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UN High Commissioner for Human Rights Addresses BIICL-Chatham House Seminar

On Wednesday 15 February 2006 at a joint BIICL and Chatham House event, Louise Arbour, UN High Commissioner for Human Rights, gave an engaging talk on global counter-terrorism measures. Lord Bingham, Chairman of the Institute and himself an expert in the area, chaired the event.

Ms Arbour's comments focused on the changing nature of international crime and the fresh challenges that the detection and prevention of terrorism present. She noted that as traditional criminal law is designed to address conduct ex-post facto, that law is inappropriate to deal with the investigation and intelligence-gathering necessary to combat terrorism.

She expressed her concern over the existence of secret detention centres which undermine both the human rights of the individual detainees and the rule of law in democratic society, and deplored the absence of accountability of governments on this issue. She therefore called for governments to reveal whether such centres existed in their territory or whether they had co-operated with other states establishing such centres. She also called for details of the numbers of detainees and the length of their detention, whether the Red Cross had access to all detainees and whether these people would be brought to trial. Under traditional criminal procedure, the ultimate aim is to bring wrongdoers to trial so that justice can be done. The purpose of detaining people in these centres is entirely different, and is aimed at gathering information in order to thwart potential incidences of terrorism. There appears to be no intent to bring such individuals to trial. This represents a fundamental shift in focus. People are detained before a crime has been committed, and therefore the guarantees of due process which a subsequent trial would afford are removed. Moreover, were these detainees ever to be brought to trial, the conditions of their arrest and detention would likely fall so far short of acceptable international standards that the state in question would deny jurisdiction.

Ms Arbour also denounced the practice of governments seeking to obtain diplomatic assurances from other states that persons returned to their territory will not be subjected to torture. This practice she said, completely undermines the well-established and important principle of non-refoulement. The States involved are, in most cases, signatories to binding Conventions which prohibit the use of torture, and therefore it ought to be accepted that torture would not occur in any event. She pointed out that if a State seeks such an assurance they must be fully aware that a risk of torture exists, and to still be prepared to return the person in violation of their own international obligations thus defies logic. She noted that, in some cases, mechanisms were put in place to monitor returnees, but that these were of limited use, given the difficulty of constant observation and the unwillingness of returnees to volunteer information on their torturers for fear of reprisals. This system of seeking ad hoc agreements is incompatible with the rule of law, undermining what has already been accomplished in international conventions, and should have no place in an international legal system which purports to respect human rights.

Ms Arbour's lecture coincided with the publication of the UN High Commission of Human Rights Report on the situation of detainees in Guantanamo Bay. A five person investigative committee consisting of the Chairperson of the Working Group on Arbitrary Detention, the Special Rapporteur on the Independence of Judges and lawyers, the Special Rapporteur on Torture, the Special Rapporteur on Freedom of Religion and Belief and the Special Rapporteur on the Right to Enjoyment of Physical and Mental Health prepared the report based on interviews with former detainees and lawyers acting on behalf of inmates, media reports, reports by non-governmental organisations and US government answers to a questionnaire.

When questioned on the topic of Guantanamo Bay in the question and answer session following her speech, the High Commissioner expressed her support for the report although she would not endorse every recommendation it made. She stated her belief that the possibility of judicial protection by the Supreme Court for detainees had come too late to remedy effectively the situation and said she could see no viable alternative to closure of the facility.

She concluded by observing that the question which we ought to ask ourselves when attempting to deal with the threat of terrorism is "How much of our own liberty ought to be sacrificed in order to protect the security of society?" The question that we in reality have been asking is "How much of other people's liberty are we prepared to sacrifice?" The failure to understand who suffers, has perverted our perceptions of terrorism and the methods we have developed for dealing with it. We must seek to reassert the proper balance.

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