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Wednesday, 14 November, 2001, 09:42 GMT
War View: 'Internment undermines UK's traditions'

Laurence Lustgarten, barrister and professor of law at the University of Southampton, says the UK's proposed anti-terror legislation could violate the country's ideals.

Politicians fancy themselves as problem solvers, and like to be seen to be decisive.

The damage caused by outbursts of their zeal are suffered by others, usually relatively powerless and often some sort of folk devil, who are invisible as individuals to the wider public.

So it is with Home Secretary David Blunkett's proposals for internment of suspected "terrorists" - a procedure which was tried and demonstrably failed in Northern Ireland.

Mr Blunkett sees a problem. If a person who is not a UK citizen is found to be a threat to the UK's "national security" because of involvement in "terrorism" elsewhere, they can normally be deported to their country of origin.

Fundamental moral

However, in many instances such people face torture or death on their return home. In 1995 the European Court of Human Rights ruled that, where that fate is a realistic possibility, it would violate the European Convention on Human Rights to send them back.

The case involved Mr Chahal, a Sikh activist whom the UK was trying to deport to India where, the European Court explicitly found, the record of the Indian police in dealing with militant Sikhs was so bad as to give rise to a reasonable likelihood of brutal treatment.

The specific right involved - found in Article 3 of the Convention - is considered to embody such a fundamental moral value that it cannot be dispensed with even in the gravest circumstances.


Terrorism is real enough, and there unquestionably are interests that most people would agree deserve the title national security.

Mr Blunkett has therefore looked for a way round it. Someone in these circumstances will not be deported, but will be imprisoned despite having been convicted of no crime and had no opportunity to defend himself before a jury.

This imprisonment, though subject to some sort of periodic review - still no trial, no proof beyond a reasonable doubt, and no jury - will last so long as the home secretary, or his successor, but certainly no judicial authority, deems necessary.

The wheeze - for that is what it is - here is that whilst the convention in Article 5 requires that those arrested be placed on trial within a reasonable time, in times of "war or public emergency threatening the life of the nation" that right may be suspended (in technical terms, subject to "derogation") for the duration.

Real threats

Terrorism is real enough, and there unquestionably are interests that most people would agree deserve the title national security. But in the current debate these terms must always be placed in inverted commas.

In law, someone can be a terrorist even though he is involved in resistance to violent, oppressive regimes which commit atrocities against their own people - provided that regime works sufficiently closely with the UK in the international arena that our government is prepared to regard its security as part of our own.


We are told the power of internment will be used sparingly. We have only Mr Blunkett's word for that

This is not a hypothetical argument, but precisely what was involved in Mr Chahal's case, and was again used by the government when it tried to deport Mr Rehman, who was involved in resistance to what he, and many dispassionate observers, sees as the Indian military occupation of Kashmir.

Last month the House of Lords upheld this argument, saying that if the home secretary chose to regard protection of Indian interests as part of UK national security, that was not a matter in which the courts should interfere.

Whatever the courts may regard as appropriate for them, as members of the public in whose name the government acts, we ought to be asking hard questions about whether regimes that torture their opponents are ones to whom we should be cozying up.

All powerful

Thus although we are told by Mr Blunkett that the power of internment will be used sparingly, we have only his word for that.

But that word is all-powerful, for the courts have signalled their withdrawal from this theatre of battle. One cannot reasonably expect them to question with any rigour whether the conditions for derogation have, as a matter of fact, been satisfied.

Such an argument can successfully be made: the UK did so in Strasbourg with respect to extended detention for questioning of suspected terrorists in Northern Ireland in 1992.


Delays in Strasbourg are so great that no judgement is ever forthcoming in less than three years

That was in connection with a guerrilla war that had lasted 20 years, and the extended detention was a matter of several days only, and there remains a real question whether the current conflict is really an equivalent circumstance.

It may be that the European Human Rights Court will take a more robustly questioning approach, but delays in Strasbourg are so great that no judgement is ever forthcoming in less than three years - a point that no doubt has not escaped Mr Blunkett.

Violation

Someone who assists an organisation engaged in serious violence against this country should be prosecuted for specific offences, including conspiracy, and have the chance to defend himself before a jury.

If his acts are directed against a state which truly respects the rule of law and treats those who violate its criminal code with decency then, subject to certain procedural safeguards, he may properly be deported.

But to intern someone for acts never properly proven - or worse, for some possible intended future conduct - because the target is a regime so foul that it would be a fundamental human rights abuse to send him back, is a serious violation of the values this country is supposed to represent.


This is one of a series of differing opinions on the War on Afghanistan we are publishing. You can send your view about this or other articles by using the form below.

Your comments:

Both my father and grandfather were interned during WWII by the British Government, for reasons of "national security". While I appreciate that desperate times call for desperate measures, internment during peacetime, whether in Northern Ireland or elsewhere, smacks of an abuse of power. If the evidence exists, then the suspect should be tried and, if found guilty, sentenced. Holding people without charge while the state hunts around for the evidence puts everybody's liberty at risk and affords the terrorists a moral victory.
Mike Fehle, US

Every state has the ultimate right to protect its citizens against attack. Aliens who have no right to be in this country cannot complain if they are offered the choice of leaving it or being imprisoned.
Brian Harris, UK

Internment without trial is a clear violation of human rights that is unlikely to prevent terrorist activity and will greatly weaken our right to claim that our political system follows the "rule of law". We need to find a better way to make ourselves safe than locking up all who may have a reason to wish us ill.
Charles Steffey, USA

I think providing there is sufficient evidence to warrant suspicion, then there is no reason not to intern. However there must be practices in place to deal quickly with an individual's case. If the person is employed, then the interned person's job must be kept open and the state must bear the cost of this. If found guilty, then the person must be delt with swiftly otherwise they must be allowed to go back into society without a blemish on his record.
Bill Crawey, UK

Internment without the need of the state to prove a case for it is an abomination, seen until now only in tin pot dictatorships. If a person cannot be deported back to their own country because of severe human rights abuses are they a terrorist or a freedom fighter?
Andrew Worth, UK

The damage caused by the un-elected legal elite asserting their own views through endless jurisprudence is one of the gravest challenges for democracy. The author and others like him need to consider the legitimate rights of the majority. It is also incredibly patronising of him to consider the justice of another society as being less equal to our own and suggest the authorities in Kashmir are incapable of providing the justice applicable and appropriate for that society.
Ian Rainbow, England

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