14 Jul 2017

Forum

An alternative to the Open University law forum where all things legal can be discussed. Also for having a little chatter about other things.

http://www.thingslegal.co.uk/forum

Human rights – torture and terrorism

The topic of terrorism and whether or not torture is permitted against those so accused is a topic that is rife with complications and arguments back and fought. Sadly, the debate usually becomes emotional and intellectual reasoning falls at the wayside all too frequently. When it comes to human rights, the rule of thumb to remember is that rights apply to all not just the one! So think of yourself, your neighbour, your family and what rights apply to them, and then apply those same rights to those accused of terrorism and/any other crime. Keep in mind that The Rule of Law applies in all circumstances.

Keep in mind as I have said before in my post on the Rule of Law: 

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2.

So, we can see that the State has an important role to play in upholding rights and preventing abuse of power, even when involving terrorism and terrorists.

Yet, following major terrorist attacks such as September 11, 2001 (9/11) in the USA and July 7, 2005 (7/7) in London, many states began to take a relaxed approach towards the prohibition of torture. Usually, the explanations given is that the relaxation is in the interests of national security.

Protecting rights is not always easy as it means protecting those who are often despised by society and governments. The UK, for example, has been criticised by civil society organisations for taking a more relaxed approach to the prohibition against torture when dealing with suspected terrorists (Human Rights Watch, 2006).

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© The Open University

For a more comprehensive look at how terrorism changed the landscape of human rights, I recommend Chapter 11 of The Rule of Law by Tom Bingham. It is interesting to note that the USA and the UK differed in three ways when dealing with terrorism:

  1. The USA treats terrorists as war combatants while the UK treats them as criminals. This makes a great difference in applying the law.
  2. The USA Congress passed a Presidential Military Order which authorised detention of suspects at any designated location worldwide with no guarantee of a trial, and if tried, it would be before a military commission where the standards of evidence was lower than applicable in ordinary courts and where the death penalty could be imposed. In contrast Westminster Parliament did not confer any comparative powers on the executive in Britain.
  3. The UK courts cannot try a defendant brought into the country by rendition (unlawful seizing of a person in one country in order for him to stand trial in another country) because this is a breach of international law and is regarded as a blatant and extreme failure to adhere to the rule of law. In contrast, the US courts does not care how the defendant appears before it.

Further discussion is outside the scope of this level of the LLB.

11 Jul 2017

Human Rights – torture

What is torture?

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ("the convention") provides us with the definition:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

(Article 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

Article 2(2) goes on to say:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.

(Article 2(2) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)

"No exceptional circumstances whatsoever…" makes it very clear that the right not to be tortured or suffer other cruel, inhuman or degrading treatment or punishment is an absolute right. (See previous post). Again note: just because it is an absolute right does not mean that it never happens! Call it what you like, many of the "enhanced interrogation techniques" of the USA is torture.

As can be seen, the definition of torture is broad and covers a wide range of "treatments". Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:
  • Falaka/falanga: beatings on the soles of the feet
  • Palestinian hanging: suspension by the arms while these are tied behind the back
  • Severe forms of beatings
  • Electric shocks
  • Rape
  • Mock executions
  • Being buried alive
  • Mock amputations

There are, however, also many ‘grey areas’ which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:

  • Corporal punishment imposed as a judicial penalty
  • Some forms of capital punishment and the death-row phenomenon
  • Solitary confinement
  • Certain aspects of poor prison conditions, particularly if combined
  • Disappearances, including their effect on the close relatives of the disappeared person
  • Treatment inflicted on a child which might not be considered torture if inflicted on an adult
(Giffard, 2000, pp. 13–14)
(c) The Open University

The prohibition of torture impacts on other legal issues, such as the evidence that can be used during a trial as well as the capacity of states to deport or extradite individuals to other states where they may be at risk of torture. Torture is criminalised by s134 Criminal Justice Act 1988 and the UK is signatory to the convention. The prohibition of torture exists at all levels of legal relations – domestic, national, and supranational.

Next: Torture and terrorism

9 Jul 2017

Open invitation

I don't know why I did not think of this before. Possibly because this blog is about MY journey through a law degree.

Still, there are merits in inviting guests to submit posts which are interesting and applicable to the law. So, take this as an invitation to submit any interesting articles, blogs, et cetera that you feel would be interesting to readers of this blog.

Note: I reserve the right to edit for clarity, accuracy, grammar et cetera.

5 Jul 2017

Introduction to Human Rights – part two

So what are human rights? To answer this I will jump for a moment into W102.
There is no formal definition of human rights – however, "’The jurisprudence of human rights’ (Shestack, 1986)" describe rights as "an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."
  • Entitlements
  • Immunities
  • Privileges
  • Powers
Of the above, can we say if any take precedence over the others? There is no fixed hierarchy of human rights. However, it has been observed that Western countries prioritise civil and political rights over economic and social rights, whereas in Third World and communist countries the reverse is true.
So where do our rights come from? Shestack again identified five sources of rights:
  • theology (religion) – from religious texts.
  • natural law – based upon "the law of nature", identified in the writings of Aristotle and John Locke.
  • Positivism – rights derived from the laws of the state. Writers such as Jeremy Bentham focused on what rights are actually written into the law rather than what ought to be rights.
  • Marxism – collective rights (of the society) are given preference as opposed to individual rights.
  • The sociological approach – perspectives developed from the rise of social sciences.
The above was included to avoid confusion at this stage, but will be encountered again in W102.
Rights can be broken down into three categories:
  1. Absolute Rights – these are rights that may never be breached under any circumstances, even under the conditions of war. For example, the right not to be a slave is an absolute right (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’ (article 4 ECHR). Note: just because it is an absolute right does not mean that it never happens!
  2. Limited rights – these rights have specific limitations built into the rights themselves. For example, ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
  3. Qualified rights – may be restricted to protect the rights of others or the interests of the public. For example,‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).
Most human rights are qualified rights. They may be restricted only to the extent necessary, and any further restrictions may be challenged by the judicial process.
Human rights may be separated into different categories:
Civil rights – Rights that protect individual liberty and secure equality under the law. These are often viewed as private rights and are in place to ensure dignity.
Political rights – Rights that ensure participation in the political process.
Cultural rights – Rights that ensure cultural identity can be preserved and practised.
Social rights – Rights that ensure equal participation in society.
Economic rights – Rights that concern economic security and independence in the workplace as well as in society.
(C) The Open University
Note: even though I have listed the categories above, does not mean that these rights are in a hierarchy. See paragraph 3. Rights may intersect in different categories as well. Human rights are usually described as being indivisible, interdependent and interrelated. For example, in order to exercise the right to vote an individual also needs basic literacy to read a ballot (right to an education). Additionally, states may create/identify new rights within its legal system.
Next: a discussion on torture.