Torturous arguments

The draft Torture Damages Bill is a fundamental test of the British government's commitment to human

"There can be no right without a remedy." This legal aphorism was once thought to mean that if the law recognises your right, the law must provide you with a remedy when your right is violated. Otherwise pretending you have the right would be meaningless. The maxim was first recorded in the laws of England 700 years ago.

However, those who would disparage human rights are a devious lot. There is now a "modern" version of the statement, which turns it on its head: If you don't have a remedy, then you don't have a right at all.

The UN Convention Against Torture (CAT) was concluded in 1984, and signed by 151 countries across the globe. These governments ranged from the sanctimonious to the hypocritical, because every public official felt the need to condemn torture. Then, however, another word came along, with a capital T: Terrorism.

What was once clear now became cloudy; if you were a Muslim with a beard, the Bush administration was no longer sure you had a right not to be tortured. Indeed, even the British government took advantage of 21st-century semantics to argue in court that the victim of torture should be denied any remedy. Without a remedy, the victim had no right.

Sandy Mitchell can testify to this. He is a British citizen, and faced some bizarre allegations in Riyadh. The Saudi Arabian authorities contended that in 2000 he and six others used a car bomb to kill Christopher Rodway, another expatriate. Objective observers recognised that Rodway was the victim of home-grown Saudi criminals, but the kingdom preferred to blame foreigners.

I met Sandy in a pub one day and he described his arrest and torture. True to form, the Saudis used their notorious falaca technique, involving an excruciating beating on the soles of the feet. Sandy inevitably confessed, and then came the ten-minute trial. He was not told for a year that he had been sentenced to death. Only after nearly three years did he make it back to Britain, in a triangular deal under which the US released five Saudis from Guantanamo Bay.

"Sovereign immunity"

Reasonably enough, Sandy sued for some kind of recompense for his suffering at Saudi hands and for the lifetime of trauma that lies ahead of him. At the urging of the British government, the law lords refused to allow his case against the Saudi torturers to proceed, holding that all states - even those that routinely torture - are beyond the reach of the British rule of law. They have "sovereign immunity", the judges said, and therefore "it is unnecessary to consider any question of remedies" - because there are none.

On one level, the ruling is ludicrous. Saying that a state can never be sued outside its own domain reduces the CAT to hollow words. Sandy can hardly sue in Saudi Arabia. If he did, he would receive more falaca, but he would not get any funds. Nor can the five Saudis who suffered in Guantanamo Bay sue in the United States, where the Bush administration has argued successfully for its own rules barring foreigners from seeking compensation for torture.

The law lords' tortuous reasoning sends a clear message to torturous regimes - do what you like, because you'll get away with it. The Americans have joined the abusers, and the British ostrich has stuck its head in the sand.

The one flicker of light in this thicket of judicial sophistry is the draft Torture Damages Bill, a private member's bill that is wending its way through parliament. The proposed law would establish the UK as a venue for victims who have been denied any sense of justice elsewhere, abolishing state immunity in the case of torture, and providing a remedy in damages.

So, will the government stand by the bill? Given its retrograde arguments to the law lords, one doubts it. Yet this is a fundamental test of the government's commitment to human rights, as a private member's bill without ministers' support has about the same chance as Sandy Mitchell in that torture chamber.

Clive Stafford Smith is legal director of the charity Reprieve and has spent more than 20 years representing prisoners on Death Row in the United States. More recently he has represented many of the prisoners in Guantanamo Bay.

This article first appeared in the 14 April 2008 issue of the New Statesman, Belief is back