Questions over 'terror flights'

Analysis
By Jon Silverman
Legal affairs analyst

Legal action in the UK over the issue of so-called "extraordinary rendition" flights depends on answers to a number of questions.

A police inquiry into allegations of 'torture flights' has begun

Have UK airports and airspace been used by the US administration and its agents to transport terror suspects to states where they may have been tortured?

If so, is the UK government a knowing party to such activities?

And has the government fulfilled its legal obligations by investigating allegations about such flights?

The leak of a Foreign Office briefing document may bring legal action closer. But the matter is far from clear-cut.

UN convention

Britain, in common with 140 states, is a signatory of the 1984 UN Convention Against Torture.

Article 4 of the convention makes complicity in torture an offence.

Thus, if the answers to the key questions establish credible evidence that Britain has been a knowing party to the transport of suspects to countries which practise torture, there would be an arguable case to bring before the UK courts.

The human rights organisation, Liberty, is considering legal action but describes it as a "last resort".

First, it needs facts. The Chief Constable of Greater Manchester, Michael Todd, has begun an inquiry into allegations about so called "torture flights".

But he has not reached any conclusions.

Liberty's concerns

In the light of the Foreign Office leak, Liberty's director, Shami Chakrabarti, has written to the Foreign secretary Jack Straw.

She says an earlier response by Mr Straw to Liberty's concerns is "troubling", chiefly because it appears to rely on assurances from the US Secretary of State Condoleezza Rice.

Liberty believes that the Bush administration's legal position is founded on the prohibition against cruel, inhuman and degrading treatment under the US constitution rather than its obligations under international law.

Legal experts say it would be no defence for the British government to cite assurances given by the US in any case brought in the UK courts.

Government lawyers are aware that to "assist or facilitate" so-called "torture flights" would almost certainly be a breach of the UK's obligations under international law.

Foreign Office 'handling'

But any court case might turn on whether allowing a US flight to land in or transit through UK territory constituted assistance or active help.

Before that point is reached, though, there is the question of how the facts are to be elicited.

Professor Philippe Sands, an authority on human rights and the law, said: "I would argue that international law imposes a positive obligation on the government to investigate these allegations of torture."

The leaked Foreign Office memo suggests that officials may be more concerned about the "handling" of the issue, presentationally, than with carrying out a thorough investigation.