The Guardian - 11 December 2006

Security at the expense of freedom is neither lasting nor safe

This year International Human Rights day comes just over a year after the first allegations about rendition and secret detention in Europe. After the initial wave of denials and disbelief we now know for a fact that rendition took place in at least two European countries, and there is circumstantial evidence that it may have happened in several others. The most worrying, however, is not what happened in the past, but the fact that our governments are not doing enough to protect us from similar threats in the future.

The 46 governments of the Council of Europe member states have now had five months to study and respond to my recommendations on how to prevent those abuses of human rights ever happening again. They have not yet responded, and that in itself is a reason for serious concern. We should not forget that extraordinary rendition and illegal detentions are only fancy words to describe practices which are a blatant violation of human rights and a criminal offence.

To make things worse, rendition, illegal detention and any other similar unlawful practices are also weakening our fight against terrorism. Injustices such as these are quickly exploited by extremists to justify their criminal cause. It is common sense that the only effective anti-terrorist policy is the one that stops more terrorists than it helps to recruit.

This is why I recommended to the Governments of Europe that they should establish more effective control over the operations of intelligence services. Most if not all our countries have procedures to control their own agencies, but very few have any influence over so-called friendly foreign agents operating in their backyard. The Council of Europe should therefore set minimum standards for national laws on parliamentary oversight and judicial control preventing abuse by domestic and allied agencies alike.

I also proposed that our Governments should take additional powers to enforce the European Convention on Human Rights with regard to civil and state aircraft. We must ensure that our airports and airspace are not used for transporting illegally detained people to countries where they may be tortured or imprisoned in circumstances which are contrary to international law.

Finally, I recommended measures to ensure that international rules on diplomatic immunity are not misused. Immunity should not be a license to kidnap, torture or kill.

My recommendations were made public in September, and they received wide support from parliamentarians in the Council of Europe and the European Parliament, as well as from international human rights bodies such as Amnesty International, Human Rights Watch and the International Commission of Jurists. Some Council of Europe governments were supportive, while others have been more reserved. Some are clearly hoping that the issue will go away with time, but they will be disappointed and here is why:

One, parliamentarians, non-governmental organisations and media are waiting for answers and will not give up. Ultimately, Governments will be held responsible by those who control them – their own national parliaments.

Two, I continue my inquiry under Article 52 of the European Convention on Human Rights, and I recently wrote to a number of Governments asking them to update their replies related to the allegations of rendition. Council of Europe member states are legally bound to cooperate.

Three, there are ongoing national investigations, which include a criminal prosecution case in Italy, and these are likely to disclose more information and may lead to new parliamentary inquiries or criminal investigations in other member states.

Four, the prospect of criminal charges will eventually produce the “deep throat” effect. Agents who participated in renditions and illegal detentions are likely to become increasingly worried about their legal situation. In the end, some of them will decide to come clean to protect themselves.

Five, some of the victims may, and probably will, bring cases to national courts and ultimately to the European Court of Human Rights. The judicial body of the Council of Europe will examine not only whether a member state directly violated a human right but also whether the government did everything it could to prevent such violations being committed by others.

This is why I believe that it is in the best interest of European Governments to act now rather than react later. Whether they will decide to follow my recommendations or pursue alternative ways to enforce the European Convention on Human Rights is for them to decide. What they must do is demonstrate to their citizens that they are doing everything they can do within the law to protect the safety and the human rights of their citizens. Europeans will refuse to choose between the two because they know that security at the expense of freedom is neither lasting nor safe.

Terry Davis, Secretary General of the Council of Europe