UK-Libya prisoner transfer treaty raises serious human rights concerns

The treaty is the first bilateral “no consent’ prisoner transfer arrangement the UK government ratifies after the Police and Justice Act 2006 removed the requirement in the Repatriation of Prisoners Act 1984 for the consent of a prisoner to transfer in each case. Basically the treaty goes even further than the practice of diplomatic assurances;it does not include any human rights safeguards concerning matters such as treatment, conditions and independent monitoring.

The Joint Committee notes at p.11:

The Treaty on the Transfer of Prisoners does not contain even those human rights safeguards contained in the MOU which the UK courts [in casu SIAC and the Court of Appeal] have found to be insufficient to remove the real risk of torture of those it was sought to deport on national security grounds.(…)

We are also concerned about the adequacy of the recourse to a court for a prisoner who wishes to challenge on human rights grounds the decision to transfer them. A prisoner who a court recommends for deportation at the time of sentencing has a right of appeal against the recommendation for deportation. However, a prisoner who the Secretary of State subsequently decides to deport, while they are serving their sentence, has no right of appeal against that decision, only the right to apply for judicial review.

The UK Government replied that:

The judgments in question reflected the particular circumstances of the individuals concerned who were found to be threats to Libya’s national security. The decision has no direct relevance to prisoner transfers. Decisions to transfer a particular prisoner under this PTA will likewise fall to be decided on the basis of the particular circumstances of the proposed transfer. In proposing the transfer of any prisoner under this PTA HMG shall of course act consistently with its obligations under ECHR and the Human Rights Act.

Any decision to proceed would have to be compatible with the Government’s obligations under the Human Rights Act and with ECHR and would be subject to judicial review.

As outlined above, any compulsory transfer of a prisoner under this PTA would be subject to an Article 3 ECHR assessment and would have to be compatible with our international obligations. Where it is thought appropriate and necessary in any individual case, the Government will seek assurances about the conditions and treatment that the prisoner will receive in Libya and if satisfactory assurances cannot be reached, the Government will not proceed with the transfer.

The UK’s Joint Committee on Human Rights regretted “that we have been unable to publish a substantive report on the treaty before Easter and, therefore, before ratification” and noted that “the Secretary of State cited exceptional reasons why ratification of the treaty could not be delayed until we had been able fully to scrutinise the treaty. In our view, when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee’s inquiry has concluded.”

To be continued?

UN Staff Seeks Answers in 2007 Algiers Bombing

On Dec. 11, 2007, more than 17 staffers were killed and dozens more wounded as a result of the deadly attack at the U.N. offices in the capital, Algiers. The al-Qaeda Organisation in the Islamic Maghreb later claimed responsibility for the suicide car bombing that caused the second highest staff casualties in the history of the United Nations.The attack led to the formation of an independent panel, which after completing its investigation, urged the U.N. to improve its security apparatus.

Led by Algeria’s former foreign minister Lakhdar Brahimi, the panel said the U.N. must take action to “review the responsibilities of the key individuals and offices concerned.”

In response to the Brahimi report, Ban appointed a follow-up group on the question of accountability, headed by Ralph Zacklin, a former assistant secretary-general for legal affairs. About six months ago, Zacklin reported back to Ban with an 88-page report on what led to compromising the security and safety of the U.N. staff in Algeria.

Stephen Kisambira, president of the UN staff union complained that Ban has not only failed to take any steps to tighten security, but has withheld the Zacklin report’s findings from staff.

“The U.N. is once again failing to address the accountability and security issues in a straightforward and transparent manner,” he said. “All staff members owe it to our dead colleagues that such security failures do not happen again.”

Kisambira said he and other union officials have tried several times to ask the top U.N. leadership why the report was not made public, but so far they have had no adequate response.

Asked why the U.N. is not releasing its report on Algeria in full detail, a spokesperson for Ban told IPS: “It’s due to security reasons.” He declined, however, to elaborate what those security reasons are.

Italy: Constitutional Court recognizes wide discretion by the Government on state secrets

On 3 April, the Constitutional Court published its opinion on the use of the state secrecy doctrine by the Government in the rendition case of Abu Omar.

According to the pleas filed by State lawyer on behalf of the Prime ministers state secrecy would have been violated by Milan prosecutor’s office during three stages of the investigation on the Abu Omar case:

The high court rejected the government’s attempt to quash evidence obtained through wiretaps and interrogations of Italian intelligence officials, but threw out certain documents and testimony from an Italian police officer who said he had participated in the abduction.

The documents in question were seized in a SISMI office in Rome on July 5, 2006, because the SISMi members who where present during the search didn’t state the existence of any state secret. However,on October 30, 2006, SISMI communicated to the Prosecutors that some parts of the seized documents (which, according to the Prosecutor, are not important as evidence) were covered by state secrecy; the Prosecutors were sent then redacted copies of the same documents .

The Constitutional Court decided in this ruling that it was impossible to use as evidence the original, unredacted, documents. According to the prosecution this part of the ruling doesn’t change that much. Months ago the judge, on the Prosecutor’s request, had already replaced the original documents with the redacted SISMI copies.

The Constitutional Court also ruled that some parts of the declarations by Luciano Pironi (an Italian senior Carabinieri officer, who admitted to be one of the executors of the kidnapping and who was already definitively sentenced) were secret. The parts where Pironi confessed to the Prosecutors that his friend Robert Seldon ‘Bob’ Lady, who was then the Central Intelligence Agency’s station chief in Milan, confided him that the Abu Omar kidnapping  was a joint project of the CIA and SISMi and the parts where he describes his trip to Langley, to receive the gratitude by some important senior officers of the Agency cannot be used as evidence anymore in the trial.

Last but not least, the Constitutional Court settled that the prosecutors, during the trial, are not able to interrogate the witnesses on the relationship between CIA and SISMi in the fight against terrorism even with reference to the kidnapping.

Therefore the prosecution can not call 5 witnesses to the trial anymore.

• Admiral Battelli (former SISMi Chief)
• Jeff Castelli (CIA Chied in Italy)
• SISMi senior officers Murgolo, Megondi, Pillinini and Iodice.

Some short parts of the taped conversations between two defendants (MANCINI and the dead PIGNERO) who spoke openly about the request by CIA to obtain the SISMi’s help to kidnap Abu Omar also can’t be used anymore.

The prosecution is confident that there’s still enough evidence to convict the defendants.

According to prosecutor Spatoro:

In fact, except POLLARI, the former SISMi Chief, the other SISMi senior officers who are defendants made many admissions on their own behaviours. The right to self-defence, according to article 51 italian criminal code and according to two important past virdicts by Italian Supreme Court,  cannot be subjected to any restriction for the State secret.

And, if the defendants – when they will be interrogated before the Judge – will refuse to answer to the questions of the Prosecutors or to confirm the previous declarations, the Prosecutors will be able to use as evidence the previous their statements (article 513 criminal procedural code).

The lawyers representing SISMi and CIA senior officers or agents accused of kidnapping Abu Omar didn’t agree and asked the judge “to toss out the trial” (Reuters) : according to their opinions and requests, after the Constitutional Court ruling, all the evidence cannot be used and the State secret covers also the right to self-defence . So – the lawyers said – for the defendants it will be impossible to defend themselves. They asked the Judge to acquit immediately all the Italian and American defendants.

From Reuters (Phil Stewart):

“All of the attorneys for the American suspects joined the request for an acquittal, or at least the annulment of the indictments,” said Arianna Barbazza, a court-appointed attorney for suspects including the former CIA station chief in Milan.”

Commenting on defense requests to dismiss the case, Spataro said

“We’re in a Kafkaesque situation. The world changes. In the United States, secrets are revealed, but in Italy the secrets multiply”

The prosecutors – namely myself and my collegue Pomarici – urged Magi to allow the trial to continue, arguing there was sufficient evidence for convictions, even excluding materials now deemed classified by the Constitutional Court.

Judge Oscar Magi adjourned the proceedings until May 20 to consider the requests, which could abruptly end the most high-profile case in Europe into the rendition of Abu Omar.

China pledges stronger international cooperation against terrorism

Xinhua– China pledged to work more closely with the international community to fight terrorism.

“Combating the Eastern Turkistan Islamic Party (ETIP) is an important part of international counter-terrorism efforts, which serve the interests of China, the United States and other countries,” Foreign Ministry spokeswoman Jiang Yu told a regular press conference.

Jiang’s comments came after the U.S. Treasury Department on Monday designated Abdul Haq, the ETIP’s overall leader and commander, as a terrorist who supports al-Qaeda and declared it would freeze his assets and prohibit transactions with him.

The U.S. move followed a decision by the UN Security Council’s 1267 Committee to place Haq on its list of people associated with Osama bin Laden, al-Qaeda or the Taliban and subject to sanctions by UN member states.

“Haq was ETIP’s major leader who has involved in recruiting terrorists and masterminding terrorist activities. ETIP is a terrorist organization designated by the Chinese government and the United Nations Security Council,” Jiang said.

Jiang said that for a long time, ETIP and other “Eastern Turkistan” terrorist forces had carried out terrorist activities, wreaking havoc on civilians and property.

Jiang added that those activities also posed a threat to security and stability of China, and to the security and stability of relevant countries and the region.

“China takes a very clear stance on fighting terrorism and actively participates in the world counter-terrorism process,” Jiang said.

She said China would like to follow the principle of ‘equal cooperation and mutual benefit’ and work more closely with other countries to combat terrorism and safeguard regional and world peace and stability.

HRW urges Syria to reveal fate of 17 Held Incommunicado

According to HRW, the security services detained 13 men during an August crackdown on individuals from the northeastern district of Deir al-Zawr suspected of having ties to Islamists. Another group, detained in September, was of Syrian Kurds from the towns of Qamishli and `Ifrin suspected of belonging to an armed group called the Movement to Liberate Kurdistan (Haraket Tahrir Kurdistan). The body of one of those detained in Deir al-Zawr, Muhammad Amin al-Shawa, 43, was returned to his family on January 10, 2009, but they were allowed to see only his face before he was buried. Three Syrian human rights activists told Human Rights Watch that they believe that al-Shawa died under torture.

“Syrian authorities should order an investigation into the death of Muhammad al-Shawa and hold those responsible accountable,” said Sarah Leah Whitson, director of the Middle East and North Africa division at Human Rights Watch. “The authorities also should reveal the fate of the other detainees and immediately free them or charge them.”

A relative of one of the detainees from Deir al-Zawr said that Syrian security services freed three of the men but kept the other 10 in detention. The authorities have not disclosed where the men are being held, why they were arrested or whether they will be charged and put on trial.

Financing terrorism: Pakistan acceding to UN Convention?

(Business Recorder) Pakistan has reportedly agreed to accede to a United Nations Convention that prohibits the countries not to finance those groups or charitable organisations, which are engaged in illicit activities, well-informed sources in Ministry of Foreign Affairs told Business Recorder on Friday.

The International Convention for Suppression of the Financing of Terrorism, adopted by the UN General Assembly in 1997, requires parties to take steps to prevent and counter the financing of terrorism. The sources said: “The Convention further provides for the identification, freezing and seizure of funds allocated for terrorist activities as well as for sharing of the forfeited funds with other states on case to case basis.”

They said that Pakistan was often a target of criticism for its non-accession to the Convention as this was considered to be a major international legal instrument to check and punish terrorists, financed by individuals and organisations.

The sources further said: “All international partners, including the Security Council’s Counter Terrorism Committee (CTC), Financial Action Task Force (FATF), and the Asia Pacific Group (APG), have been urging Pakistan to accede to this Convention. Additionally, the countries such as the United States, United Kingdom and other European Union (EU) states have called for Pakistan’s accession to this Convention.”

According to sources, the Convention requires parties to take steps to prevent and counteract the financing of terrorism whether direct or indirect through groups, claiming to have charitable, social, or cultural goals, which are engaged in illicit activities. It also commits states to hold those, who finance terrorism, criminally or administratively liable for such acts.

Giving details, the sources said, an inter-ministerial committee, comprising the Ministries of Foreign Affairs, Interior, Law, Justice, Human Rights and Finance, was set up to consider Pakistan’s preparedness to accede to this Convention, which gave its concurrence that Pakistan might accede to the Convention while making the following reservations:

ARTICLE 11: Pakistani government declares that pursuant to Article 11 paragraph 2, of the Convention, it does not take this Convention as the legal basis for co-operation on extradition with other states parties.

ARTICLE 14: Extradition to other countries will be subject to the domestic laws of Pakistan.

ARTICLE 24: Pakistan does not consider itself bound by Article 24, paragraph 1 of the International Convention for the Suppression of the Financing of Terrorism. Pakistani government hereby declares that, for a dispute to be referred to the International Court of Justice, the agreement of all parties shall in every case be required.

Appeals Court Rejects ‘State Secrets’ Claim in Jeppesen rendition case

The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693),narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect “state secrets.”  It did so by proclaiming an important role for judicial power “in the context of secret Executive conduct.”

Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.

Scotus:
The Fourth Circuit said a lawsuit by one claiming to have been a “rendition” victim can’t go forward if secrets form “the very subject matter” of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.

The “state secrets privilege,” the Ninth Circuit ruled, applies only to evidence — one item at a time.  If an item of evidence is a secret, it will be kept out of the case.  But if the information about government action is not secret, it can be offered and tested in court, it said. “The state secrets doctrine,” it said, “applies to evidence, not information.”

Thus, it went on, even if the government claims that information about the “rendition” program is classified, that is no bar to a court exploring specific evidence that is not itself a secret.  “The question is which evidence is secret and may not be disclosed in the course of a public trial,” the Circuit Court said.

The five foreign nationals who sued in the Mohamed case, the Ninth Circuit said, should be allowed a chance to offer proof that the private air service firm provided support for the “rendition” flight ruling is based upts “with actual or imputed knowledge that the passengers would be tortured at their destinations.”

If the trial judge finds that specific items of evidence are “state secrets,” those would have to be barred from the trial.  But the trial itself need not be shut down completely just because the “rendition” program was a secret operation, the Court concluded.

If followed by other courts, the judgment can have important ramification for the state secrecy doctrine: involking the sate state secrets privilege to effectively block litigation on entire topical areas such as extraordinary rendition and warrantless surveillance would become impossible.

ACLU:

“Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ‘secrets’ in a court of law.”

More at the WP and EFF.

British Court Clears 3 Men on Terrorism Charges

A British court on Tuesday acquitted three men on charges of helping to plan London’s deadliest terrorist attack in July 2005, when four suicide bombers killed 52 people during the morning rush hour in attacks on subway trains and a double-decker bus.Prosecutors had accused the men — Mohammed Shakil, 32, Sadeer Saleem, 28, and Waheed Ali, 25 — of aiding the bombers by scouting locations for the attacks. The charges were brought in a retrial, after a jury failed to reach a verdict last year on the same accusations. The prosecution of the three men, who denied the charges, was the only one to emerge directly from the July 7 bombings.

Prosecutor Neil Flewitt said the case centered on circumstantial evidence, which he argued created a compelling picture of guilt, the BBC reported. The three men acquitted yesterday became “persons of interest” when officers discovered DNA and fingerprints linking them to the two bomb factories in Leeds.Detectives first realised they had been to London with bombers Hasib Hussain and Germaine Lindsay while scrutinising the details of 4,700 phone numbers and 90,000 calls. Cell site analysis, pinpointing the location of a mobile phone when a call is made, revealed that all five men had been in the capital on 16-17 December.

But the three men insisted that they opposed suicide bombings. The jury’s decision on Tuesday meant that no one had been convicted in the July 7 attacks, leaving survivors and relatives of the dead frustrated and calls for an independent inquiry into the bombings have resurfaced.A report by the ISC, which the Guardian has been told describes in detail how MI5 and West Yorkshire police failed to intercept the attackers, was withheld in case it prejudiced the trial but will be released next month. A father of one of the victims told The Guardian:

“We need an independent inquiry to get to the root cause and put in place systems to protect people in the future. The failure to acknowledge there was a systematic failure sends out a clear message to terrorists around the world saying you can come and bomb us and we will do the least possible to try to prevent it.

“We are not looking for people to blame, but we also know that we have not been told the whole truth. If mistakes have been made, they should be put right, not covered up. This is not a witch hunt, it is simply about saving lives.”

Senior security officials conceded last night that it is likely no one will be brought to justice for the 7 July bombs that killed 52 people in London in 2005, despite their belief that more than 20 people were involved in the attacks.

France and Spain set up joint body to fight terrorism

(AFP) – France and Spain signed a deal Tuesday to set up a joint security committee to fight terrorism, drug trafficking and illegal immigration, the two countries announced following a bilateral summit.The heads of the security services of both countries will meet every six months to plan joint actions in the fight against terrorism and organised crime, a joint statement said.

The committee will seek to “prevent the Islamist threat,” in particular through “an alert procedure” on the use of the Internet by terrorists and on the “development of the jihadist threat in the regions at risk.”

It was also aimed at combating drug trafficking, money laundering and illegal immigration networks.

A Spanish government source said the body, led by police officials from the two countries, is an expansion of the five-year-old cooperation on security between France and Spain, which has led to the arrests of numerous members of the armed Basque separatist group ETA.

Garzon opens new Guantanamo probe

Spain’s top investigative magistrate opened an investigation into ”possible material authors” of torture, accomplices and those who gave torture orders, although he does not name anyone specifically.In a 10-page writ, he said documents on Bush-era treatment of prisoners, recently declassified by the Obama administration, “reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of person denied freedom without any charge whatsoever and without the rights enjoyed by any detainee.”

He said he is also acting on the basis of accounts by four former Guantánamo inmates who have alleged in Spanish courts that they were tortured at that U.S. prison in eastern Cuba.

All four were once accused of belonging to a Spanish al Qaeda cell but eventually cleared of the accusations. One is a Spanish citizen, another is a Moroccan citizen who has lived in Spain for more than a decade and the other two are residents of Britain.