Extradition: a tooth in the mouth of international law

Psychological fallout from US supermax detention comes under gaze of the ECHR ... Long arm of the European Convention stretches to the isolation ward of US justice ... Stephen Keim and Katherine McGree review the Babar Ahmad case

On July 6 the European Court of Human Rights extended its ruling, until further notice, that the United Kingdom government should not extradite four men suspected of terrorism to the United States of America - Babar Ahmad and Others v the United Kingdom. 

The ECHR considered that the possible detention of three of the men at a "supermax" prison after trial, and the length of the four men's possible sentences, may violate Article 3 (prohibition on torture and inhuman or degrading treatment) of the European Convention on Human Rights.

Tempting as it is to celebrate "rule of law, one: war on terror, none", the decision is only one round in an ongoing battle.

No knock out blow has been struck for the four men whose human rights are at issue.

The decision deals with the admissibility of their complaints against the possible violation of their human rights in the event that they were to be extradited to the United States.

The four men have been indicted on various terrorism charges in the United States.

Babar Ahmad and Syed Ahsan, both British nationals, are alleged to have provided, or conspired to provide, material support to terrorists by contributing to websites in the UK, well before 9/11. The servers for the websites were based in Connecticut.

Ahmad and Ahsan are also alleged to have been in possession of classified US Navy plans relating to a US naval battle group operating in the Persian Gulf and to have discussed the battle group's vulnerability to terrorist attack.

Mustafa Kamal Mustafa, known more commonly as Abu Hamza, is sought to be charged with a series of offences related to the taking of 16 hostages in Yemen in December 1998, providing (or conspiring to provide) material and financial assistance to the Taliban in Afghanistan in 2001, and conspiring to establish a jihad training camp in Bly, Oregon, between June 2000 and December 2001.

Hamza claims he was deprived of his Egyptian nationality in the 1980s. The UK government maintains that he has Egyptian nationality and has deprived him of British citizenship.

Syed Tahla Ahsan, a British national, is indicted as Hamza's alleged co-conspirator in respect of the jihad training camp charges.

The four men are currently detained in the UK pending extradition to the USA. They unsuccessfully contested their extradition in earlier proceedings in the English courts.

Each applicant asserts that if they are extradited to the United States there is a real risk that their human rights, recognised under the European Convention, will be violated.

The ECHR has rejected most of the grounds raised by the applicants.

The ECHR will, however, adjudicate whether the real risk of Ahmad, Aswat and Ahsan serving possible post-trial detention in ADX Florence, a United States "supermax" prison, violates the prohibition on torture and inhuman or degrading treatment.

Hamza's complaint in this regard was rejected, on the basis that his poor health - his type-two diabetes, high blood pressure, loss of sight in his right eye and poor vision in his left, and the amputation of both his forearms - would make it likely that he would only spend a short period of time at ADX Florence.

The three men can expect to be held under Special Administrative Measures in cells seven metres square in size, inclusive of shower and bathroom facilities, designed by architects to limit access to natural light, and with a moulded concrete bunk.

Food, mail and laundry are passed through a slot in the cell door and external communication, even with a doctor, is via closed-circuit television.

Each will receive five hours exercise per week but, according to some of the evidence, only after being strip-searched.

Kupers: studies supermax psychological damageHuman Rights Watch describes the conditions of detention as a "long-term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation".

Dr Terry Kupers, an experienced analyst of the effects of supermax confinement, considers that there is almost a total lack of meaningful human contact under the regime.

All studies into the effects of supermax detention have found that psychological symptoms, ranging from panic to psychosis and emotional breakdown, present after 60 days detention.

Alarmingly, approximately half of the suicides in US prisons involve the six to eight percent of prisoners held in these conditions.

The three men have pre-existing mental health problems likely to worsen the effects of the supermax conditions.

Ahmad has been diagnosed with post-traumatic stress disorder, Aswat with schizophrenia and Ahsan with Asperger syndrome and depressive disorder.

The ECHR has foreshowed that, if it finds that the conditions of detention of ADX Florence violate the European Convention, it will not do so on the basis of the physical conditions of detention per se, but on the basis of the prolonged periods of isolation that prisoners in such conditions experience.

Since the men are facing possible life sentences involving decades of imprisonment before any form of release eligibility, prolonged detention in these conditions is very much on the cards.

The ECHR has declared that the length of the men's possible sentences, irrespective of the conditions in which they are to be served, raise serious questions of such complexity that a proper examination of the prevailing circumstances should be undertaken before such sentences are imposed.

The court is concerned by the argument that there is very little possibility of anything other than a very long sentence being imposed and served by these applicants.

The ECHR's decision is a significant one.

It makes visible the long reach of the European Convention and its ability to impact upon not only the British but also the US justice systems.

Peirce: human rights lawyerIt is possible that the ECHR will deliver a judgment to which even the United States must pay heed if it wishes extraditions to continue.

Gareth Peirce, who successfully acted for the Guilford Four and who represented Ahmad, Aswat and Ahsan before the ECHR, has argued precisely this point in her personal capacity: America's Non-Compliance, (London Review of Books).

Peirce writes that the concept of exposing its own conformity with international legal principles to outside judgment is entirely alien to the United States, which routinely opts out of treaty provisions that allow inspection and sanction of internal compliance.

For example, the United States has never ratified the optional protocol to the UN Convention against Torture and so has barred the possibility of UN Special Rapporteurs on torture carrying out unannounced inspections of facilities and publicly reporting their findings.

The US has also avoided any recourse by individuals in the United States to the Inter-American Court on Human Rights.

However, no country is an island and international law has been acquiring teeth over the last two decades.

The reach of the United States' justice system is dependent on foreign national governments granting extradition. To the extent of that dependence, the values and performance of the US justice system are exposed to judgment against internationally developed norms.

The future rounds of the extradition process will be watched with interest.

More is at stake than three alleged terrorists and whether they are forced to spend the next few decades in conditions of extreme social isolation and sensory deprivation.

Stephen Keim
Katherine McGree
Australian Lawyers for Human Rights