How far should Complementary Protection go? The Case of Abu Qatada

On June 18, a London-based Muslim cleric who was known as Osama bin Laden's spiritual leader in Europe was released under severe restrictions on Tuesday, after a court decision that blocked his deportation to Jordan. This case has brought to the forefront the issue of human rights vs. security.

The cleric, Abu Qatada, a 48-year-old Palestinian with Jordanian citizenship and refugee status in Britain, faces a 15-year prison term in Jordan, where he was convicted in absentia for his connection to bomb attacks in 1998. This spring, however, the Court of Appeal in Britain halted his deportation, ruling that British officials could not guarantee Abu Qatada’s safety or prevent the use against him of evidence that was obtained through torture in Jordan. Gareth Peirce, who is Abu Qatada’s lawyer, is among the human rights activists who have argued that the deportation strategy violates the rights of foreigners who could face mistreatment and torture in countries with poor human rights records like Jordan, Libya, Tunisia and Algeria.

Home Secretary Jacqui Smith said the government will protect national security and public safety despite the unwanted release of Abu Qatada, which is an embarrassing setback for the government's anti-terror campaign. He will remain under extremely heavy surveillance as he returns to his residence and may have his bail revoked if he violates the terms of his release. Abu Qatada's freedom of movement and his ability to communicate with the outside world will be severely limited by harsh conditions imposed by Mitting in Tuesday's eight-page ruling.

In effect, Abu Qatada will live under constant police surveillance and is expected to be monitored at all times. He will be confined to his home 22 hours per day, and on the two hours when he is allowed to leave his house he will have to stay within a small area defined by the court.

The case is an example of how complementary protection (protections based on human rights instruments, beyond Article 33 of the 1951 Convention) which has an absolute ban on deportation if the individual faces torture can come into conflict with national security. While, there are exclusion clauses in the 1951 Convention that allow states to deny people from refugee status and can remove people based on if they have committed a particularly serious crime, complementary protection can serve as a safety net. The compromise is rights- while Abu Qatada does have the right of non-refoulement, he clearly has any other rights.