Deportation denied
January 17, 2012
The European Court of Human Rights, based in Strasbourg, said Islamist cleric Omar Othman, aka Abu Qatada, would not receive a fair trial if he were returned to his native Jordan, where he faces charges of bomb attacks on two hotels and providing financial and other support for another series of bombings.
Othman, 51, is still in prison in Britain, and is thought to have been a key operative for al Qaeda with close ties to the late Osama bin Laden.
But due to Jordan's record on human rights, the court said on Tuesday that sending Othman back to Jordan would be a "flagrant denial" of justice. It was a victory for Othman, who was appealing a 2009 decision in which Britain's highest court ruled he could be deported.
The court cited Article Six of the European Convention of Human Rights in the ruling, which concerns the use of evidence obtained by torture and its inadmissibility in a legal trial. The court said that there was a "real risk" that Jordan would use such evidence.
Othman, who is a Palestinian-Jordanian, arrived in the UK in 1993 where he applied for refugee status saying he feared being tortured if he returned to Jordan, where he said he had been tortured by security forces in the past.
Convicted in absentia
In 1999, a Jordanian court convicted Othman in absentia for alleged complicity in bomb plots, sentencing him to life in prison. But after being alternately in hiding, detained and then released in the UK, a British ruling in 2009 said that Othman could be returned to Jordan.
The Strasbourg court looked at the legal basis of a bilateral agreement between Britain and Jordan, which states that the receiving country promises not to torture those returned, and deemed it sound overall.
Human rights standards prevent the return of a person to a country where they are likely to face severe mistreatment and torture. The Strasbourg court addressed the question of whether or not there is such a risk in Othman's case.
Benjamin Ward, a director at Human Rights Watch, said his group would have been "very surprised" if the court had found Othman could have safely returned, especially also since the UK had already found there was a risk he might be tortured there.
Legal questions
But the central legal question revolves around whether or not governments can use diplomatic assurances in a blanket manner.
The UK has based its legal argument in Strasbourg on a memorandum of agreement with Jordan, where the Jordanian government promised humane treatment and a fair trial for those returned from Britain.
Julia Hall, a terrorism expert with Amnesty International, said that her group has serious concerns about whether such agreements uphold an absolute ban on torture, enshrined in binding human rights treaties.
"If governments can do an end-run around legal requirements, this threatens the whole treaty regime," Hall told Deutsche Welle.
Amnesty International and Human Rights Watch, which intervened against the UK government in the Othman case, argued that such diplomatic assurances do not amount to a safeguard against torture.
"You can't just get paper promise," Hall said.
Defending terrorists?
Yet, defending a suspected terrorist has on some level put the groups in a delicate position. But according to rights advocate Ward, preventing torture is the priority.
"If we allow that torture is an acceptable means to an end, we're helping terrorist groups achieve their objectives," he said.
In most instances, courts have enjoined a country from sending suspects back to their home countries where they might face mistreatment, Hall said. Now it is up to the UK to decide whether to try Othman, release him, or send him to another country where he would be treated humanely and receive a fair trial.
The British government can make a final attempt to appeal the judgement before it becomes binding in three months.
In 2009, the European Court of Human Rights ordered the UK to pay Othman damages of 2,800 euros ($3,580) for being improperly held for two-and-a-half years in the wake of 9/11.
Author: Sonya Angelica Diehn, Kyle James
Editor: Sarah Steffen