Rights without Remedies

Of all the rights that we might expect our government to recognise, freedom from torture is top of the list.

“There can be no right without a remedy.” The 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, just so much hot air.

The maxim was first recorded in the laws of England some 700 years ago by King Edward I. It was written in Latin back then -- Ubi jus, ibi remedium – and probably traces its lineage back to Roman times. For many centuries, there was no ambiguity as to what it meant.

However, those who would disparage human rights are a devious lot, and both lawyers and politicians wriggle exceptions into the most obvious of rules. There is now a ‘modern’ version of the same statement, where it is turned on its head: if you don’t have a remedy, then you really don’t have a right at all.

Of all the rights that we might expect our government to recognise, freedom from torture is top of the list. The word “Torture” used to come up only in the context of the Spanish Inquisition, or the Gestapo. The UN Convention Against Torture (CAT) was concluded in 1984, and rapidly 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 became cloudy; if you were a Muslim with a beard, the Bush Administration was not sure you had a right not to be tortured. Indeed, even the British government took advantage of our twenty-first 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 he and six others used a car bomb in the 2000 killing of Christopher Rodway, another expatriate. Objective observers recognized that Rodway was the victim of some 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 capitulated and 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 Sandy make it back to Britain, in a triangular deal that saw the US release five Saudis from Guantánamo Bay.

Reasonably enough, Sandy sued for some kind of recompense for his thousand days and nights of suffering in Saudi hands, and 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, however grounded it may be in unwise precedents. While a small amount of torture may be privatized, it is most pernicious when practiced by the state. Saying that the state can never be sued outside its own domain reduces the CAT to hollow words. Nobody will ever be sued for torture if the victims cannot do it when they finally reach the sanctuary of their homes.

Sandy can hardly sue in Saudi Arabia. If he went there and made a claim against some of the King’s cousins, he would receive some more falaca, but he would not get any funds. Neither can the five Saudis who suffered in Guantánamo Bay sue in the United States, where the Bush Administration has argued forcefully and 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 decided to stick 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 currently wending its way through Parliament. The bill would establish the UK as a venue for victims who have been denied any sense of justice elsewhere, abolishing the confabulation of state immunity in the case of torture, and providing a remedy in damages.

So will the government stand by this bill? Given their 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 as the chance as Sandy Mitchell did when he tried to hold out in the torture chamber.

This article also appeared in the New Statesman.