Justice must be done and it was done

By Neville de Silva

Thank heaven for British justice. Unlike God’s mills it might not grind exceedingly well though it does grind slowly, sometimes too slowly.It does get it wrong too and some of the judgments of recent commissions of inquiry might seem a shade contrived to get the government and politicians off the hook. But when it does work, it works well. British justice still seems the best protection against growing authoritarianism of government which civil libertarians believe is encroaching on the rights of the people. The media may expose, the public may criticise. But ultimately the one institution which the people could turn to for redress from the excesses of the state and violations of civil rights is the judiciary.

But if the judiciary is to be the bastion against creeping authoritarianism it must remain fiercely independent and its integrity beyond question and prepared to uphold the law even against the government of the day. While people here are increasingly cynical about politicians and even law enforcement agencies, their faith in the judiciary remains intact.

It was fortified last week by a very important judgment of the House of Lords, the highest court in the land, when it ruled against the UK’s Secretary of State for Defence.

It might come as a real surprise to some in Sri Lanka who believe that human rights could be summarily dispensed with in the fight against terrorism, particularly when they understand the background to the case that gave rise to this important judgment. They should read, absorb and digest the ruling. The implications such decisions could have in the future when our own cases of alleged abuse are assessed by or before international bodies and those suspected of abuse find themselves in situations from which they cannot extricate themselves with the ease they often do, need to be addressed.

Those in power should remind themselves that provisions of the UN Convention on Torture could well be used to ensnare human rights abusers who violate them if and when they step on soil where such inhuman and degrading acts against our fellow beings are considered more seriously by the public and judicial notice taken of public complaints.

The House of Lords judgment goes to show that troops even when they are fighting abroad are not completely immune and that it is not only the Geneva Convention that they should adhere to. It was a landmark decision because the law lords held that British authority acting outside its territory – outside the UK – could still be liable for human rights abuses in certain special circumstances.

What is also important is that this judgment concerned an Iraqi citizen who died as a result of beatings while in British custody in Iraq. It was not simply a case of a British citizen’s rights being violated while in British hands outside the United Kingdom. The background is this. A 26-year-old Iraqi Baha Mousa, a hotel receptionist was beaten to death by British soldiers while he was in British custody six months after the invasion of Iraq. He had 93 injuries to his body.

A military courts’ martial, apparently the most expensive one in Britain’s military legal history, had found no one specifically responsible for Mousa’s death and five men were cleared except for some lowly soldier who was found guilty of general abuse of detainees.

So the military could not or did not pin responsibility on anyone for this death under torture within two days of Mousa’s detention.

Thereafter his father filed action in the UK. The Divisional Court found in favour of Mousa’s family. The Court of Appeal in December 2005 upheld the findings of the lower court over the UK’s obligations under the European Convention on Human Rights which is enshrined in the UK’s own Human Rights Act of 1998.

Three points need to be recognised here. British troops operating abroad that effectively and consciously restrict the liberty of an individual are required to uphold European Convention on Human Rights obligations. Simply because such actions take place outside of Europe is not material.

The British courts do have jurisdiction over such cases and it is not necessary to seek redress at the Human Rights Court in Strasbourg.

Shami Chakrabati, director of the human rights watchdog Liberty made a valid point. She said the government cannot try to pretend that the killing was the result of rogue behaviour by a few bad apples among the soldiers rather than the systemic failures in planning the aftermath of the war.

Moreover there was a secret change in policy to permit soldiers to use torture techniques. She was referring to a decision taken by the Ted Heath government in 1972 to ban several forms of physical and psychological torture that British authorities use in Northern Ireland when fighting IRA terrorism.

Though Britain at the time was fighting its own war on terror and British security forces were mistreating detainees, Prime Minister Heath, appalled by what was happening, banned it in “all foreseeable circumstances.”

But it seems that NATO policy allowed such mistreatment and the Ministry of Defence in the Blair government jettisoned the policy of the Heath administration.

While British soldiers were mistreating and torturing detainees in Iraq and the US had its own Guantanamo Bay to carry out its abuses, the Blair government was also complicit in permitting the use of British airports for the CIA’s “rendition” flights that carried detainees to countries where torture could be carried out in secret prisons. Poland is one of the European countries named.

So when the West is accused of double standards in the application of human rights law there is a point to be made. But one needs to distinguish between the acts of western security forces and their governments and the strong antipathy of their peoples to such abuses and the refusal of the judiciary to countenance such conduct, last week’s ruling being a case in point. Further more freedom of speech and association been ingrained in civil society despite efforts at various times to restrict or contain them, the public has not been cowed by official or political pressure.

Fortunately criticism of the security forces by the public or judiciary has not been castigated as unpatriotic. Nor has it been characterised as affecting the morale of the security forces.

The criticism of the intelligences services MI5 and MI6, the Special Branch and other anti-terrorist arms of the Metropolitan Police in the media and in public debate have not produced neurotic counterattacks that have labelled critics traitors.

Rather, if there has been counter-criticism as indeed there has been, it has been sober debate and not psychotic ranting by ministers or anybody else.

But where there is a prevailing view that the fight against terrorism must necessarily require the abandonment of some of our cherished values and indeed our obligations under a raft of human rights treaties we have signed, even criticism could be viewed as a conspiracy to undermine the war on terror.

In such circumstances the judiciary must be the bulwark against creeping authoritarianism and deepening despotism. Justice must not only be done, it must be seen to be done. That is a basic principle for any society that respects and upholds the rule of law.