Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Professor Sir Nigel Rodley KBE

  I am writing in response to the Committee's invitation to make written submissions prior to their short inquiry into the forthcoming emergency anti-terrorism Bill, which will be published during the week beginning 12 November.

  It is evident from the experience of my mandate as Special Rapporteur of the UN Commission on Human Rights on torture (as well as that of other Special Procedures of the Commission) that, in times of conflict, governments are tempted to abandon the rule of law in the name of a concept of necessity. Thus, they resort or turn "a blind eye" to unlawful practices that they perceive, however erroneously, will permit them to obtain important information or confessions. Torture is the most typical such practice. The fact that it is a crime under their own law as well as international law is overlooked. Any such temptation in this direction as part of the campaign against the sort of terrorism that was the 11 September abomination must be resisted.

  Suggestions have been heard also that, in order to avoid States becoming safe havens for such terrorists, the international law rule preventing the sending of suspected terrorists to countries where they face torture should be ignored. That would simply amount to complicity in torture and must be similarly resisted.

  It does not follow that safe havens for terrorists are the only alternative. That would be unconscionable. The attack on the United States of America was undeniably a crime against humanity. Unfortunately, the Rome Statute of the International Criminal Court (ICC) is not yet in force, otherwise it could have jurisdiction either directly or by Security Council reference. But there is nothing to prevent the Security Council establishing an ad hoc tribunal, as with the former Yugoslavia and Rwanda, to deal with those involved in the perpetration of the 11 September atrocity.

  In addition to measures involving a potential international jurisdiction, the possibility of universal jurisdiction should not be overlooked. In respect of certain crimes, international law permits and, in some cases, requires States to exercise jurisdiction on the mere basis of presence in their territory. These crimes undoubtedly include crimes against humanity and some forms of terrorist activity. The problem is that too many States have not endowed themselves with the necessary legislation. The UK is one of these. Indeed, a number of us argued that the UK should make crimes within the jurisdiction of the ICC also triable in the UK courts. The Government's unwillingness to follow that advice was never satisfactorily explained. Now is the time for them to reconsider their earlier reluctance.

  In sum, it is necessary to ensure that those responsible for this atrocity are brought to justice for their appalling crime under international law and this must be achieved without committing another crime under international law. To fall into that trap would be to permit those who are behind or defend or apologize for the criminals to assert that the proclaimed values of the international community are hollow and certainly no better that the travesties of principle that they claim to uphold.

November 2001

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