August 14, 2005

Magic Bullets & Loopholes

I am a little perplexed. It has been suggested that some European states including France have found a magic bullet to create a loophole in the European Convention. This loophole enables their governments to deport persons they consider undesirable to states that regularly practice torture in the face of the strictures of Article 3 of the European Convention, the international Convention Against Torture and the UN Convention of Human Rights. After all, the argument runs, these states are signatories, so just how do they do it? The loophole seems to have attracted the attention of the Home Office reeling after the London Underground bombings in July. They have to be seen to do something. The United Kingdom proposes to obtain from the receiving states a diplomatic undertaking that the deportees will not be subject to “torture or inhumane treatment”. We have already signed such an undertaking with Jordan. Does France use this tactic to shimmy round their Article 3, and similar international obligations? If any organisation should know if France, for example, engages in these shenanigans it ought to be Human Rights Watch, Amnesty International or The International Helsinki Federation for Human Rights. All their websites are easy to navigate. Each organisation produces reports on most countries. Although there are criticisms of the way France deal with their deportations, these criticisms do not include accepting such undertakings Indeed, there’s no need for France to do so. They have never had any difficulty in returning aliens to many countries- in France the problems were Islamic guerrillas who claimed asylum during and after the Algerian Civil War . France has always interpreted its obligations under the various refugee conventions strictly. The French and German interpretations can be seen in the House of Lords decision in Regina v. Secretary of State For The Home Department, Ex Parte Adan Regina v. Secretary of State For The Home Department Ex Parte Aitseguer. The case shows clearly how Germany and France, signatories to all international conventions relating to torture and ill treatment, deal with asylum claims. Both appellants were asylum seekers. Adan, a Somali, claimed that if she were deported to Germany, the authorities there would return her to Mogadishu. There, as a member of a minority clan, she would suffer persecution and ill treatment. This evidence appears be have been unchallenged. Aitseguer was an Algerian. In his case, there was undisputed evidence that if he were deported to France, the authorities there would return him to Algeria, where, as a member of the Groupe Islamique Armé, he would be at the mercy of one or more of the opposing Islamic armed groups. Both Germany and France have strict interpretation of their obligation to refugees. In Adan’s case they considered because governmental authority in Somalia had collapsed, there was no state to persecute her. In the case of Aitseguer, the French argument ran that in Algeria there was no state toleration or encouragement of the threats against him. He was only at risk from other Islamic groups over which the Algerian government had little or no control. It is interesting the speculate whether a stricter interpretation by the United Kingdom of the asylum rules could help the government out of its present bind with the Chahal decision. And how a government that at the moment seems hell-bent on pressurising the judiciary could engineer such an interpretation. It seems unlikely our courts would depart from the principle established in Adan and Aitseguer should the Home Office argue that those who they wish to deport were at risk of inhumane treatment at the hands of various internal factions, but not at the hands of the state. It is believed that nine of the ten presently detained in maximum security prisons, pending their removal, are Algerians.


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