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Question/Comment
30 May:   I wonder if the information that the Spanish got about the planned Al Quaeda attacks on Britain (see the Telegraph) were obtained by using "robust" interrogation techniques that some people might regard as torture. If it was, do the liberals among us think we should ignore that information because of the way it was obtained? I bet the people of Manchester might have a different opinion to the people from the south.    Tuppy
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The person from whom the information was obtained was actually an informant according to the article, so it is perhaps unlikely he was tortured for it. But all the same, had that information originated from torture, the point you make I suppose illustrates the dilemmas debated here and elsewhere about the utility of such evidence, irrespective of whether it can be used in a court of law.    Aspals
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29 May:   To reply to Tess. I am not saying the exemption applies in this case. In fact, I am saying that it looks like there is potential criminal liability (bearing in mind the findings of the sheriff as to the catalogue of failings). This is a matter which should be investigated by the civilian police and passed to the CPS to consider prosecution.    Anthony
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28 May:   If what Anthony says is true, although I'm not sure I agree, it is absurd that the army can be held corporately liable for income generation activities, but not for killling cadets.   Tess
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28 May:   Just to pick up on Tess' remark. The training of cadets doesn't look like it is within section 4 of the 2007 Act - the so-called army get out clause. This exemption relates only to (1) operations within section 4(2) (peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of the armed forces come under attack or face the threat of attack or violent resistance), (2) activities carried on in preparation for, or directly in support of, such operations, or training of a hazardous nature, or (3) training carried out in a hazardous way, which it is considered needs to be carried out, or carried out in that way, in order to improve or maintain the effectiveness of the armed forces with respect to such operations, or (4) activities of special forces. As this child's death does not come within any of those heads, there would not appear to be an operable "get-out". There is, therefore a "relevant duty of care" within the meaning of section 1, whether as occupier of premises or through the supply of goods or services (whether for consideration or not). Training of cadets would be regarded as a supply of services. Unfortunately, the army never learns. Which is all the more reason why their "license to kill" our own troops is offensive and in breach of the spirit of the corporate manslaughter legislation. There is jurisdiction to put the relevant senior managers on trial as the provisions of section 28 extend to England and Wales, Scotland and Northern Ireland.
Of course, none of this in any way affects the breach of article 2 occasioned by the catalogue of failings, nor the prosecution of any individual in the event of evidence to support a charge of common law gross negligence manslaughter against him or her (there is no offence of aiding, abetting ect the offence of corporate manslaughter - see section 17). At the very least, one hopes the health and saftey executive will consider charges.    Anthony
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27 May:   Another person dies through military incompetence. This time a young girl of 14. Will the exemption under the Corporate Manslaughter and Homicide Act prevent a prosecution in this case? Probably. After listening on the radio to the circumstances of the death there ought to be a prosecution. The poor girl was trapped upside down in her canoe for about one and half hours. Why didn't anybody notice?    Tess
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27 May:   It sounds like Karadic is really making a big thing over the deal offered to him by the yanks. It is more interesting that the tribunal has said it is going to ignore it even if the deal did exist. The tribunal wants to convict Karadic. The result is a foregone conclusion.    Tuppy
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I think that any such announcement is most unfortunate as it gives the impression that the court will convict notwithstanding any political deal. As I said last year, 'the downside in all of this is that, if we live in the real world and want to rid countries of evil leaders to save further suffering and bloodshed, always opting for the pious solution of the law may not be the best approach. Sometimes, doing "a deal" may be the best option. Unfortunately, if such deals are seen to be later reneged on, it hardly encourages tyrants (and I can think of one or two dotted around the world) to peacefully give up power and go into early retirement. While that may not be the pious approach, it probably achieves the desired objective - a cessation to suffering of the indegenous people - more speedily.' But then again, I recall form my time in the Balkans, that the ICTY was not really interested in the political initiatives to solve the problems in that part of the world. It was a new organisation in the early 70s and wanted to justify its existence. Prosecutions was what it was about and it wanted to get on with business. It was also committed to putting Karadzic and Mladic on trial. There is no doubt that both have much to answer for. Now they have Karadzic it seems the Holbrooke promise threatens to spoil the party, but the ICTY is not about to let that happen.    Aspals
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25 May: i'm not surprised about goverment get outts as this lot are up to their necks in muck and have to go. we need a goveerment that understands soldiers and where mps have served. this lots a waste of space.   pete 
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23 May:  To reply to Pegasus, I was merely using the case of the non-airworthy aircraft as an illustration of circumstances where, but for the statutory exemption which MoD has, I saw the statutory duty being breached. Of course, there are still cogent grounds under article 2 of the Convention, but that does not bring those responsible sufficiently to book, in my opinion. Criminal behaviour should be punished by the criminal courts. Gross negligence leading to death is at least prima facie evidence of criminal behaviour. The government has been shown to be wanting in its respect for the lives of soldiers. My view is that the same standard should apply to the MoD where serious failings which would, if attributable to other organisations, be prosecuted and that the statutory exemption is disgraceful. It lets the Treasury and the government off the criminal hook.   Anthony 
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23 May: Just to comment on Anthony's message, there couldn't have been a prosecution in respect of the non airworthy aircraft as the Corporate Manslaughter etc act wasn't law when the decisions were made.    Pegasus
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22 May:  I don't think anyone is saying war isn't dangerous, Pete, but we are talking about ensuring that the government makes sure that our soldiers are kitted out with the best money can buy. Is that too much to ask when you are sent to dangerous places to do the government's bidding.    Rob
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22 May: i am not opposing measures to protect the lives of our soldiers. that would be daft. what i do believe is that to train soldiers for war the training has got to be realistic. health and safety rules aren't relevant in war and you cant fight wars with one eye on the enemy and the other on the rule book, or should I say books these days as there are so many things a sqaddie has to think about. sorry to disappoint people but war is a dangerous business and sad it might be but people do get killed   pete 
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22 May:   I can't understand why anyone, specially an old soldier like Pete, would want to oppose measures to protect the lives of our soldiers. The judges made the right decision. Like Anthony says, it would be crazy if Iraqi civilians held in a british base got protection under the convention when Iraq isn't a party to the ECHR, but not our own soldiers.    Tess
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22 May:  I am not blaming the heads of service for going to war in Iraq and I would not see them as having liability for that decision. It was a political decision which, as we now know, was based on a lie and, perhaps, questionable legal advice. Where I do think there should be liability under the 2007 Act is in situations where , for example, training is carried out with scant regard for safety, especially in situations where similar incidents have happened in the past and yet nothing has been done to correct any systemic failings. By way of a more practical example, the knowledge that military aircraft were flying when they were palpably not airworthy, yet senior commanders continued to require them to be flown, thereby putting the lives of aircrew in danger is another case where there would, in my opinion, be gross negligence and a breach of the "relevant duty of care". If one of those aircraft was lost, together with its crew, what justice would be available? No criminal prosecution under the Act as, of course, the "get out clause" prevents a prosecution.
To reply to Pete, while I find his views quite refreshing, why should the Human Rights Act and Convention be applied extra-territorially to those "within our jurisdiction" when we operate abroad (as in the case of the death of Baha Musa " see the decision in Al-Skeini ), but not to our own troops? Soldiers should be provided with proper equipment. It is one thing to say, in the first throws of combat, that we use whatever we have available to do the job, even though it is not the best equipment, and quite another to say, several years down the line, when there has been the opportunity to provide better equipment, that there are financial constraints preventing us from doing so etc. The Smith case is a clear acknowledgement by our judges that our soldiers will be protected under the law against arbitrary decisions which seek to place them in greater peril than the situation entails. A soldier knows what the risks of the job are. His enlistment is tacit acceptance of those risks. What he does not accept is the taking of unnecessary risks with his life, just because politicians and Treasury officials don't want to spend the money. If that is the case, then bring the soldiers home, but don't play games with their lives.   Anthony 
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22 May:  government get outs are a feature of this sick and depraved lot in power at the moment, who think more about lining their own pockets with taxpayer money than making damn sure the three services are properly equipped to do the job they sent them to do. All the same, I don't think it would be fair to blame the heads of services for the mess or for the decisions to go to war in Iraq.    Rob
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22 May: sorry anthony your talking a load of b's just like the judges in this case. you cant have proper training if youve got to be looking over your shoulder all the time to make sure that everything is human rights compatable. the law has no right interfeering in operational matters. it is going too far this time.   pete 
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21 May:  The judgment of the Court of Appeal in the Jason Smith case (upholding the High Court decision) is to be welcomed. The government has not been allowed to get away with its failures to the Services. The right to life is not signed away upon becoming a soldier, or a policeman, or a fireman. War is not an excuse for disregarding the safety of our personnel. On the contrary, everything possible should be done to protect them. It will be interesting to see whether the MoD's get out clauses in the Corporate Manslaughter and Corporate Homicide Act 2007 will be regarded as incompatible with the Convention. Section 4 says that "operations", "activities carried on in preparation for, or directly in support of, such operations, or ... training of a hazardous nature ...." are not to be considered as imposing a "relevant duty of care". The present exclusions mean that soldiers can be killed during training for operations, where there is blatant and gross disregard for safety, and the MoD has no criminal liability for the death.
Arguments that the law is seeking to diminish combat effectiveness are palpable nonsense. In fact, safeguarding the lives of service personnel placed wilfully in harm's way should be a priority. Ensuring thorough and safe training with proper equipment is just a matter of common sense and, in fact, enhances combat effectiveness. The present attitude of government exemptions and "get out" clauses merely serves to underline the small value it places upon the lives of our servicemen through legislation which allows deaths through training to go unpunished in the criminal courts as a corporate matter.   
Let us hope that the MoD now has the good sense to leave this decision in the Smith case as it is. I anticipate that if they take it to the Lords they will lose. If they do not, I would view their chances of success in Europe as pretty minimal.
Some time ago I warned a high level delegation of politicians (among whom was a former Law Officer) meeting with the then Adjutant General that article 2 raised the sort of issues now being argued. My views were not welcomed by the former Law Officer. I also wrote a paper setting out the various areas of service life which would be affected by the ECHR. That, too, was dismissed. As my old Latin master used to say, verbum sat sapienti (a word is sufficient to the wise).   Anthony 
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10 May:  While I understand the sentiments of Pete and Rob, we have to stay within the law, as maddening and frustrating as it is, even when it is quite clear that many within the justice system are sometimes blinded by the Convention. It seems to sometime act like an hallucinagenic on some judges and distorts their perspective, but if they get it wrong it is up to Parliament to change the law. All the same, and in spite of Pete's colourful view, we cannot go round summarily executing people.    Anthony 
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10 May:  you just top em and be done with it.   pete 
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10 May:   I'm afraid I don't think that's much of an answer Anthony. If the int shows that guy is a baddy, letting him go , which is what the law seems to say, just puts him back into society to seriously harm us. The courts have to get their heads round the fact that revealing intelligence, so that you can prosecute a person in court, could cost lives. The source may be a close friend, familiy member, informant within the organisation. Worse still, if you willy nilly reveal your sources and they get killed, you then can be pretty sure that nobody will want to provide you with sensitive information again. So there has to be confidence in the security services that if they say a suspect is a danger to society, we can get rid of him or, if their home country doen't wants to take them, they stay locked up until they no longer are a threat.    Rob
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6 May: To reply to Rob. You do whatever is permitted by law.   Anthony 
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5 May:   Sorry Anthony, the question posed is what do you do about the informaiton obtained which, by independent and may be non-admissible means is actually reliabel and shows that the individual was up to no good and is continuing to be up to no good?    Rob
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2 May:   The answer Anthony is not to take prisoners then you don't have the grief of paying out compensation for talking to them loudly. Even if we have to compensate their families then at least the individuals themselves aren't a threat any more.    Tuppy
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2 May:  okay briony i confess. what is it you want to know.    pete 
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2 May:  I've just read the Independent article referred to by Anthony. I feel vindicated by the views of that professional interrogator. Not only is it illegal but Maj Alexander doesn't think torture works because a person being tortured will tell you anything just to stop the pain.   Briony
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29 April: I'm not sure that I follow your argument Pete. I have not read his book but although Maj Alexander might not use torture it is possible that he is aware of others who do/did and whose results were less positive than his own. Thereby providing a basis for his comparison.
To answer Tuppy's point, you do whatever is permitted by law eg deport them. As for the evidence of torture, it is worth bearing in mind what Pegasus pointed out in citing Lord Hoffman in R-v-A, that "even when the evidence has been obtained by torture - the accomplice's statement has led to the bomb being found under the bed of the accused - that evidence may be so compelling and so independent that it does not carry enough of the smell of the torture chamber to require its exclusion." In other words, other circumstances may independently provide the necessary causal link to the crime.   Anthony 
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29 April:  chatting to terrorists over a hot mug of coco might be maj alexanders way of doing things but if time is short i say you do whatever is necessary and use whatever means is necessary to stop people being killed. if he never used torture to get infomation then hes hardly in a position to say whether it works or not.    pete 
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29 April:   Fair point Anthony, but it still doesn't deal with the question about what you do with reliable intelligence that has been gained through torture and which isn't admissible in a court of law.    Tuppy
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27 April:  Putting aside the legal and moral arguments against using torture it was very well expressed in yesterday's papers by Major Matthew Alexander, an American interrogator who personally conducted 300 interrogations of prisoners in Iraq, that it just simply does not work. So, there is now strong evidence from the military about its actual utility as a reliable method of gaining intelligence. Legal sceptics may find his arguments persuasive.   Anthony 
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22 April:  rob makes a good point. thats the thing everyone overlooks in the histeria about torture that the information confessed by terrorists might prevent other people being killed. while briony says torture is wrong it can work to save lives. do we have to let people go in those cases just because some liberal lefty lawyer says the bloke giving the information was tortured? its ridiculous. terrorists who want to kill us and get caught are let back onto the street and given compensation from our money. if the goverment doesnt get a grip over this growing liberalism then they cant complain if people take to the streets in protest. it could turn very nasty. people are very unhappy.    pete 
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Interesting article in the Telegraph: Barack Obama must beware of playing party politics with security   Aspals
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22 April:   I've just returned from a trip to the middle east where there is much amusement at the hand wringing going on over the alleged torture of terrorist. A lot of people I spoke to wondered where the priorities were and thought that the rather pious and sanctimonious European attitude to human rights was a charter for terrorists who are in a win win situation " if they don't get caught they kill lots of people, if they do get caught they benefit from human rights that punish those who capture them and then receive massive payouts for being shouted at. I found their point of view quite persuading. Now the US is thinking about prosecuting members of the Bush government who gave the orders for torture, while not prosecuting those who actually did the torture, but nothing is said about the small fry who were prosecuted for carrying out CIA orders in Abu Graib. As for whether torture works, Dick Cheney in today's Guardian wants other memos declassified as he said they show the value of intelligence gained from the interrogations.    Rob
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21 April:  If something is regarded as wrong, both morally and legally, which torture is (it has been almost universally condemned) then there is always a price to pay for following those principles.    Briony
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18 April:   The wrangling over so-called torture goes on in today's news, but it looks like the States have seen sense. Even Obama who ordered the closure of Guantanamo has said that those who committed acts of torture will not be prosecuted. At the same time the attorney general in this country is considering whether to prosecute our agents, not for torture, but for aiding and abetting it. The bleeding hearts in the UK wont see the irony in this. Let's hope the attorney general sees sense and leaves our agents alone. It would be very unfair to prosecute those who actually didn't commit torture when those who did are let off. Nobody has said whether the intelligence gained from these methods was as useless as lots of people argue information gained by torture is. The question still to be answered is, does the evidence show that these "tortured" men were or still are a danger to our societies? That is far more important than the method used to extract the information in the first place. The bleeding hearts will still be complaining about torture when the terrorists they defend are setting off their bombs to kill us all. Don't you just love em.    Tuppy
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15 April;  In reply to Pegasus I would say that those who represent a direct threat, such as the planners, the perpetrators and the bomb makers are definitely eligible for targetting. The real problem is the legal basis for extra-territorial killings. I can also imagine other countries would get a bit upset if foreign (UK) agents started bumping off suspected terrorists in their country in Mossad style attacks.   MilLaw
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12 April:  the disctinctions roger makes sounds like semantics to me but then again ianal.    pete 
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12 April:  It seems that Jon Swain, writing in the Sunday Times today, agrees with Rob. The article is well worth reading.   Anthony 
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11 April;  As for terrorists planning attacks on our civlisation and values, I would just say "Honi soit qui mal y pense".    MilLaw
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10 April:  While I am all for killing those who want to kill us, I think Briony makes a good point about the level of involvement needed to qualify as a target. I think that for a terrorist to qualify as a target they have to fall within a narrow category. They should be either
    1. taking part in or about to take part in a terrorist attack
    2. involved in the planning of terrorist attacks
    3. a bomb maker/weapons makes
    4. a terrorist weapons procurer
We might argue that fund raisers or those giving large donations should also be targets, but the difficulty there might be deciding on the level of donation or amount being raised. There's still the problem of finding legitimacy for doing it. We need a convention or international agreement dealing with the right of states to act against international terrorism and to respond lethally, but I can imagine quite a few states would be very against the idea as it might involve an invasion of their sovereignty if assassins from country A kill a terrorist from country B in their country. It's quite a tricky problem. Perhaps the answer lies in building up cooperation between countries to act against terrorism, so that intelligence showing terrorists in country A who are known to be planning attacks in country B can be arrested and dealt with by country B or extradited to country A for trial.    Pegasus
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10 April;  if terrorists targeted judges (Rob) you can be sure that they might take a very different view on the human rights of the terrorists.    Will
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10 April:  Referring to Pete, war isn't state sponsored murder. Killing in war is lawfully authorised because a legal status exists between 2 or more states, whereby they engage in belligerent conduct against one or other. The situation is governed by the Geneva Conventions and Additional Protocols. The difficulty I have with the proposition of targeting terrorists for assassination is establishing a lawful basis for it. Terrorists do not constitute a state, therefore even though engaged in international criminal acts, the GCs do not apply. So, I can't see what lawful authority there is for taking them out.    Roger
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9 April:  linking to brionys comment all i want to say is isnt war state sponsored murder.    pete 
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9April:  I can hardly believe that there are supposedly intelligent people who wish to condone state sponsored murder., because that is what it amounts to when you go round with death squads picking off people who you say are plotting against you. What sort of level of involvement in terrorism will make them eligible? We must stand firmly behind the rule of law.    Briony
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9 April:  tuppy gets my vote. save the taxpayer a bundle and rid the world of some real scumbags.   pete 
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8 April:   Yet again the English courts snub foreign courts and permit people wanted for serious crimes from being sent back to their own country to stand trial. Our pompous attitude that our system of justice is superior to any other is one of the reasons why England is a haven for terrorists and undesirables. Whether these men are guilty or not of the most serious crimes they are wanted for should be decided by their courts. Worries about so called bias should be dealt with by sending them for trial at the ICC whose jurisdiction should be extended to cover it. Here's a bet, they will all claim compensation for their time in prison waiting extradition and we, the long suffering taxpayers will have to pay it. No wonder the place is bankrupt after doling out millions in compensation to "human rights victims" and billions to corrupt bankers.    Rob
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8 April:   The links to the articles on targeted killings were brilliant. I think it's a very persuasive argument to say that these killings can be carried out as pre-emptive self defence. You don't have to wait until someone shoots you before you pull the trigger of your own gun. The bad news is that the governments in this country would never have the guts to do anything like this, so again we will have to rely on the US to do evryone's dirty work.   Tuppy
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6 April;  It looks like Pete has found a strong ally in the form of Lord Hoffman, who wants UK to leave the European court. Judging by comments on Aspals, it would be a popular step to take. Pity it hasn't been done yet to stop the likes of those who keep challenging rulings of our courts in Europe.   Will
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6 April:   If evidence is obtained by torture and even if it is reliable and shows that some nutcase is about to blow up a bomb and kill civilians, the courts say that the evidence isn't admissible in court. So the terrorist escapes conviction and walks free. We are at war and anyone who takes arms against us and tries to wipe us out is our enemy and is a legitimate target for security forces. We should just slot every one of them and save the expense of a trial. It wont be murder because we're at war and the enemy is an irregular fighter. The Americans call it the war on terror.   Tuppy
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For an interesting article on targeted killing, which is similar to what Tuppy is advocating, see Israel's Targeted Killings of Hamas Leaders by Mayur Patel. It examines the legality under headings of self defence, International Humanitarian Law and Proportionality. Another article is by Gal Luft, called The Logic of Israel's Targeted Killing. Finally, I also commend the article by Professor Gary Solis, entitled Targeted killing and the law of armed conflict.   Aspals
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31 March:  i'll answer rob. nothing will happen to any terrorist in this country. our courts and legal systems are letting them get away with murder. the human rights act took rights of ordinary citizens away in favour of minorities. the situation is crazy.   pete 
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26 March:   To kick start the Sounding Board after so much silence, the Foreign Office report referred to in today's news items illustrates the very real gulf between idealism and reality. At present, with the uproar over Binyam Mohamed's alleged treatment, we seem to be losing sight of some very important questions such as, what if the evidence shows we are in grave danger? It's all well and good to condemn torture, but what do we do if the evidence which others have gained by that means turns out to be (a) reliable and (b) shows that the individual or others are engaged in serious terrorist acts? Another report suggests that this country is a haven for human rights abusers. The fact that the human rights of such dangerous individuals (many of whom are not even British) are allowed to trump the human rights of law abiding British citizens is proof that the Human Rights Act is not working properly and that the courts are permitting it to be exploited. Talking tough on terrorism is not enough. There has to be a coordinated approach from government, the police, the intelligence services, the prosecutors and, of course, the courts. It is disappointing that some of our judges still seem to inhabit a different world.    Rob
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I can understand your bemusement, Rob, but it is only fair to point out that the House of Lords in the RB (Algeria) (FC) case (Abu Qatada) quite recently took a firm stance on this matter, only to be told that the individual was taking his case to Europe so we, the British taxpayer, would have to retain him, maintain him and pay his legal aid fees until the case was determined. See also Tuppy's comments.    Aspals
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1 March:   I have to agree with Pete after I saw the article that spoke about the release of three Algerians and a Jordanian who are waiting deportation because they are a threat to security. It's a mad mad world.   Tess
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1 March:  What a lovely thought Aspals.    Briony
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27 February:  this countries a soft touch for any wakky freak and terrorist we welcome them all and anyone gets in except if your dutch and want to show a film in private to house of lords peers who invited you to put another view.   pete 
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27 February;  Aspals, you old hippy. Bet you were at Woodstock. So who was the rasta muscian?   Will
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I wish.As for the musician, it was James Cannings.   Aspals
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26 February:   I don't know about anyone else but I just find it really depressing to read that British muslims have decided to go to Afghanistan/Pakistan in order to fight our soldiers who are legally there under a UN mandate. Fighting against forces of the crown sounds a bit like treasonous action to me. We have read a lot lately about people held in Guantanamo and how many supposedly innocent people there are in there, but why do supposedly peaceful British citizens go out to Pakistan training camps in the first place if they don't want people to think they support terrorism in the name of Islam? If they follow that path, they have given up their British citizenship/right of residence and washed their hands of our country. So why should we have to accept them back into our midst, especially when they don't denounce terrorism and sever links with terrorists. Why should we have to put up with these hostile people with an enormous chip on their shoulder. Their beliefs and behaviour have made life in this country dangerous for the rest of our peaceful citizens, have been divisive by making us distrustful of all law abiding muslims, and have brought about intrusions into our lives with proposed email and electronic intercepts that a free and democratic society should not have to put up with. Let's be clear this is THEIR FAULT. Government support for minority rights over majority rights has killed freedom of speech in Britain and we live in an increasingly Stalinist like state. Security services have a duty to protect us from terrorists, so they should do everything they can to make sure that they don't get into our country in the first place and those that are here are locked up. The government and courts have their parts to play. I agree with Pete that the security of this country is not a matter for the European court to decide. It is our sovereign right to take proper measures to protect ourselves from the evil killers who masquerade under the banner of Islam and we should be able to do so without interference form outside countries. What has it got to do with them anyway. I also think it's a bit disappointing that so few law abiding muslims come out and are more openly critical of the terrorists.    Tuppy
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Many years ago I was returning to the UK from Germany by train and travelled Eurostar from Brussels to Waterloo. I got chatting to a very interesting man who was a rastafarian musician who had even played with the late great Bob Marley. As we chatted he told me that he lived in New York, although originally from the Caribbean. I asked him what life was like in New York and whether, as a man of colour, he experienced racism. His laconic reply was to the effect that societies concentrate far too much upon what divides us rather than what unites us. Those wise words had a profound effect on me and convinced me that employing a policy like that in the UK would be a most positive and productive step to take, but it requires a willingness on all sides. Looking at pictures from outer space of this almost insignificant speck of dust in the universe that is our planet, it does make one wonder why it is that we are so hell bent on making our brief time in this place so full of torment and violence. Oh dear, I'm getting philosophical!   Aspals
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