Taipei Times: Since September 11, governments around the world have been engaged in tackling terrorism, including Taiwan. The Cabinet has approved a draft anti-terrorism law, which would impose the death penalty on those convicted of engaging in acts of terrorism occasioning death. Do you think this contradicts the draft human rights law, which would seek to abolish the death penalty?
Metcalfe: If you're serious about protecting human rights, then you have to take very seriously the abolition of the death penalty -- and that's complete abolition.
That the draft human rights law is looking at a gradual, progressive abolition of the death penalty is very welcome. And to that extent, introducing the abolition of the death penalty to the new piece of legislation would appear to be a great advance.
PHOTO: GEORGE TSORNG, TAIPEI TIMES
In particular, the Taiwan government has to ask how much a deterrent the death penalty is in such cases. It is absolutely right to take terrorism seriously as a threat, but it's also important to strike a balance between protecting human life and protecting human rights. Ultimately, the basis of one is the basis of the other.
The government must take care in putting forward anti-terrorism legislation and not undermine the cause of protecting human rights.
For instance, the UK has a very strong anti-terrorism framework but doesn't have the death penalty. None of the European countries has anti-terrorism legislation that has the death penalty either. Certainly, the UK is a major terrorism target but even so the UK doesn't accept that it's necessary to bring in the death penalty. So it's questionable whether Taiwan, if it's not as much a terrorism target as the UK, would need the death penalty.
Taipei Times: According to the Cabinet, getting rid of the death penalty is a long-term goal, which has to be brought about slowly and cautiously to gain public acceptance. But anti-terrorism legislation is needed now and it is arguable that this most serious of crimes should carry the most serious of penalties on the books. This raises two questions: Does Taiwan really need anti-terrorism legislation? And if so, should it invoke the death penalty?
Metcalfe: It's not for me to say whether Taiwan needs anti-terrorism legislation. It's sensible to leave it to the government to judge whether there's such a need for anti-terrorism legislation, although it'd also be interesting to see what human rights organizations here in Taiwan have to say about the need.
However, even if anti-terrorism legislation is necessary, I don't see the need for a death penalty and there are reasons for that.
One is simply the moral case against the death penalty, which is that it's wrong to kill people unless it's absolutely necessary. If you can imprison someone for the rest of his life for the most serious offense, then it can't be said that it's strictly necessary.
Also, there's always a risk of a miscarriage of justice. In the UK over the past 15 years, we've seen a series of cases of miscarriages of justice. The UK would like to think that it has the best system of justice in the world. If the UK can produce miscarriages of justice, it's possible that it might result one day in a wrongful execution.
The problem with miscarriages of justice is if you send people into prison and you find out later that they're innocent, you can give them that time back by compensating them financially. But if you apply the death penalty on miscarriages of justice, there's no bringing them back. There's a very serious risk of error, which is a very significant factor.
Last of all, there's the question of whether the death penalty is a genuine deterrent. Look at America. It has a higher murder rate than other western countries. It has 3,500 people on death row. The murder rate in the UK is much, much lower than in the US. So it's hard to see whether the death penalty can seriously serve as a deterrent.
Taipei Times: A US federal appeals court has allowed the US government to deprive persons detained during counter-terrorism operations of fundamental human rights and legal protections. The UK has placed several people in detention indefinitely without charge. Do you agree that extraordinary circumstances may, on occasion, require extraordinary measures to combat terrorism?
Metcalfe: Well, yes and no. Yes, it's correct that in a situation of extreme emergency, human rights instruments allow for governments to derogate political rights from citizens. [But] the prohibition against torture is absolute, which means you can't derogate even in a time of emergency.
But in other cases, for instance, the UK has allowed for derogation from the right of liberty under the European Convention of Human Rights. The justification is that the need to combat terrorism is so extreme that they would be allowed to detain people without trial.
The problem for human rights organizations is basically one of evidence, because a lot of the evidence used to justify extraordinary measures is based in national security. As a consequence, the evidence they use can't be disclosed to the public. And that poses a particular problem for human rights organizations, because we have no way of knowing whether the government has assessed the information accurately or not. We have to rely on trust and assume that the government is telling the truth.
We do have some serious problems with the system of indefinite detention in the UK. There is, at least, a minimum safeguard, the Special Immigration Appeals Commission, which has set up a high court judge who looks at the evidence and decides whether the detention of someone is justified in each and every case.
We're deeply unhappy about the detention of people without trial. But we recognize the UK has the right to derogate under international conventions and we recognize that there's an independent assessment by a judge who's looking at the evidence to determine that there's a justification for their detention.
We're working at the moment to look in close detail at how effective the anti-terrorism framework in the UK is and how it can be improved to be more compatible with human rights. That's something we're seriously concerned about.
The situation in the US is worse because to date the federal court has so far refused to claim jurisdiction in relation to the people detained in Guantanamo Bay on the basis that the naval base is leased from Cuba.
According to a 1950 Supreme Court decision, the court doesn't have jurisdiction in relation to enemy combatants held on foreign territory. So far the US has said that the Guantanamo Bay naval base is foreign territory. It ignores the fact that they control the naval base and Cuba doesn't have any right to take it from them.
Intelligence
Taipei Times: A British expert has admitted during a hearing of the Special Immigration Appeals Commission in London that the British intelligence service would use information extracted from tortured asylum seekers and refugees believed to be connected with terrorism as evidence in court. Do you think the fight against terrorism can be used to justify the practice of torture?
Metcalfe: No, as I said before the prohibition against torture is absolute. And for a very good pragmatic reason as well as the moral reason, which is that, when they used to torture prisoners regularly for information, they realized that it was actually a very bad way of getting that information. Because at the end of the day, you'd never be sure whether they were telling you the truth or something they thought you wanted to hear.
We were very disturbed by the announcement that the Special Immigration Appeals Commission would hear evidence that could potentially have been extracted under torture. It was important to say that that wasn't evidence obtained by any British official torturing anyone. It was evidence that they said had been passed to them by the US or foreign governments.
Taipei Times: The armed forces have long been criticized for trampling on the basic human rights of conscripts. While the armed forces are a unique sector of society, what do you think the government should do to safeguard the basic human rights of armed forces personnel?
Metcalfe: If we're talking about compulsory military service, it's interesting because there used to be compulsory military service in the UK. But that was phased out. There's compulsory military service in a large number of European countries to this day. It's generally recognized that states have the right to require compulsory military service.
What's more controversial is what they can require of particular individuals, and we're talking in particular about conscientious objectors. If someone who doesn't want to do a specifically military from of service, then states have to make exceptions whereby such people can undertake some other kind of work such as community service or hospital duty.
There's also a question about the treatment of conscripts, which is another important point. There are a number of European human rights cases involving the treatment of conscripts. The fact that you're requiring someone to do military service doesn't mean that you can treat them at a lesser standard.
It's important to bear in mind that the military has different rules to those in civilian life and it can be very difficult for people who are compulsorily subject to military authority.
There's a difficulty balancing it and it's recognized that the military is entitled to apply special rules but their special rules can't be above someone's fundamental rights.
Refugees
Taipei Times: Citing national security, the draft refugee and asylum law which the Cabinet is considering mandates that Chinese nationals would not be eligible for refugee status in Taiwan, although the law would apply to refugees without discrimination on the grounds of race, religion or country of origin. What do you think of the government's rationale?
Metcalfe: I'd say in general that in the UK there is a great deal of controversy about asylum seekers. It's wrong to apply any blanket exemption in relation to someone's asylum claim on the basis of ethnicity or nation of origin. You always have to determine asylum claims individually, case by case. That has been required by the 1950 Refugee Convention, which says you have to consider each individual case on its merit.
The reason is simply because you can never say that someone's asylum claim is invalid simply because a person comes from a particular country, even if the country is generally quite a safe one.
And, again speaking very generally, it's difficult to see why the draft law couldn't apply to Chinese nationals if Chinese nationals are subject to persecution. We would have to see why they would be exempted from normal asylum and refugee rules.
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