“1. The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. 3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 8.(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. [Article 1 Protocol 1] Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
“(1) A refugee shall have free access to the courts of law in the territory of all Contracting States. 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi [sc. security for costs]. 3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.”
“Although we understand Mr Deghayes has long term or indefinite leave to remain in the United Kingdom he is a Libyan National and not a British National. We are therefore unable to act on his behalf. His detention and welfare are matters for the United States and Libya. I can only advise that you contact the Embassies of the United States and Libya in London and seek information from them…”
“Your letter does not make clear Bashir Al-Rawi’s precise status, although I understand that he is an Iraqi national with indefinite leave to remain in this country. If he was travelling on Iraqi documentation, then clearly it is the role of the Iraqi authorities to provide assistance either directly, or through a country which they have indicated they wish to represent their interest.”
“31. Bearing in mind the fact that the third claimant’s refugee status was based upon a well founded fear of persecution in Libya, as a result, at least in part, of the evidence of State complicity in his father’s death, the reply to the solicitors acting on behalf of his family was unfortunate. And bearing in mind the date of the answer to the letter written on behalf of the first claimant’s family, which was the eve of the allied invasion of Iraq, the suggestion in the reply to them was unrealistic. There is no doubt that it caused distress to both families.”
“20… On the2nd December 2002 [sc. thirteen months after the Guantanamo Bay facility was inaugurated] interrogation techniques contained in the Army Field Manual were approved by the Secretary of Defence which included: (i) The use of stress positions (like standing) for a maximum of four hours; (ii) Detention and isolation up to 30 days; (iii) The detainee may have a hood placed over his head during transportation and questioning; (iv) Deprivation of light and auditory and literary stimuli; (v) Removal of all comfort items; (vi) Forced grooming, shaving the facial hair etc. (vii) Removal of clothing. (viii) Interrogation for up to 20 hours. (ix) Using detainees individual phobias (such as fear of dogs) to induce stress. 21. These guidelines were later rescinded and replaced by a memorandum which in its introduction states that: ‘US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent to military necessity, in a manner consistent with the principles of the Geneva Convention.’ 22. It then authorised inter alia the following techniques; that authorisation remains in force: (i) Incentive/removal of incentive i.e. comfort items, (ii) Change of scenery down (sic) might include exposure to extreme temperatures and deprivation and auditory stimuli; (iii) Environmental manipulation: altering the environment to create moderate discomfort (e.g. adjusting temperature or producing unpleasant smells); (iv) Sleep adjustment; adjusting the sleep times of the detainee (e.g. reversing sleep cycles from night to day). This technique is not sleep deprivation. (v) Isolation: clearly isolating the detainee from any other detainee while still complying with basic standards of treatment.”
“56. ... [T]here remain serious difficulties in independently assessing what is actually going on at Guantanamo, in part because of the refusal of the US authorities to allow full, unrestricted and unconditional access to the detention facilities by external observers.”
“The United Kingdom Government also attaches considerable weight to public and private assurances from the US Government that no torture is being practised at Guantanamo. The United States is a close and trusted ally, with a strong tradition of upholding human rights.”
“19. Whilst British nationals remained at Guantanamo, the UK Government’s main diplomatic efforts were focused upon them. However, the UK Government did in the same period express reservations to the US Government about Guantanamo more generally, including the legal basis on which the detainees were held there, the conditions of their detention and the process by which they might be tried or released. These concerns were expressed, for example, at Foreign Secretary/US Secretary of State level in December 2004. Following the return of the last of the British nationals, UK Government policy has concentrated on the position of all the remaining detainees and the future of Guantanamo as a whole. 20. Further, in the conduct of UK/US diplomatic relations, a group of issues has come to be discussed together, and points taken in relation to one of them have implications for how relations in respect of the others are conducted. The issues associated in this way may be grouped together under the general heading of US detainee policy and practice, and include in particular the position of all detainees at Guantanamo and its future, and the treatment of terrorist suspects more generally. The UK Government is making considerable efforts to engage with the US Government on all these interconnected issues.”
“It is plain from all the material that we have that the United Kingdom government has made it abundantly plain that it wishes the Guantanamo Bay facility to close. That wish has been expressed repeatedly and by the Prime Minister.”
“5. The aim of the United Kingdom Government’s foreign policy is the pursuit of the United Kingdom's national objectives. These are wide-ranging and often inter-linked and complex. The United Kingdom Government faces difficult choices about how to pursue these objectives and what priority to give them. The UK Government must place reliance on the relationships that it builds and maintains with a range of other governments. The diplomatic credit which the UK Government has with each of these international partners is intangible, but nonetheless real. Although it will vary according to the circumstances, it will never be unlimited. Ministers and officials in the FCO must decide how best to use the credit they have with foreign States at any given time, in the face of different and sometimes conflicting demands. This involves a careful assessment of whether diplomatic efforts are likely to be successful - and at what cost - in pursuit of a particular objective, or whether they are likely to be unhelpful or counterproductive. 6. A further dimension to the complexity of international relations should be noted. Relations between States are not conducted in hermetically sealed boxes, topic by topic. Rather, they are conducted across a wide range of areas where the interests of States come into contact and, as is often the case, collide. Diplomatic pressure applied at one point may produce unwelcome reactions in other areas. Further, all States have areas which are of particular sensitivity for them (whether for internal reasons, related for example to domestic politics or the policy priorities they have adopted, or for external reasons, related for example to their standing with other States). Guantanamo Bay and what the US calls the ‘Global War on Terror’ are currently topics of particular significance and sensitivity for the US Government.”
“27. In deciding whether to make humanitarian representations in any case, the UK Government would have to take into account the extent to which it would have to expend significant political credit, and would have to risk losing a measure of credibility, with the State to whom the representations are made. This is so, irrespective of the context. It is particularly true in relation to such highly controversial and (especially from the US Government’s point of view) sensitive matters as Guantanamo and the circumstances and conditions of persons detained there. 28. Turning to this particular case, any humanitarian representations to the US Government on behalf of non-British nationals who had in the past been residents in the UK of the form proposed by the Claimants would be far from straightforward. The US Government is fully alive to the UK Government’s lack of any recognised right to intervene on their behalf in the way that the Claimants seek. In our assessment and that of the FCO, the US Government would be very likely to resist any intervention along the lines which the Claimants seek. I consider that the US Government would be likely to consider an intervention by the UK Government on these lines to be a case of unjustified special pleading by the UK for particular individuals. In our view (and that of the FCO and the UK Government), lobbying along these lines would not be effective in itself, and would make it much more difficult for the UK to engage successfully with the US across the range of issues to which we have referred in paragraph 20 above.”
“38. ... [T]he Foreign Secretary, in consultation with Cabinet colleagues, has had to make difficult choices as to how to use the FCO’s resources and diplomatic credit with the US authorities across a range of issues concerning Guantanamo Bay and related matters. He decided to focus efforts in the first instance on assisting the British nationals detained there [the reference is to the British nationals the subject of the Abbasi case, which we discuss later] and, having ultimately (and after a major effort) secured their release, has made the assessment that - in the absence of a direct locus in relation to non-nationals - the focus of efforts now should be directed to the whole issue of resolution of the Guantanamo situation. My own and the FCO’s assessment is that this is the best use of the UK’s resources and credit with the US in current circumstances: it is more likely to bear fruit than an attempt to focus on the class of non-national past residents as the Claimants demand; and, if successful, it will promote and protect the interests of all persons detained at Guantanamo (including, but not limited to, the detainee Claimants). The Foreign Secretary considers that, as things stand at present, we have already pressed the US Government on the question of the treatment of the class of non-national former resident detainees as far as we reasonably or safely can, bearing in mind our overall relations with the US across the range of issues referred to in paragraph 20 above.”
“the desirability of the UK Government continuing to use its diplomatic credit with the US in order to press for resolution of the whole situation at Guantanamo, rather than deflecting its efforts to press more extensive representations in relation to the detainee Claimants (which would be likely to be seen by the US as unjustified special pleading by the UK and would be likely to be both ineffective and counterproductive): see paragraph 28 above.”
“69. The Foreign Secretary has given careful consideration to the present claim by all the Claimants and the question whether the UK Government should make formal requests for the return to the UK of the detainee Claimants. He has concluded that such formal requests should not be made... 70. The principal reasons for this decision are those we have explained above. In particular, the Foreign Secretary’s assessment is that making formal approaches to the US Government along the lines demanded by the Claimants would be ineffective because of the absence of a consular locus and would be counterproductive in terms of the UK Government’s ability to engage constructively with the US authorities across the group of issues referred to in paragraph 20 above.”
“71(1). ... [The Foreign Secretary] has had regard to the assessment of the threat to national security which the detainee Claimants would pose if they were permitted to return to the UK. It is assessed that Mr El Banna and Mr Deghayes would pose a significant threat to national security and the public if they were permitted to return to the UK. The assessment in relation to Mr Al Rawi is that he might in some circumstances pose a threat, but the risk of this is at a lower level than for the others. The Foreign Secretary considers that this material is relevant to his assessment that a fair balance between the interests of the Claimants and the general public interest does not require him to make the formal requests to the US Government which the Claimants have demanded...”
“...The account given by Mr Al Rawi of his dealings with the Security Service is inaccurate in very many respects. However, the Foreign Secretary has investigated these matters and has concluded that there is a basis on which it would be possible to approach the US Government on Mr Al Rawi’s behalf with some reasonable prospect of success, and without causing the significant counterproductive effects more generally of the kind which are referred to in paragraphs 28 and 70 of the witness statement of David Richmond in these proceedings. I wish to make it clear that the view of the Foreign Secretary, on legal advice, is that the matters referred to do not give rise to a legal obligation on him to make any request at all. Nonetheless, in his discretion, he has decided in principle that a request should be made for Mr Al Rawi’s return to the UK. The approach which the Foreign Secretary has decided should be made to the US authorities will not be a humanitarian request, of the kind sought by the claimants in their general claims to be heard in court over the next three days. It will not be a request put forward on humanitarian grounds, for all the reasons explained in Mr Richmond’s witness statement. Nor will the request be put forward on any kind of consular or quasi-consular grounds. Rather, the Foreign Secretary considers that there are matters which would enable him to approach the US authorities on Mr Al Rawi’s behalf on the basis of shared UK/US counter-terrorism objectives, and which would offer a reasonable prospect in Mr Al Rawi’s case of affording grounds which might be acceptable to the US authorities to encourage them to allow his release.”
“We would like every government to take responsibility for their detainees, whether they are nationals or residents of their countries”
“(1) the US Administration have not changed their policy in relation to the acceptance of requests for release from Guantanamo Bay; (2) the case of Mr Kurnaz is treated by them as strictly exceptional, and not as setting any kind of precedent upon which other states might rely; and (3) any formal request for release of the Detainee Appellants would be unacceptable to the US Administration, unless supported by arrangements to meet US security concerns that were very extensive and on a wholly different scale from the arrangements in relation to the British nationals who had previously been released from Guantanamo Bay and returned to the UK...”
“...would be unacceptable to the US Administration, and indeed would provoke a negative reaction, because the US Administration would take this to indicate that the UK was not taking their security concerns in relation to Mr El Banna and Mr Deghayes seriously. The FCO and we consider that such an approach would seriously undermine the credibility of the UK Government on detainee issues in the eyes of the US Administration.”
“In the case of the possible return to the UK of detainees at Guantanamo, including [Mr El Banna and Mr Deghayes], US officials have made it clear that security arrangements similar to those which were put in place when British nationals were returned would not be acceptable... In the case of [Mr El Banna and Mr Deghayes], US officials have made it clear that active and aggressive measures would have to be taken to mitigate the security threat that the US Administration assessed the detainees posed. The British Embassy in Washington assesses that the US Administration envisages measures wholly different in scale from those provided in respect of the British nationals.”
“My assessment is that the obligations which I am advised the US would seek would be at the most stringent end of the range of potential obligations which can be imposed under non-derogating control orders, or even derogating control orders. The UK Government could not give a commitment in advance to taking these measures, as specific legal tests for the making of such orders are set out in the legislation. Further, such orders are subject to court control. The UK Government could not guarantee the outcome of any court hearing in relation to a control order. However, on the basis of the material currently available to the UK Government, I am not satisfied that it would be proportionate to impose on [Mr El Banna and Mr Deghayes] the kind of obligations which might be necessary to satisfy the US Administration.”
“None of these techniques, individually or collectively, would be able to provide the sort of guarantee sought by the US, as set out above”
“Both [Mr El Banna and Mr Deghayes] are currently assessed to pose a threat to the national security of the UK. However, it is the assessment of the Security Service that they do not pose a sufficient threat to justify the devotion of the high level of resources to covering their activities following any return to the UK which might be required to satisfy the US Administration.”
“23. Accordingly, in the light of what the UK Government assesses are likely to be the US Administration’s requirements about control and monitoring measures which would have to be taken in respect of [Mr El Banna and Mr Deghayes], I and the Home Secretary do not believe that the UK Government would be able to give any set of commitments to the US Administration that it would find satisfactory. Hence any formal request to the US Administration for [their] release... could not be supported by the required assurances as to security arrangements.”
“A declaration that the detainee claimants will be entitled to immediate return to the United Kingdom in the event of their release from detention at Guantanamo Bay and that any refusal of permission to do so by the United Kingdom Authorities by reference to the time they have been detained at Guantanamo Bay would be unlawful.”
“98. ... The claim is made because, certainly in relation to the second and third claimants, the travel documents with which they were issued when they left the United Kingdom only gave them a right to return to the United Kingdom if they did so within two years. Their detention in Guantanamo Bay has therefore taken them beyond the end of that period. The correspondence makes it plain that the second defendant has not been prepared to give an unequivocal commitment that they will be permitted to return to this country. It seems to us that that is the only proper stance he can take until such time as their release from detention becomes imminent. The decision will then be made on all the information available to him at that time. All that we can say at the moment is that a decision to refuse them entry based merely on the fact that they have been out of the country for more than two years would be difficult to justify.”
“28. First, the current re-examination by the US Administration of its policy on Guantanamo meant that if the Home Secretary were to make a substantive decision now, he would be doing so without full consideration of all the factors which might ultimately be significant for this issue. Such factors include the longer-term US policy on Guantanamo. 29. Second, he considered the impact that a substantive decision made now might have on the UK's wider ability to engage with the US on Guantanamo during a period when the US Administration is re-examining its policy in this regard. The Home Secretary noted advice from the FCO that substantive decisions to exclude the Appellants could damage wider exchanges with the US on detainee matters. Some in the US Administration might see such a decision as self-serving or hypocritical, particularly in the light of the extent to which the UK Government has sought information about the First, Second and Third Appellants despite the UK's lack of consular locus, the request which the UK Government has now made in respect of the First Appellant, and the consistent pressing of the US Administration by the UK Government to close Guantanamo. 30. Third, he was mindful that if he were to make a substantive decision at this time to exclude the Appellants, such a decision might have a potentially negative impact on the Government’s ability to engage with those minority sections of the Muslim community in the UK that are at risk of being radicalised. At a different time and in different circumstances the potential for harm in this respect might be less.”
“25. The essence of his [the applicants’ counsel’s] submissions was that Mr Abbasi was subject to a violation by the USA of one of his fundamental human rights and that, in these circumstances, the Foreign Secretary owed him a duty under English public law to take positive steps to redress the position, or at least to give a reasoned response for his request for assistance. Mr Blake [the applicants’ counsel] accepted that no legal precedent establishes such a duty, but submitted that the increased regard paid to human rights in both international and domestic law required that such a duty should be recognised. 26. For the Secretary of State, Mr Greenwood QC submitted that the authorities clearly established two principles that posed insuperable barriers to the relief claimed in these proceedings: (1) The English court will not examine the legitimacy of action taken by a foreign sovereign state; (2) The English court will not adjudicate upon actions taken by the executive in the conduct of foreign relations.”
“69. It is clear that international law has not yet recognised that a State is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign State.”
“The citizen’s legitimate expectation is that his request will be ‘considered’ and that in that consideration all relevant factors will be thrown into the balance.”
“106. We would summarise our views as to what the authorities establish as follows: (i) It is not an answer to a claim for judicial review to say that the source of the power of the [FCO] is the prerogative. It is the subject matter which is determinative. (ii) Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The Convention does not impose any such duty. Its incorporation into municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this Court. (iii) However the [FCO] has a discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same is irrational or contrary to legitimate expectation; but the court cannot enter into the forbidden areas, including decisions affecting foreign policy. (iv) It is highly likely that any decision of the [FCO], as to whether to make representations on a diplomatic level, will be intimately connected with decisions related to this country’s foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area. (v) The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case. 107. We have made clear our deep concern that, in apparent contravention of fundamental principles of law Mr Abbasi may be subject to indefinite detention in territory over which the USA has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or Tribunal. However, there are a number of reasons why we consider that the applicant’s claim to relief must be rejected. (i) It is quite clear from Mr Fry’s evidence that the [FCO] has considered Mr Abassi’s request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the USA both at Secretary of State and lower official levels. We do not consider that Mr Abassi could reasonably expect more than this. In particular, if the [FCO] was to make any statement as to its view of the legality of the detention of the British prisoners, or any statement of the nature of the discussions held with US officials, this might well undermine these discussions. (ii) On no view would it be appropriate to order the Secretary of State to make any specific representations to the USA, even in the face of what appears to be a breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time. (iii) The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the USA. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the US courts have the same respect for human rights as our own. (iv) The Inter American Commission on Human Rights has taken up the case of the detainees. It is as yet unclear what the result of the Commission’s intervention will be. It is not yet clear that any activity on behalf of the [FCO] would assist in taking the matter further while it is in the hands of that international body.”
“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) on racial grounds he treats that other less favourably than he treats or would treat other persons...”
“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1)... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
“It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.”
“(2) Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other’s nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that Act is done— ... (d) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown...” (a) on racial grounds he treats that other less favourably than he treats or would treat other persons...” ... (d) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown...”
“72. It is accepted by the first defendant that he was carrying out a function within the meaning of Section 19B(1) but asserts that the relevant circumstances of the comparators in this case, that is the nationals, were not the same, by reason of the very fact of nationality which relates to their status under international law. It is the difference in status which is the material difference. Because that difference in status is recognised in international law we cannot see how the nationals can be used as comparators for the purposes of section 3(4) in the very context where the difference in status is relevant. We reject the claim based upon the Act.”
“Although one has to compare like with like, in judging whether there has been discrimination you have to compare the treatment which would have been afforded to a man having all the characteristics as the complainant except his race.”
“The ingredients of unlawful discrimination are (i) a difference in treatment between one person and another person (real or hypothetical) from a different sex or racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on sex or racial grounds. However, because people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds: see Glasgow City Council v Zafar[1997] 1 WLR 1659 , approving King v Great Britain-China Centre[1992] ICR 516 . If the difference is on racial grounds, the reasons or motive behind it are irrelevant: see, for example, Nagarajan v London Regional Transport[2000] 1 AC 501 .”
“One asks Lord Steyn’s question [in Nagarajan v London Regional Transport[2000] 1 AC 501 , 521-522]: why did [the immigration officer at Prague airport] treat the Roma less favourably? It may be said that there are two possible answers: (1) because he is Roma; (2) because he is more likely to be advancing a false application for leave to enter as a visitor. But it seems to me inescapable that the reality is that the officer treated the Roma less favourably because Roma are (for very well understood reasons) more likely to wish to seek asylum and thus, more likely to put forward a false claim to enter as a visitor. The officer has applied a stereotype; though one which may very likely be true. That is not permissible. More pointedly, he has an entirely proper reason (or motive) for treating the Roma less favourably on racial grounds: his duty to refuse those without a claim under the Rules, manifestly including covert asylum-seekers, and his knowledge that the Roma is more likely to be a covert asylum-seeker. But that is irrelevant to the claim under s.1(1)(a) of the 1976 Act.”
“The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. As Laws LJ observed, at para 108: ‘The mistake that might arise in relation to stereotyping would be a supposition that the stereotype is only vicious if it is untrue. But that cannot be right. If it were, it would imply that direct discrimination can be justified;…’” ‘The mistake that might arise in relation to stereotyping would be a supposition that the stereotype is only vicious if it is untrue. But that cannot be right. If it were, it would imply that direct discrimination can be justified;…’”
“As for the preferential treatment given to nationals of the other member-States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.”
“... [T]he [ECHR] and the [HRA] [do not] afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.”
“[t]he fact that at the time of Abbasi there had been no public recognition by the United Kingdom Government that the indefinite detentions at Guantanamo Bay should be brought to an end, let alone that the United States authorities were actively engaged in discussions with the United Kingdom as to how to bring about repatriation of detainees held there. It is now official Government policy that those held at Guantanamo Bay should be released from their detention there and the Government has an obvious opportunity and forum in which to state to the United States that they would be content to accept the Detainee Claimants back in this country and would like this to occur.”
“The alleged expropriation of his property in Cyprus is attributed to Turkey and therefore in itself is not a matter for which the United Kingdom Government is responsible under the Convention. The applicant maintains however that the United Kingdom is obliged to take measures against Turkey to protect his property rights.”
“[T]here is no right in the Convention which requires a High Contracting Party to espouse the applicant’s complaint under international law or intervene with the Turkish authorities on his behalf. This complaint must therefore be rejected as incompatible ratione materiae with the provisions of the Convention...”
“It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)[2000] 1 AC 147 , 197-199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija [1998] ICTY 3,10 December 1998 in a passage which, despite its length, calls for citation...”
“b) The Prohibition Imposes Obligations Erga Omnes. 151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfillment of the obligation or in any case to call for the breach to be discontinued. 152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfill its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner. (c) The Prohibition Has Acquired the Status of Jus Cogens. 153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force. 154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate. 155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.”
“There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.”
“77. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity. 78. This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection… 79. For instance if the decision were to be irrational, a court could intervene. This does not mean that the courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection… 81. What needs to be stressed, however, in the light of some of the submissions made to us in this case, is that government has a broad discretion in such matters which must be respected by our courts…”
“The Court recalls that the notion of ‘respect’ as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention.”
“1. A state may exercise diplomatic protection in respect of a stateless person, who, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that state. 2. A state may exercise diplomatic protection in respect of a person recognised as a refugee by that state when that person, at the time of the injury and the time of the official presentation of the claim, is lawfully and habitually resident in that state.”
“The FCO recognises that it would be possible as a matter of international law for the UK Government to take up with a third State a breach by the latter of its international human rights obligations, even if the breach is manifested by actions against persons who are not nationals of the UK. However, normally any such action by the UK Government would be directed towards encouraging the third State to bring its actions into conformity with international law: it would not be directed towards the sort of action which the Claimants are seeking in this case, namely a formal request for their return to the UK.”
“In taking his decision, the Foreign Secretary has had his attention drawn to, and has taken into account, what is set out in paragraph 59 of the Claimants’ Amended Statement of Grounds. He recognises that the detainee Claimants’ families (who are located in the UK and many of whom are British nationals) are suffering distress, and is concerned that children of Mr El Banna and Mr Deghayes are inevitably seriously affected by their absence. He has given careful thought to the point that two of the detainee Claimants, Mr El Banna and Mr Deghayes, have been granted refugee status by the UK in the past and that they and Mr Al Rawi are nationals of countries (Jordan, Libya and Iraq, respectively) that do not appear likely to take action to protect their interests. But the Foreign Secretary does not consider that any of these matters outweighs the reasons referred to above in support of his decision not to make the formal request to the US Government which the Claimants seek.”
“The correspondence makes it plain that the second defendant has not been prepared to give an unequivocal commitment that they will be permitted to return to this country. It seems to us that that is the only proper stance he can take until such time as their release from detention becomes imminent. The decision will then be made on all the information available to him at that time.”
“In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts.”
“It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”