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.