loud noises; being held in solitary confinement; and threats of rape and death against the detainee’s family members. Detainees especially vulnerable to torture and other ill-treatment are those held for security reasons or in “terror” cases, usually prior to their being charged by the Jordanian State Security Court (SSC).
During 2004 at least 18 security-related cases proceeded before the SSC. In at least six such trials, defendants alleged that their “confessions” were made under torture. Amnesty International has repeatedly raised its concerns that SSC procedures fall short of international standards for fair trial. The ordinary judicial system supervised by the Ministry of Justice has no role in the detention, prosecution or trial of political suspects until the verdict has been given by the SSC and in appeals before the Court of Cassation.
Amnesty International knows of no judicial and impartial investigations into allegations of torture and the SSC has shown itself unwilling to order or mount proper investigations when such allegations are made in trials before it.
The government-funded National Centre for Human Rights (NCHR) published a report in June 2005, entitled The State of Human Rights in the Hashemite Kingdom of Jordan, which covers the period of June 2003 to December 2004. The report stated that the NCHR had received more than 250 complaints of torture, including in Jordanian security centres and criminal investigation departments, during 2004. The report notes that “[t]he State Security Court and other special courts do not constitute a sufficient guarantee to prevent torture and other forms of mistreatment by individuals charged with implementing the law” The report also states that “[d]espite the claims of torture made by defendants in state security courts and other criminal courts, it is considered very difficult to prove that these confessions were coerced, especially with the lack of witnesses and the long period of detention, which means the forensic physicians cannot see the effects of violence and coercion and the various forms and means of pressure.”
The NCHR (currently headed by Ahmad Obeidat, former head of the GID and Prime Minister) is reported to have been approached by the UK authorities recently with a view to setting up an oversight mechanism whereby the NCHR would check on the Jordanian authorities’ treatment of any Jordanian national forcibly returned from the UK under the terms of the Memorandum of Understanding. The NCHR, however, declined to participate, noting that under Jordanian law it is not permitted to report to a foreign government.
Muhammad Faraj Ahmed Bashmilah and Salah Nasser Salim ‘Ali are friends from Aden, Yemen. In September 2005, they described to Amnesty International their arrest and subsequent detention for several days in 2003 in Jordan where they say they were tortured. The two men were then spirited out of Jordan and detained incommunicado for over one year and a half at an unknown place where they were interrogated by guards they say came from the USA. Neither was ever told why they were detained. They said they were held in solitary confinement for the duration of their detention with no access to family, lawyers, diplomatic representatives or visits from the International Committee of the Red Cross (ICRC) or other detainees, before being flown to their home country, Yemen, where they were detained on arrival and remain held, although Yemeni authorities acknowledge that they have no legal reasons to hold them. Rather, the authorities informed Amnesty International, they are detaining the men at the behest of the US government.
Azmi Jaiousi was arrested around April 2004. It is alleged he was planning to carry out chemical attacks in Jordan and belonged to an illegal « Islamist » organization reportedly thought by Jordanian security forces to be linked to al-Qa’ida. He is one of 13 men being tried on these charges by the SSC. According to his lawyer, Azmi Jaiousi was held in prolonged incommunicado detention by the GID and during his interrogation he was beaten and deprived of sleep for lengthy periods.
Muhammad Du’mus is one of five defendants, tried by the SSC in relation to the killing of US diplomat Laurence Foley, in Jordan in 2002. The five claimed during their trial that they were tortured under interrogation in the GID. Du’mus’ case was reportedly referred to the National Institute of Forensic Medicine, who examined the case and reportedly concluded that he had suffered injuries, including a missing toenail. According to reports, five prison inmates gave evidence saying that some of the defendants bore signs of torture on their bodies. Du’mus was sentenced to 15 years’ imprisonment, while two of the others were sentenced to death.
In November 2002 security forces raided areas in and around the city of Ma’an, resulting in the arrests of scores of people, thought to be Islamists. One hundred and seven people (of whom 94 in absentia) are currently being tried by the SSC on charges including inciting a riot in Ma’an in 2002. One of the defendants, Omar Awad al-Bazaigheh, told the SSC that he had been forced under torture to “confess” and that he was forced to add his signature to his “confession” while wearing a blindfold.
Despite recent positive steps by the Libyan authorities to address some longstanding human rights abuses, scores of people are believed currently to continue to be held in incommunicado detention by security forces. Hard information is difficult to obtain, however, victims of state abuse and their families wary of speaking out about their cases or experiences at the hands of the authorities. Amnesty International has no detailed information on cases of torture from this year although it has received information about politically-motivated arrests and detentions, including of returnees who had been given assurances by the Libyan authorities that their safety would be guaranteed on return. In the past, however, Amnesty International has documented a pattern of incommunicado detention, often accompanied by torture, and of unfair trials before special courts.
A Palestinian medical doctor and five nurses, all Bulgarian nationals, allege that they were tortured after their arrest and forced to confess to deliberately infecting more than 400 children with HIV while they were working at a hospital in Benghazi. All five were convicted in May 2004 by a Libyan court, however, and sentenced to be executed by firing squad. They are now awaiting the outcome of their appeal to the Libyan Supreme Court, due on 15 November 2005.
In January 2005, the six medical workers brought charges against nine Libyan police officers and a military doctor who they accused of responsibility for torturing them but the police officers and doctor were acquitted on 7 June 2005.
Amnesty International visited Libya most recently in February 2004, the first time for 16 years that it was permitted to do so by the authorities. During the visit, Amnesty International interviewed former detainees who provided detailed testimonies regarding their torture by Libyan security forces; detainees who quickly “confessed” usually received no more than beatings, but those who refused to do so, they say, were assaulted with electric cables, beaten on the soles of their feet (falaqa), suspended for long periods and subjected to electric shock.
Mahmoud Mohamed Boushima returned voluntarily to Libya on 10 July 2005 from the UK, where he has been resident since 1981 due to his opposition to the Libyan government. He returned after reportedly receiving assurances from the Libyan authorities that he would not be at risk in Libya; however, soon after his arrival he was detained in Tripoli by members of the Internal Security Agency, Libya’s secret police. Since then, Amnesty international understands that his family have been permitted no contact with him and have not been able to ascertain his place of detention, whether any charges are to be brought against him or whether he has access to a lawyer, or regarding his treatment in detention.
Torture is common in Syrian detention and investigation centres, particularly during periods when detainees are held incommunicado after arrest for the purpose of interrogation. Many different methods of torture are used; in 2004, at least nine people were reported to have died as a result of torture or ill-treatment while being detained in Syria.
Syrian courts routinely accept as evidence « confessions » allegedly extracted under torture from defendants, particularly in cases involving political suspects, and rarely call for any investigation to establish that confessions were freely given.
In 2004, several Canadian nationals of Syrian descent were reportedly tortured in apparent attempts to extract information about suspected terrorist activities. In at least one of these cases, the suspect in question was reportedly transferred to Syria by US officials in order that the suspect should be subject to “more robust” questioning than would be permitted under US law.
Muhammad Osama Sayes was forcibly returned to Syria by UK authorities in May 2005 after his application for political asylum in the UK was rejected and despite expressions of concern by Amnesty International and others that he would be at risk of persecution in Syria as a suspected supporter of the banned Muslim Brotherhood (MB). He was detained immediately upon arrival in Syria and there are fears that he may have been tortured. His place of detention has not been disclosed and it is not known whether any charges have been brought against him. Other, broadly similar cases, include:
# Nabil al-Marabh, who « disappeared » in May 2004, four months after he was forcibly returned from the USA to Syria. He is believed to be held incommunicado, without charge, and to have been tortured.
# Abd al-Rahman al-Musa, who has detained without charge since he was deported from the USA on 19 January 2005 and has been held incommunicado since April 2005.
# Ahmet Muhammad Ibrahim, a Syrian Kurd, who has been detained since he was deported from Turkey on 25 March 2005 and is reported to have been tortured.
# Muhammad Fa’iq Mustafa, who had obtained Bulgarian nationality, has been detained since he was deported from Bulgaria on 22 November 2002 and is reported to have been tortured. He is reported to have been sentenced by a military court although the authorities have reportedly yet to disclose the nature of the charges on which he has been convicted and the sentence imposed on him.
Sheikh Muhammad Ma’shuq al-Khiznawi, a prominent Kurdish imam, died on 30 May 2005. He « disappeared » 20 days earlier after leaving the Centre for Islamic Studies in Damascus on 10 May, following a telephone call asking him to visit a sick man. Reportedly, his death resulted from torture while he was held by Syrian Military Intelligence at an unknown location. His body was handed over to his family on 1 June and was escorted by ten Military Intelligence cars on its way from Damascus to his home town Qamishli. Sheikh Muhammad Ma’shuq al-Khiznawi was a critic of violence and terrorism who had spoken out in support of the rights of Syrian Kurds, political reform and greater dialogue between religious groups. In February and March 2005 he travelled to Norway, Belgium and Germany, apparently as part of his efforts to build links between the European Union and Syria’s Kurdish community. While in Europe he met the exiled leader of the Muslim Brotherhood, Sadr al-Din Bayanoui.
Amnesty International is campaigning to stop torture and ill-treatment in the « war on terror ». For more information, please go to the campaign home page: http://web.amnesty.org/pages/stoptorture-index-eng
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AI Index: EUR 45/046/2005 20 October 2005