Solicitor to the Inquiry
Dear Ms Carnegie,
We are grateful for the opportunity to make a submission to the Inquiry into the death of Baha Mousa. This submission is based on our expertise on the application of international human rights law (hereafter “IHRL”) and international humanitarian law (hereafter “IHL”) to detention, the prevention of ill-treatment of detainees, and the prosecution of those responsible for such ill-treatment.
With this in mind we believe there are four key issues that should be addressed:
1. The UK government’s position on the application of international law, in particular IHRL, to the actions of its forces outside the territory of the United Kingdom, as it affects detention and torture and ill-treatment.
2. The application of the basic protections of international law as they apply to all persons in detention.
3. Investigations into alleged crimes committed by members of UK forces against detainees, particularly when those crimes are crimes in violation of international law.
4. Prosecutions for those crimes.
We have organised this submission in the form of responses to the list of 32 questions set for Module 4 plus some additional recommendations.
Application of international law – Questions 1-8
It is important that the application of IHRL is considered, particular that concerning torture and ill-treatment. The United Kingdom is a party to all the major treaties prohibiting torture and ill-treatment and requiring action be taken to prevent and prosecute such behaviour, including the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol, and the European Convention on Human Rights (ECHR). However, we understand the UK government’s current position is to accept that the European Convention on Human Rights applies within detention centres operated by its armed forces, but to deny that any other human rights law applies in those facilities, most critically the CAT, and to deny that even the ECHR applies to its forces outside detention centres.
We believe that the failure to understand and apply the basic prohibition on torture and cruel, inhuman and degrading treatment (“ill-treatment”) in this case and others in Iraq, is a direct consequence of the UK government’s position on the non-application of IHRL to its armed forces. In particular the refusal to apply human rights law led to the failure to use the international definition of torture and ill-treatment (which clearly prohibit the 5 techniques) and the failure to meet the requirements under CAT for all cases of such ill-treatment to be investigated and prosecuted. With that in mind, we make the following recommendations, that:
-The United Kingdom accepts the application of IHRL to actions of its forces at all times and in all places, in particular those that pertain to the protection of detainees and prohibit torture and ill-treatment, as set out in the CAT.
-In the questions set out for Module 4, reference to the 5 techniques should be expanded to all forms of torture and ill-treatment prohibited by international law.
Question 1 – How does the MOD’s current policy for Captured Personnel of all categories (“CPERS”) address sight deprivation, sleep deprivation, stress positions, deprivation of food and water, and subjection to noise?
The inquiry should address to what extent the current policy for CPERS prohibits all forms of torture and ill-treatment, and whether it is regularly updated to reflect developments in international law, i.e. that the definition of prohibited methods that can be used on CPERS include specific methods that have been labeled as ill-treatment by international bodies, including international criminal tribunals, international human rights bodies (including the European Court of Human Rights and the Committee Against Torture). This would include, but not be limited to, the 5 techniques.
Question 3 – To what extent is a prohibition on the 5 techniques now entrenched in military doctrine?
We believe the inquiry should go on to determine whether UK military doctrine accepts that all forms of torture and ill-treatment as defined as such in international law are prohibited at all times and in all places, without the possibility of any justification whatsoever.
We draw the attention of the Inquiry to the text of article 2 of the Convention Against Torture:
(2) No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
(3) An order from a superior officer or a public authority may not be invoked as a justification of torture.
Question 6 – Should the use of the 5 techniques be specifically criminalised, or is legislation otherwise required?
What should be criminalised are all acts of torture and ill-treatment, as defined in international law, at all times and all places, without exception and without the possibility of justification. Criminalisation should be made clear to apply to those who give the orders for such treatment or are otherwise responsible, those who aid and abet, those are complicit and those who attempt to cover up evidence of these crimes or otherwise interfere in justice.
Those in a position of command should be made criminally liable for torture and ill-treatment when there are a position of authority and fail to prevent or to prosecute such acts, as set out for war crimes, genocide and crimes against humanity in s.65 of the International Criminal Court Act 2001:
(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where—
(a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and
(b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where—
(a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences,
(b) the offences concerned activities that were within his effective responsibility and control, and
(c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(4) A person responsible under this section for an offence is regarded as aiding, abetting, counselling or procuring the commission of the offence.
We do not believe that the 5 techniques should be specifically criminalized as that could be taken to imply that other forms of ill-treatment are permitted. Instead they should be used as examples of criminal acts under the crimes of torture and ill-treatment.
We are concerned however that the latest consolidated guidance for overseas interrogation published by the government on 6 July 2010, appears to create an exception for hooding and blindfolding in some circumstances. The annex to the guidance Annex “Standards of Arrest, Detention and Treatment (Paragraph 10),” includes a list of practices, that the UK government considers “could constitute cruel, inhuman or degrading treatment or punishment.” That list includes at paragraph d(iii):methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit)
Given the importance of hooding to the present case, we believe that the Inquiry should consider directly whether the current guidance is sufficient to prevent similar abuses in future and is compatible with the UK government’s human rights obligations. In our assessment, this provision of the guidance fails on both counts.
Question 7 – What provision is made for the review of the doctrine on the handling of CPERS?
The doctrine should be regularly reviewed to reflect developments in international law in the protection of detainees and prevention of torture and ill-treatment.
Prisoner handling - Questions 8-21
The UK government should accept that IHRL in the protection of detainees applies to all CPERS. In particular that should mean:
That all detention, at all times, should not be arbitrary, i.e. it must be based on clear legal authority to detain.
Such legal authority to detain must be clear for each individual detainee not only on the grounds offor [the rules/procedures of] detention, but also in setting out who can do the detention, who is responsible for them, and where they can be detained. Anyone arbitrarily detained for any period of time should be compensated.
Article 5 of the European Convention on Human Rights:
(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this article [right to liberty and security of person] shall have an enforceable right to compensation.
Article 9 of the International Convention on Civil and Political Rights:
(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
1) That there should be no incommunicado detention and detainees have an immediate and ongoing right to medical attention, to visits from family members and legal representatives (who should be told immediately as to where they are being detained).
2) That all detainees should be brought promptly before an independent judicial authority (i.e. outside the chain of command), that should review their detention, and order their release if the grounds for detention are not met. This should be the local criminal courts where UK forces are conducting [law enforcement operations and holding criminal detainees.
Question 12 – Once CPERS are transported to an initial detention centre at company or battle group level:
a)What arrangements are provided for checks on the physical welfare of CPERs?
b) To what extent is access to CPERs now limited to those who have a proper need to visit them;
c) What arrangements are provided to ensure that CPERs are provided with adequate food and water taking into account the climatic conditions?
d) What protections are in place to ensure that tactical questioning does not extend beyond the obtaining of time-sensitive tactical intelligence?
When UK forces choose to detain they assume responsibility for the welfare of the detainees. Therefore any detention operation should be planned to ensure that detainees have at all times access to medical care (physical and mental), in a language they understand, and sufficient and appropriate and adequate food and water and appropriate standards of detention, including temperature control of the place of detention.
Question 13- Is there a need, with suitable adaptations for the military context, for a role similar to Custody Sergeants in police custody facilities?
Having a person with authority in each detention centre responsible for each detainee would be appropriate. This person should have a separate chain of command to the local force commander (who bears legal responsibility for the treatment of detainees) and be held liable for the maintenance of records on the detainees.
Question 14 – Is there a need for time limits for detention at company and battlegroup level on operations? If so, what should the time limits be or is it impractical to specify a standard time limit in the military context?
Time limits are a basic requirement in proving detention is carried out on a basis in law, and an important safeguard against abuse. Detention should only be according to clear laws, with very clear time limits, understood by the detainees and their representatives, and those carrying out the detention. Detainees must be brought before the independent judicial body as quickly as possible (even in times of emergency/armed conflict this can only be delayed by days, not weeks or months). Any detainee held longer than the time limit authorised will have been arbitrarily detained and must be compensated.
Question 17 –Within higher formations on operations, is there sufficient clarity as to the responsibilities of different branches in relation to CPERS?
It should be clear to senior officers that they will be criminally liable when they are aware, or should be aware that abuse may take place under their command and fail to prevent it, or fail to ensure it is prosecuted.
Question 18 –Is adequate provision made for the inspection of detention facilities on operations?
All detention centres run by the UK should be open for inspection. The UK should make it clear that the Optional Protocol to the Convention against Torture (OPCAT) applies to all its operations, meaning that all detention centres are open for inspection by the UN experts as well as its National Preventative Mechanism under that treaty, Her Majesty’s Inspectorate for Prisons (or equivalent). Inspectors should be professional, independent and with the powers to visit without notice and with full cooperation.
Findings of inspections, including those of the International Committee of the Red Cross (ICRC), should be circulated as widely as possible throughout those responsible for detention and the broader mission.
Question 20 – Where deaths, serious injury or injuries suggestive of abuse occur in military custody on operations, is adequate provision made in order to ensure the retention of evidence and prompt investigation in theatre?
Police and judicial authorities seeking to investigate alleged abuse, whether UK military and civilian police, police in the country in which the alleged abuse occurs, UK or national prosecutors or judges, must have unfettered access to any potential crime scene. The local military commander should not be able to prevent their access. Cooperation with such investigations should be required of all members of the armed forces. Interference/destruction of evidence, including forensic evidence, medical records, custody records as well as not telling the truth to investigators, should be made a criminal as well as disciplinary offence and prosecuted. The military commander of the area should be held liable where evidence has been lost in their area of command, as well as those actually responsible for the loss.
It is important that all training includes IHRL, including UK’s obligations under the Convention against Torture, the treatment of detainees, and prosecution of those responsible for ill-treatment, and the concept of command responsibility.
The military police (RMP and other forces) should be fully and functionally independent, including of the chain of command. They should be able to make their own decisions on investigations into crimes without interference of any other military commander. They should be present in military missions from the start, and provided with the necessary language interpretation assistance to allow them to investigate crimes in full. Failure to cooperate with the military police should be a disciplinary offence. Members of forces should be required to immediately inform the military police of suspected crimes.
The military police should have a separate inspectorate, to which those who do not believe a crime has been adequately investigated, including victims and their families, can appeal.
Their training should be revamped to ensure full understanding of international crimes, including command responsibility.
UK military forces, and the RMP, should at all times cooperate with criminal investigations carried out by the domestic criminal justice authorities, who may be the only persons able to immediately discover and secure evidence as well as interview the potential victims and witnesses. This is irrespective as to whether ultimately UK forces would be subject to domestic or military prosecutions.
The new system of military prosecution, headed by the Director of Service Prosecutions (DSP) should be made fully independent of the Attorney General. The Attorney, who is a government minister, should have no power to prevent or halt prosecutions, especially given the potentially embarrassing nature of such cases to the government of which he or she is part.
The DSP should issue a public and reasoned statement on any decision not to prosecute, in all cases of accusations of international crimes.
The UK government in each operation should state whether it will make UK forces subject to prosecution in the domestic courts of the country concerned, bearing in mind the overwhelming objective to ensure public justice for international crimes. This will be impossible where the local criminal justice system is non-existent or is such that it would put anyone transferred to its custody at risk of the death penalty, torture or ill-treatment or] unfair trials. But it should be strongly considered where the UK has been part of building up the domestic justice system and UK forces are exercising policing powers under the domestic justice system.
Every death in detention and every credible accusation of ill-treatment should lead to a speedy and public inquiry, compliant with Articles 2 and 3 of the ECHR. This should in principle take place in the country concerned, be independent (outside the chain of command), and involve the participation of the victims and their families.
We hope that the above will assist the Inquiry and would be pleased to provide further detail on any of the points or to answer questions that may arise from them.
Senior Legal Advisor
Human Rights Watch has expressed concern (see “Cruel Britannia” at https://www.hrw.org/en/reports/2009/11/24/cruel-britannia) about the apparent defence to a charge of torture contained in s.134 Criminal Justice Act 1988 : “It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.” (see http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_1.htm)