by Kevin Smith
New Year’s resolutions offer us the chance to give up various things. When it comes to human rights, we should hang on to what we’re doing well.
It’s a new year, and with the flipping of the calendar page comes the usual push to change, to reform, to be better. I will drink less. I will eat less. I will exercise more. The resolution revolution is upon us.
Needless to say, pondering my could-be-healthier lifestyle got me thinking about human rights. Yes, you’re right – it’s a tenuous link, but hear me out.
Ultimately, governments who care about human rights and try to meet their obligations under human rights law face similar challenges to individuals trying to stay in shape. It’s a constant battle: there is no one-session solution, whether in Parliament or in the gym. Doing the right thing can be painful. Regulating one’s own behaviour requires not only will-power, but long-term thinking. Not doing the right thing might be more convenient in the moment, but ultimately, could lead to shame and embarrassment.
Like diets and gym routines around Christmas time, human rights close to home have taken a bit of a beating lately. Most notably, the US Senate report into the CIA’s use of torture showed what even a free, democratic country can stoop to when it feels afraid, as America did in the wake of September 11th. It’s not comfortable reading.
Closer to home, a less high-profile example was addressed by the European Court of Human Rights (“ECHR”) in the case of Trabelsi v Belgium.
In 2001, Belgian police searched Mr Trabelsi’s home in Brussels and a local café which he regularly visited. They discovered false passports, automatic weapons and ammunition, chemical formulae that could be used to make explosives, large quantities of chemicals, and detailed plans of potential targets, including a US Embassy. Mr Trabelsi admitted a number of terrorism-related offences and in 2003 was sentenced to ten years’ imprisonment.
While Mr Trabelsi was in prison, the United States indicted him in absentia and requested that he be extradited to face trial on four terrorism-related charges in Washington, D.C. In November 2011, his extradition was granted. However, Mr Trabelsi sought and obtained an interim measure from the ECHR preventing his extradition pending the resolution of his appeals in Belgium, and pending the ECHR’s decision in Vinter and Others v United Kingdom, a case which dealt with the legality of whole-life sentences.
From the time Mr Trabelsi finished serving his Belgian sentence in June 2013, he had remained in custody pending extradition. The ECHR informed the Belgian Government that it would examine Mr Trabelsi’s case in October or November of that year. Before it could do so, in October 2013, the Belgian Government extradited Mr Trabelsi to the United States, in breach of the interim measure.
The case is interesting from a jurisprudential standpoint because it appears to unite principles from the Vinter and the Abu Qatada cases. In the former, the ECHR held that prisoners had the right to know at the start of a whole-life sentence under what circumstances that sentence might be reduced: one judge called it a “right to hope.” In Abu Qatada’s case, the ECHR ruled that the UK government could not extradite a radical cleric without guaranteeing that his absolute rights under the European Convention of Human Rights not to be tortured and not to have evidence obtained through torture used against him would be upheld in the receiving country (Jordan). In Trabelsi, the ECHR ruled (following Vinter) that Mr Trabelsi’s rights under art.3 of the Convention (which prohibits torture or degrading treatment) included a right to know at the outset of a legal process that, if a life sentence was ultimately handed down, it would eventually be possible to reduce it. However, following Abu Qatada, the ECHR also applied this reasoning in the context of extradition: if Mr Trabelsi was to be extradited legally, these guarantees needed to be in place in the destination country before he was removed from Belgium. Here, they were not – but Belgium extradited him anyway. The ECHR said that Belgium should pay Mr Trabelsi, who remains in an American jail, 100,000 euros for his troubles.
This type of cynical disregard of core legal obligations is the kind of behaviour typically seen from rogue states or authoritarian regimes, not Western European democracies. For the Court’s champions and apologists – count me among them – the case is a worrying harbinger: the clear risk is that governments in Convention States will henceforth take a pragmatic approach which places compliance with the Convention second to political expediency. UK Home Secretary Theresa May spent millions of pounds over many years to give Abu Qatada due process and to achieve his extradition in a manner compliant with the Convention, only to see Belgium extradite a similar figure for a hundred thousand euros and a telling off from the Court. She must be seething – and in the wake of Trabelsi, one wonders if Ms May would go to the same effort twice.
In the year ahead, the UK Government is going to face some big decisions about how Britain approaches human rights. With the Conservatives having (again) committed to repeal the Human Rights Act as part of their General Election platform, everyone in the UK should pause to consider the role the legal protection of human rights plays in underpinning the kind of society we want.
At its heart, the idea of human rights suggests that there are a few inalienable rights which apply to everyone, regardless of what government is in power, or how inconvenient it might be to uphold them. But if the idea is to carry any water, it must be pervasive: the core, absolute human rights have to apply all the time. Otherwise, that which is meant to protect us from abuse by authority becomes subject to the discretion of that authority.
This is why Ms May’s handling of the Abu Qatada case deserves sincere praise: even though it was inconvenient, she took all the steps necessary to ensure that even Abu Qatada, suspected terrorist, benefitted from due process. In a case where it would have been cheaper, easier, and more popular to disregard the UK’s human rights obligations, instead, the Government took the hard route. But they could easily have done otherwise. The Trabelsi case shows push coming to shove (if that’s not too ill-fitting a metaphor in the context of an extradition case), where political pressures trumped legal obligations.
The ECHR must bear some blame for this. If it continues to insist that all violations of absolute convention rights such as art.3 are equally serious, and a potential barrier to extradition, then not only will the public begin to resent the Court, but governments will follow Belgium’s lead and just ignore its rulings where they are inconvenient. Common sense tells us that not all art.3 breaches are created equal: a country’s failure to ensure that a prisoner had regular access to new eyeglasses as his prescription changed might well engage art.3 – but to bar extradition on this basis as a potential violation of art.3 (while consistent as a matter of legal principle) would be ridiculous.
The biggest threat to the Court and to human rights in Europe must be a decline in legitimacy; in other words, not being taken seriously. When the culprits behind this legitimacy deficit are governments at the heart of the project, the risk is particularly severe. Why should Russia comply with the Convention and with ECHR judgments if Belgium will not? Why should anyone?
For New Year’s resolutions to work, they have to be achievable goals. Setting them requires commitment and an awareness of the long-term benefits they promise to bring, but also demands elements of moderation and pragmatism.
Similarly, the way forward in Europe requires governments to re-commit to the universal quality of essential human rights, for the ECHR to consider how to reconcile legal principle with realpolitik, and for both to realise that they need each other: if Western governments want to promote a European standard of rights and values among newer Convention members or abroad, the only moral high ground comes from their own compliance with that same standard, whether or not it is convenient. But conversely, particularly where foreign policy or an extra-territorial dimension is involved, the Court must consider whether it can accommodate some of the competing demands of international relations while remaining jurisprudentially consistent, and not demand an impossible standard of its member governments.
A case commentary by the author on Trabelsi v Belgium is scheduled to be published in a forthcoming edition of the European Human Rights Law Review. Although minimal, there is some overlap between that commentary and this piece.