Legal Opinion: Why governments can't carry on turning a blind eye to torture

European judges have delivered a landmark ruling in the so-called 'war on terror', says Robert Verkaik, Law Editor, and it is one that we should all have reason to celebrate

Buried deep beneath the welter of publicity covering Prince Harry's secret deployment to Afghanistan was the release of another piece of news concerning the Allies' so-called "war on terror". A judgment published last week by the European Court of Human Rights (ECHR) delivered a devastating blow to Britain's attempt to water down the prohibition on the use of torture by sending terror suspects to states which routinely abuse prisoners. The judges described as "misconceived" the British argument that there could be a justification for balancing the risk of torture against the threat posed to national security.

In an Italian case before the Strasbourg judges in which the British Government had intervened, Foreign Office lawyers had hoped to clear a lawful path for the Government's policy of deporting terror suspects to Algeria and other states which have a history of using torture. The Government has relied on assurances from these countries that they will not use torture against suspects sent there by Britain.

But last week the ECHR said: "the concepts of risk and dangerousness do not lend themselves to balancing . . . [t]he prospect that he may pose a serious threat to the community . . . does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return."

Amnesty International described the ruling as a landmark case and welcomed the re-affirmation of the absolute prohibition of torture and other inhuman or degrading treatment or punishment. Ian Seiderman, Amnesty International's senior legal adviser, said: "This judgment should serve as a reminder to all states: not only are they not allowed to commit torture themselves, but they are forbidden from sending anyone to countries where they would be at risk of torture or other ill-treatment."

The human rights campaign group Liberty also welcomed the decision. Liberty's Director, Shami Chakrabarti, said: "If the Grand Chamber had watered down the absolute prohibition against torture there would have been no putting this genie back in the bottle. It would have been a green light for extraordinary rendition and even the direct use of torture as an interrogation technique."

In the case before the court, the Italian authorities sought to deport Nassim Saadi, a Tunisian national, to Tunisia under the "Pisanu Law" which was originally adopted in 2005 as "an urgent measure to combat terrorism". The Italian authorities argued that he posed a security risk to Italy. But the court found "substantial grounds had been shown for believing that there is a real risk" that Saadi would be subjected to torture or ill-treatment if he were deported.

The Government says it is considering the ruling but did not think that it would lead to a change in policy over the deportation of terror suspects who could not stand trial in this country. Since the terror attacks of 9/11, the judiciary has largely managed to hold the line against repeated government attempts to restrict human rights in its pursuit of the "war on terror".

So in a week when Britain's media lifted the news blackout on the secret deployment of another brave soldier to Afghanistan, we should also celebrate a ruling that upholds the very democratic values which our government says we have been fighting to protect.

r.verkaik@independent.co.uk