A recent High Court interim ruling means the Home Office may be forced to reverse its attempts to essentially redefine the meaning of torture in the context of detaining survivors of it.
Now, you probably won’t be surprised to read that torture is somewhat frowned upon – even by lawyers. Actually, especially by lawyers; freedom from torture is one of the few human rights that is absolute under the European Convention on Human Rights (specifically Article 3), meaning that it is illegal no matter what – it cannot even be derogated from in times of war or national emergency. For context, even the right to life is a ‘qualified’ right because there are situations where the taking of life is legal.
Nevertheless, some have attempted to shift the goalposts by acknowledging that, yes, torture is wrong – but that certain actions which might at first sight seem to look rather a lot like torture are, in fact, not torture at all depending on the context. A bit like when you say you say you fit the definition of ‘hungry’ when a pepperoni pizza (the king of pizzas) is offered, but not when your nan makes a sponge-cake dry enough to be an actual sponge.
One such example of this legal voodoo is the Home Office’s redefinition of torture for the purposes of whether or not a survivor of torture should be detained for immigration purposes (e.g. for questioning). This redefinition came on the heels of a scathing review of the use of detention by the Home Office generally.
Torture, you might say, is an act pure and simple. Not so, say the Home Office – it also depends who has done the act. Specifically, only agents of the State (e.g. police, paramilitary) can commit torture in this context. Conversely, if a non-State agent (e.g. ISIS and other terrorist organisations) carries out the torture then, err, this isn’t torture anymore.
The Home Office may contend that this definition is consistent with the UN Convention Against Torture Article 1(1), which restricts torture essentially to public officials or those acting in an official capacity. However, Article 1(2) allows for the interpretation of torture to be wider via national legislation or an international instrument – such as Article 7 of the International Convention on Civil and Political Rights, which bans torture outright regardless of the actor, and to which the UK is a party.
Mr Justice Ouseley’s judgment means that the Home Office may have to revert to its former definition of torture which, rather more sensibly, included acts committed by non-State actors. The hearing was only for interim relief: a full hearing is expected in early 2017.
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