Blair, Soblen, and Non-Refoulement: Islamist Deportations As de facto Extradition

Prime Minister Tony Blair announced recently a new plan to initiate the deportation proceedings against any non-citizen who, in his view, preaches hate or inspires militant Islamists to fight the West as part of a wider jihad.^[1] To accomplish this goal, the British government would likely attempt to dodge extradition treaty obligations with whichever country the given suspect was from, presuming that the country to which a suspect would be sent is to be detained or charged with a crime. Because such sanctions typically falls short of a criminal act in Britain, one cannot be formally extradited, namely because a fundamental principle of extradition law is the requirement of dual-criminality; that the given act is codified as a crime in the penal code of both the sending and receiving countries. Thus, other methods are sought.

The chosen method, according to Mr. Blair’s statements, seems to be the deportation route. It is the practice of British courts, as with most courts outside of the United States, to understand a treaty of extradition to be the exclusive method for the rendering of a criminal suspect from one country to another. Thus, by this precedent of exclusivity, the British government is not permitted to deport one –rather than go through the formal steps of extradition –as a way of getting around its treaty obligations.

How then will the British government get around the prohibition? The prevailing precedent in British extradition law is R. v. Governor of Brixton Prison Ex p. Soblen. Soblen,^[2] an American with dual citizenship with Israel, was convicted and sentenced to life in prison in an American federal court for disclosing classified information to the Soviet Union. Before taken into custody, Soblen fled to Israel. Once he arrived, Soblen was promptly sent back to the United States. The flight was not a nonstop. When the plane landed in London, he slit his wrists, in desperate hope that he would have the chance to escape. London officials promptly took him to the hospital. Soblen, having been charged in the United States with what at the time was a non-extraditable offense, could not be extradited. How then could Britain send him back to the United States? By taking Soblen through formal deportation proceedings, rather than extradition proceedings, the British Home Secretary was able to argue that it was not an attempt to dodge the treaty per se, but instead was merely the result of the British government’s desire to remove him from the country generally. That Soblen had been charged out of the United States –the place to where he was to be sent –was immaterial, the government argued, because it was by way of deportation not extradition. In real terms, it was a de facto extradition. The Court of Appeal, recognized the two conflicting interests: the supremacy of the extradition treaty for the rendering of one for criminal prosecution on one hand, and the right of the Home Secretary to deport any non-citizen in the interest of the public good on the other. The decision, the court concluded, could only be made by the Home Secretary himself, for only he maintains the requisite competence to determine whether a given deportation is for genuine deportable concerns in the interest of the public good, or merely an attempt to skirt the treaty. This deferral of judgment, in effect, permits the Home Secretary to avoid any issue regarding the conflict of extradition law and the law of deportation.^[3]

In the case of deportation of those whom Mr. Blair describes as “preachers of hate,” two further problems may arise. Because the country to which many of these non-citizens would likely be sent collectively share the common checkered history with respect to torture and maltreatment of prisoners, the treaty-based prohibition on refoulement (the sending of one back to a country where they are likely to be tortured) may prohibit the deportation. The primary source for the principle of non-refoulement is found in the colloquially termed Convention Against Torture (CAT), which states in part that, “no state shall expel, return (‘refouler’), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”^[4]

What constitutes “substantial grounds?” The CAT goes on to define the criteria for deriving such a conclusion based upon “the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.”^[5] Those countries to which suspected Islamists would likely be sent reads as a veritable Who’s Who in the world of prisoner abusers, leaving rather serious grounds to question the validity of these deportations.

Working concurrently with CAT objections are possible European Union human rights concerns, regarding the permissibility of refoulement, including violations of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Convention for the Protection of Human Rights and Fundamental Freedoms.^[6] The premise for these violations is not unlike that for the CAT.

Much like that which the CIA has done in connection with its “extraordinary rendition” program (rendering of suspected terrorists to third countries for tough interrogation), the British government appears to be procuring its own agreements with the receiving countries. The operative content of the agreements, in effect, likely attempts to provide assurances that the rendered suspect would not be tortured once sent. The critical question which lay at the crux of both the British deportation decision and the CIA’s “extraordinary rendition” program is whether or not those agreements in themselves waive refoulement objections. Because Egypt, for example, says it will not torture, does it really mean it will not torture?

Claims from those rendered by the CIA to Syria, Egypt, Afghanistan, Yemen, and elsewhere seem categorically to suggest that they indeed have been. What is to suggest that same fate would not face those sent by the British?

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[1] Patrick Wintour, Blair Vows to Root Out Extremism: Lawyers and Muslim Groups Alarmed, The Guardian, Aug. 6, 2005, available here.
[2] R. v Governor of Brixton Prison, ex parte Soblen (1962) 3 All ER 641, (1963) 2 QB 243, CA.
[3] See id.; Alun Jones and Anand Doobay, Jones and Doobay on Extradition and Mutual Assistance 3-008, 85-86 (2005).
[4] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 3, Section 1, U.N. Doc. A/39/51 (1984).
[5] Id. art. 3, section 2
[6] P.M. Blair has gone so far as to suggest amending the Human Rights Act, if necessary, to effectuate deportations. See Wintour, supra note 1.