International Obligations and Responsibilities of Governments - Essay Example

?Human Rights Law Extra ordinary rendition refers to apprehension of suspects for extrajudicial transfer from one to another. The act involves arrest of a suspect from a foreign soil after which one is transported to a foreign detention facility without observing the available legal channels. The arrest is conducted without the knowledge of the suspects’ family or the individual himself. The atrocities committed in September 11th, 2001 not only gave rise to the so-called global war on terror, but also led to a campaign against international terror as outlined in the United Nations Charter. As part of the global war on terror, governments have embraced various torturous tactics including extraordinary rendition against the suspects. Basically, the suspects are not given a chance to challenge their arrest in court and are held incommunicado. They are held and interrogated through methods that amount to torture and breach of human rights. In most cases, the suspects are tried by foreign governments and sometimes executed. Recently, a study carried out by the European parliament concluded that extraordinary rendition results to multiple human right violations such as unwarranted arrests, torture, false trials, inhumane treatment, and deprivation of liberty and to the worst death. According to both Human rights committee and committee against torture, extra ordinary rendition violates a number of provisions set out in conventions against torture. Under the Rome Statute, which established the International Criminal Court (ICC), rendition infringes on several human rights including deprivation of liberty as outlined by Article 7(1) (e), disappearance of individuals and Article 7(1) (i) torture Article 7(1) (f), which are termed as an attack on civilians. The Security Council resolution of 1483 requires all nations to play their part under the Geneva Convention of 1949. According to General Taguba, all detainees should be accorded the full protection of Geneva convection. Article 49 of the fourth Geneva Convection requires deportations and forcible transfers of persons to be protected despite the underlying motive. The European Court of Human rights requires that all movement of people from one jurisdiction to another regardless of whether it is deportation, extradition or rendition to observe the procedures set out under international and domestic laws. In Bozano v. France1, the court ruled that the procedures laid down affects the legality of holding an individual besides the validity of the transfer. The United Kingdom is not bound by any treaty in ensuring that its airports and airspace are not used for rendition practices. However, cruel and inhumane acts of torture are not allowed by United Nations Commission Against Torture (UNCAT) as defined by Article 1. In addition, Article 16 states that, “… in particular, the obligations contained in Articles 10,11,12 and 13 shall apply with substitution for references to torture or references to other forms of cruel, inhumane or degrading treatment or punishment”. These Articles refer to rules that should be observed during the interrogation process. Article 3 of UNCAT prohibit forceful extradition of any individual to a state where one is believed to be susceptible to torture and other forms of ill treatment. However, the UK is bound by the International Covenant on Political and Civil Rights and the ECHR not to engage in extradition of any person to any place that pose risk for ill treatment or torturous acts. Article 3 of UNCAT provides that all transfers including those that are extralegal should comply with the legal procedures of extradition. Otherwise, breach of the principle could result to state responsibility. The transit state and the sending state may avoid liability under the international law through diplomatic assurances between the officials of the two states that the person in question will not be subjected to ill treatment or torture. Moreover, it is argued that such diplomatic assurances cannot guarantee legality of transfers as the risk of torture still exists. In Chahal v United Kingdom2, the court ruled that it would be more objective if diplomatic assurances could be used to allow responsibility in extrajudicial transfers. Further, Article 16 adopted by International Law Commission (ILC) says, “a state that aids another state in the commission of an internationally wrongful act is internationally responsible for doing so if; that the state committed the act bearing in mind the circumstances of the internationally wrongful act and that the act would be internationally wrongful if committed by that the state”. In A (FC) and Others v. Secretary of State for the Home Department,3 Lord Bingham stated that UNCAT barred anyone from ill treatment and torture and instructed the UK government to probe any such allegations without being impartial. However, allegation that individuals are being transported to other torture cells via UK would mean a breach of UNCAT and as such should be investigated thoroughly. UK being a signatory to UNCAT, is required under Article 11 to maintain systematic interrogation rules, techniques as well as arranging for custody and fair treatment of all kinds of arrest and detentions that falls under its jurisdiction. In addition, UK is bound to shield its citizens by making sure that none is subjected to any act that may constitute a violation of international law to which it is a party. This requirement further requires the state to unravel any claim of torture that could have occurred under its territory. International obligations and responsibilities of the UK Article 1 of European Convention on Human Rights outlines the obligations on nations that should ensurethat people are not subjected to torturous acts. The Article further requires states to ensure security of every citizen within their jurisprudence. Under the International Human Rights Law, the UK is obliged; to put in place measures that ensure prosecution of individuals who engages in acts of torture, put in place effective measures to curb acts of torture, carry out official investigations in any allegations of massive ill treatment by state agents and lastly to refrain from returning a person to a state where it is highly believed there exists a danger of being tortured. Obligations and responsibilities of UK under domestic Laws Besides obligations and responsibilities under International law, a number of domestic offences would also apply to extra ordinary rendition. For instance, it is a criminal offence to subject an individual to severe pain, to aid and abet acts, which are offences and contrary to British laws. Detaining people against their will within UK jurisprudence is considered an offence of false imprisonment, and finally, according to House of Commons, it constitutes an offence by taking a person away either through force or without obtaining consent of arrest. Limitations on the obligations of the UK in the context of fight against terrorism Since UK is bound by the international law, it is thus prohibited from carrying out acts which are torturous to terrorist suspects. However, the obligations under both international and domestic laws goes contrary to the fight against terror as harsher interrogation techniques needs to be applied in deriving more information on terror. As such, the UK is prohibited by the international laws to engage in any act that constitutes extradition, forcible transfer or torture. This is because such an act could lead to exposure, of the government or individuals concerned, to the legal process. However, any act of aiding or abetting extraordinary rendition through the use of British ports is also considered a crime, which if confirmed should be fully investigated and the perpetrators prosecuted. The role of diplomatic assurances In some circumstances, the government may be forced to extradite, expel or even transfer an individual to another country especially when dealing with suspected terrorists who are not natives or to whom criminal charges are issued in a third country. However, for a case of extradition to a nation where the suspect runs a risk of being tortured, the government may at times seek diplomatic assurances to ensure that no ill treatment or torture will be effected after the transfer of the suspect. This places the concerned government within the law and in line with the non-refoulement principle. Referring to Chahal v the U.K 4case, the UK tried to extradite a terrorist suspect to India, which was rejected by the European Court of Human rights. This case led to a judicial precedence; the Chahal Principle, which complemented the non-refoulement principle in European countries. Despite the Indian government guarantee that Chahal would not suffer any act of mistreatment or torture, the court ruled that, the diplomatic assurances negotiated under this case would not give adequate security as torture was too endemic and one of the most enduring problems. Entitlement of caravans to private and family life Though the meaning of private life tends to be broad, it mainly refers to the sphere within which an individual can comfortably fulfill and nurture his personality, both to others and to the entire world. Caravans, on the other hand, are individuals who are on holiday and thus living in makeshift caravan sites. Despite not being residents, the claim by the local authorities that private and family life does not apply for caravans is not true. According to Article 8 of the European Convention on Human Rights, everyone has the right for respect of his family and private life. It goes further to state that, there should not be interference, whatsoever, by any public or local authority on the exercise of this right except in accordance with the law. In addition, the Caravan Act provides that only the site owner should be permitted to enter the pitch without prior notice, which should be for the reason of carrying out essential repairs, for electrical, water or gas meter readings or to deliver written communications. Otherwise for any other reason, the site owner should give at least a fourteen days written notice indicating the reason of entry. The Caravan Act also provides that it is illegal to either harass or forcefully evict a caravan without a court order. Caravan residents should be entitled to the enjoyment of their pitch as their home. Caravan Act 2011 provides more rights and security to people who live in Caravans as their permanent homes. Therefore, a claim by the local authority on eviction can only be practiced if the due process of law is followed. Otherwise, forceful eviction without observing the laid down legal process would be itself against the law and thus illegal. Bibliography A (FC) and Others v. Secretary of State for the Home Department, [2005] UKHL71, para 34 (Lord Bingham of Cornhill). Bozano v. France (1986) 9 EHRR 297. Chahalv. The U.K ., (22414/93) [1996] ECHR 54 (15 November 1996) Read More