The Grand Chamber of the European Court of Human rights will today decide on the fate of five British men facing extradition to the US.
This is the final stage of their legal fight against extradition, after the European Court on 10 April 2012 decided that extraditing would not breach their human rights. The issue at stake transcends the case of those men; the 2003 extradition act is in breach of many fundamental human and legal rights.
The act was designed and pushed through Parliament right after 9/11. The UK at that time was ready to do whatever it took to support and help the so-called US War on Terror. It resulted, among many other things, in the signing of an act that deprives Britons from basic legal rights as important as Habeas Corpus, and that creates the possibility to ship off terror suspects among others ‘alleged criminals’ to the US.
The UK-US Treaty has three main legalflaws:
- (1) It removes requirement on the US to provide prima facie evidence when requesting the extradition of people from the UK but maintains the requirement on the UK to satisfy the "probable cause" requirement in the US when seeking the extradition of US nationals,
- (2) its application is retrospective,
- (3) and it contains only very weak barriers to extraditions.
This biased, one-sided treaty is not only unjust it is also a legal heresy. Its article 8 allows the US to request any British suspect to be sent off, even though a crime has not been committed on the US soil and also even though the alleged facts do not constitute a crime in the UK. The US is neither obliged to produce any prima facie evidence to prove beyond reasonable doubts before a UK judge that a crime has been committed on US soil. Presumption of innocence is no longer relevant in this judicial mechanism. How is it that the UK would send its own citizens to another country? The UK is alone in the world in permitting the extradition of its own citizens to another country to face trial, without evidence, and for crimes, which, if committed at all, have been committed in the UK. Isn’t it one of the State’s first duties to protect its own citizens?
Even though the US can get any British citizens they request without, as we mentioned, not having to produce any evidence to support that claim, on this side of the Atlantic a prima facie case is required in order to request any US nationals to be extradited. Indeed, the UK meanwhile is required to show probable cause, as it is normally the case for any extradition process in accordance with international law and international customary law. This is simply called legal sovereignty; no one should be extradited before a Judge can hear a case and the evidence supporting it. As for the US, no one would ever be extradited from the US until a US court would challenge this probable cause as established by the American constitution. Why isn’t the UK protecting and shielding its own nationals from unfair extraditions?
The second issue with this act is held in its article 22 (1) and states“This Treaty shall apply to offenses committed before as well as after the date it enters into force.” This article is in breach of the principle of legality, a milestone in criminal law. The principle of legality requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively. Legality, in its criminal aspect, is a principle of international human rights law, and is incorporated into the Universal Declaration of Human Rights, the International Covenant on Civil and Political rights in its article 15 and in the article 7 of the European convention of human rights directly applicable inthe UK following the adoption of the Human rights act in 1998. The principle has particular relevance in criminal law and can be seen in the general prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal at the time of their commission or omission. The principle would also be violated when the sanctions for a particular crime are increased with retrospective effect, which is the exact case of the extradition act.
Another problem raised by this act is that the only barrier to extradition seems to be the risk of being imposed the death penalty in the requesting State (the US). However this barrier is not even absolute as article 7 of the treaty states"the executive authority may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out".The phrase 'may refuse' fails to meet the member states' obligations under the European Convention on Human Rights (ECHR) or fails to respect the European Court’s jurisprudence, which has put an absolute bar to extradition where the capital punishment may be imposed. It is hard to understand why the treaty could not affirm unequivocally that the UK will not extradite in death penalty cases. Let us hope, in the current political climate, that 'assurances' to this effect will be respected in practice.
Also, it is interesting to question the fact that the absolute prohibition of torture and ill treatmentas contained in article 3 of the ECHR, has not been included as a barrier to extraditions. Many reports and commissions led by the UN and other international organisations have denounced the prospect of life imprisonment in solitary confinement in America’s notorious Supermax facilities, as ill treatment and torture. Moreover the US judiciary and penal system is well known for its contentious issue of plea bargain where many times innocent defendants are pressurised and forced to enter into negotiations with the office of the prosecutor to get a lighter sentence (10 or 15 years at least) in order to avoid the 75 years or life sentence they might end up getting if a trial occurs. Especially, if you are a Muslim defendant in a terrorism case in front of a jury, your chances of getting a short sentence are extremely thin. Unfortunately, this is the macabre picture of the US justice system and with all this knowledge in mind, how has it become that article 3 has not been seen by the UK as a possible barrier to extradition? (For more details on the US penal and judiciary system here is a report written by CagePrisoners here
It is fair to say, that this act is everything but democratic and the fact that there was no parliamentary debate of this treaty just show how flawed it is. It was drafted by Home Office officials and their US counterparts and then signed on behalf of the UK by the Secretary of State and then published two months later.
Extradition has been used for centuries however framed by strict legislation. It is meant to prevent anyone from avoiding justice, however when a crime has been committed in a given State, the suspect should be tried and if appropriate sentenced in that same State, in which the evidence was found, and the relevant witnesses are present. Extraditing those men would be a “double sanction” as they will face prison time in a country where they have never step a foot in their entire life, away from family, friends and probably legal aid.
For all those reasons this act needs to be revised if not suppressed in its entirety urgently. Two separate Parliamentary committees have concluded, after lengthy enquiries, that the Extradition Act needs to be amended, firstly so that countries requesting extradition should support their requests with evidence, and secondly so that a judge can determine whether or not the UK might be a better forum for any trial.These conclusions were confirmed in a Commons debate in December, where there was unanimous, cross-party support for an urgent amendment to the laws. Every single member of the current Government who was in Parliament in 2006 tried to make exactly the changes to the law that are now being called for, as mentioned by David Birmingham from the NatWest 3 in a meeting that took place in Parliament on 20 June. The coalition many times mentioned there is a need for modification, why hasn’t it been done yet? Are they just buying some time for political reasons and obedience to the US? Five men are facing imminent extradition, time is ticking, and their extraditions must be upheld until this infamous act is reviewed.
The five men include a Saudi Khalid al-Fawwaz and an Egyptian Adel Abdul-Bary, who are blamed for their alleged involvement in the 1998’s bombings of US embassies in Kenya and Tanzania. Both have been detained without trial for over 12 years each and both were arrested before in the UK for the same crimes but released without charge. Also among the five is Abu Hamza al-Masri, a disabled British imam, who has already served prison time being convicted of inciting hatred. He should have been released from prison over four and a half years ago but his detention has continued due to an extradition request from the US for his alleged involvement, from the UK, in setting up a training camp in the US in 1999. The last two men are Babar Ahmad and Talha Ahsan, both British Muslims, accused of running websites from the UK in support of protesters in Chechnya and Afghanistan during the 1990s. Ahmad and Ahsan have been in prison without trial for 8 and 6 years respectively. All of them are wanted in the US for alleged crimes committed in the UK or elsewhere and years before the enactment of this act. A shameful record in the history of British justice.