The doctrine of the separation of powers, by which governance is divided among three branches — the executive, legislative and the judiciary — is an old concept which was first developed in ancient Greece that continues to form the foundation of governance in most liberal democracies today.
The underlying rationale is to ensure that no single branch has more power than the other branches and to maintain a system of checks and balances on each. The importance of judicial independence is arguably the most important facet of this system, and indeed in any system of governance.
It is, therefore, a matter of great concern that senior politicians boast about how the government was able to pressure and coerce a supposedly independent judiciary to make a decision in its favour. Yet that was precisely what happened in late April 2012 when British Attorney General Dominic Grieve claimed that the European Court of Human Rights was responding to pressure for reform by ruling in favour of Britain. His comments, which were reported in the London Times and the Law Society Gazette, specifically referred to the decision of the European Court in the joined cases of Babar Ahmad, Abu Hamza, Syed Talha Ahsan, Khalid al-Fawwaz and Adel Bary. In that case, the Court shockingly found that extraditing all five to the US, where they face the possibility of life without parole in a supermax prison, would not constitute torture or inhuman and degrading treatment.
The decision was largely welcomed by the British public and press, not least because of the vitriolic hate campaign that has been waged against Abu Hamza for several years. There was no attempt to distinguish the cases of Ahmad, Ahsan, al-Fawwaz and Bary from Hamza’s and all were tarred with the same brush. Rather than all five being co-defendants in the same case, each case has a very different fact pattern with the European Court solely ruling on the issue of American prison conditions and likely sentences.
However, the decision was roundly condemned by human rights activists and legal commentators who, even prior to Grieve’s boasts of bullying the Court into submission, had commented about how it seemed the Court was capitulating to pressure from the British government. Conditions in the supermax prison ADX Florence in Colorado, known as the “Alcatraz of the Rockies”, have been described by a former warden as a “clean version of hell”, a sterile, concrete bunker where animal needs (food, clothing, shelter) are met but human needs for communication, activity and contact are scarcely acknowledged. Prisoners are restricted to one 15-minute telephone call a month and confined to their single cells for 23 hours a day. Virtually everything in the cell, including the bed, is made of concrete. Windows provide natural light, but are arranged so that only the sky can be seen through them. Prisoners eat meals in their cells. The Court heard evidence that inmates have spent over a decade in solitary confinement there (which the European Committee on the Prevention of Torture said should never exceed 14 days). UN bodies accept that prisoners spending long periods in solitary confinement are damaged by it, often causing derangement. The Court’s previous judgments have acknowledged that prolonged solitary confinement may violate the ban on inhuman and degrading treatment. Indeed, the UN Special Rapporteur on Torture, Professor Juan Mendez recommended as recently as October 2011 that because of its frequent use of solitary confinement, supermax prisons should be banned by US as a punishment or extortion technique. The New York Bar Association also reported in 2011 that “supermax confinement as practiced in the United States violates well-established international law.”
The Court ignored all of this, specifically refusing to even consider Professor Mendez’s intervention that he was “concerned that extradition of a detainee to a state that practices solitary confinement with limited recourse would violate article 3 (the article of the European Convention on Human Rights which prohibits torture, inhuman and degrading treatment).” The Court also refused to accept submissions from other parties directly affected by the supermax prison including current prisoners, their lawyers or human rights activists. Instead, it accepted the rosy picture of the prison painted by the government. The judges ruled that the men’s isolation would be “partial”, and that since the US is a country with a “long history of respect of democracy, human rights and the rule of law”, prisoners could petition the courts, and could earn more privileges (more recreation and communication) by good behaviour.
As retired human rights barrister Frances Webber pointed out, these conclusions sit strangely with the acceptance by the Court that there may well be prisoners at ADX Florence whose continuous confinement does violate the prohibition on torture or inhuman treatment. She concluded that the decision was “not a bona fide judicial exercise but a cop-out designed to avoid offending either the British or the US government.” Professor of Law Helen Fenwick also questioned whether the Strasbourg Court was essentially appeasing the UK and US governments suggesting the decision showed a “reluctance to interfere in the relationship between the US and UK in relation to extradition.”
In light of the Attorney General’s recent comments, it appears that the above commentators were correct in their speculation and that the European Court did make its decision, not on the basis of law and legal precedent, but on the basis of political expediency in the face of a series of attacks on it by the UK and US governments and the tabloid press. Indeed, on the eve of the ruling, the former American ambassador to the UN, John Bolton urged the UK to renounce jurisdiction of the Court mockingly posing the question as to whether British people wanted to be” an independent nation” or “ a county in Europe”.
This is a very troubling development in the jurisprudence of the European Court of Human Rights. Time and time again, it has robustly stood against the might of European states in attempting to trample upon the civil liberties and human rights of their citizens. Yet, this is a major turning point demonstrating that it too is at risk of becoming another pawn in the War on Terror to rubber stamp decisions made behind closed doors by governments. The reality is that the political ramifications of ruling in favour of Babar Ahmad and others in this case would have been too controversial for the world to digest; essentially that it was unlawful to extradite Muslim terror suspects from Europe to the “Leader of the Free World” because there was a real risk they would be subjected to torture, inhuman and degrading treatment. In light of the horror stories that continue to emerge from Guantanamo Bay, Bagram and the many secret CIA-run prisons around the world, this is something which everyone is aware of but which few are willing to officially confirm.