Sir Thayne Forbes
Chairman of the Inquiry
The Al-Sweady Public Inquiry
Finlaison House, 15-17 Furnival Street
SUBMISSION OF HUMAN RIGHTS WATCH
Dear Sir Thayne,
We are grateful for the opportunity to make a submission to the Al Sweady Inquiry. 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 six key issues:
1) The application of international human rights law to the military forces’ powers of detention.
It is important that IHRL is understood and applied fully in the future to all detention by UK military forces, particularly the basic prohibition of arbitrary detention and of torture and cruel, inhuman and degrading treatment (ill-treatment).
The United Kingdom is a party to all major treaties that prohibit torture and ill-treatment and require 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).
With respect to the ECHR in particular, the European Court of Human Rights (ECtHR) confirmed in its decisions in the cases of Al-Skeini and Others v UK and Al –Jedda v UK that the ECHR’s provisions were capable of binding the UK outside its national territory where UK troops assumed some of the public powers normally exercised by a sovereign government or exercised authority and control over an individual.
With respect to the CAT, we understand that the UK government’s current position is that the extraterritorial application of each article of the CAT must be considered on its own terms. The UK has not acknowledged it has a duty under CAT to investigate and prosecute crimes of torture by its forces or officials that take place anywhere in the world. As part of its report into the UK’s compliance with the CAT, the United Nations Committee Against Torture (UNCAT) called upon the UK government to publicly acknowledge that the Convention applied to all individuals who are subject to its jurisdiction or control, including to its armed forces, military advisers, and other public servants deployed on operations abroad.
In view of the above, we recommend that the United Kingdom accepts the application of IHRL to actions of its forces at all times and in all places, in particular those relating to the protection of detainees and that prohibit torture and ill-treatment, as set out in the ECHR and CAT.
2) Prisoner Handling
The UK government should accept that IHRL concerning the protection of detainees applies to all Captured Personnel (CPERS). This in particular should mean that
1. All detention, at all times, must be based on clear legal authority to detain.
2. Detainees should be entitled to an immediate and ongoing right to medical care, family visits, and confidential visits from legal representatives.
3. All detainees should be brought promptly before a judicial authority, one that is independent from the chain of command, that should review their detention, and order their release if the grounds for detention are not met. This should normally be the local criminal courts where UK forces are conducting law enforcement operations and holding criminal detainees. The UN Human Rights Committee has stated ‘the principles of legality and the rule of law require that fundamental requirements of a fair trial must be respected during a state of emergency. […] In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant’.
Any person that has been arbitrarily detained for a period of time must be compensated.
Ill-treatment of detainees
We believe that where a detainee wishes to submit a complaint regarding his/her treatment, the detainee should not have to depend on the effectiveness of the chain of command of the local force to have his/her complaints registered and subsequently investigated. Accordingly, it would seem appropriate for the armed forces to have a delegated person with authority in every detention centre to be solely responsible for each detainee. This person should have a separate chain of command to the local force commander and should ensure that detainees are proactively and routinely asked, in a language that they understand, if he/she has any complaints. This person will be held liable for the maintenance of records on the detainees (including log records of provision of food/water, exercise etc.)
Where a Special Investigation Branch of the Royal Military Police (SIB/RMP) investigation occurs, it is important that the SIB interviewer should inform the detainee of the SIB’s independence from the battlegroup and its chain of command.
Inspection of detention centres
In addition, the UK's obligations under the Optional Protocol to the Convention against Torture (OPCAT), require it to ensure that all detention centres are open to inspection by the UN Sub-Committee and by the UK's National Preventive Mechanism.
We note that the Ministry of Defence has chosen not to adopt the recommendation made in the Baha Mousa Report to arrange for external inspection of the UK’s Afghanistan detention facilities by Her Majesty’s Inspector of Prisons or some other appropriate body. The Minister of State for the Armed Forces (Mr Mark Harris) recently outlined the UK government’s view that an internal military inspection by the Provost Marshal, in addition to that conducted by the International Committee of the Red Cross, constituted an adequate fulfilment of its legal obligations. We understand the UK government’s response to indicate a position that it accepts the application of IHL, but not IHRL (i.e. OPCAT), to its overseas detention facilities.
We stress the need for all detention centres run by the UK to be open for inspection by an independent body that publishes its findings. In light of the ECtHR ruling in Al-Skeini v UK, we invite the Inquiry to recommend that the UK make clear that the Optional Protocol to the Convention against Torture applies to all of its operations, therefore allowing for inspection of all of its bases by UN experts as well as Her Majesty’s Chief Inspector of Prisons (or equivalent). Inspectors should be independent and free to visit without notice and with full cooperation of the detaining authorities.
3) Training, questioning and interrogation polices
Suitable role-specific training or thorough guidance should be provided to personnel with precise and clear teachings of IHL and IHRL standards as it applies to their role, particularly if the role is pertaining to the detention and treatment of detainees. Training should be provided regardless of the rank of the military official and applied irrespective of the place or time of military operation. The training should make clear that IHRL applies to the treatment of all detainees.
The Inquiry should address the extent and clarity to which existing UK forces policy for CPERS prohibits without any possible justification all forms of torture and ill treatment, including but not limited to the five techniques (sight deprivation, sleep deprivation, stress positions, deprivation of food and water, and subjection to noise). It should be clear that the use, ordering and complicity in the application of such techniques are a criminal offence.
Distinctions must be made clear to military personnel between what actions/techniques are permissible, and what falls beyond the boundaries of acceptability to which they are being trained to withstand, in case of their own capture by a non-Geneva Conventions compliant enemy. Personnel must leave training fully comprehending the legality of what they have just been trained in and having been reminded to abide by international legal standards, particularly where training involves resisting the five techniques.
‘Maintaining Shock of Capture’
The phrases “maintain the shock of capture” and “prolong the shock of capture” should be avoided in training to ensure that the terms are not misunderstood by unqualified personnel or become a justification for the ill treatment of detainees. Those with existing knowledge of shock of capture should be warned to abstain from the use of such terminology in the future, and (if logistically possible or reasonable) retrained on what constitutes acceptable procedure under the realm of what is currently “maintaining” or “prolonging” the shock of capture. UNCAT does not permit the use of torture in any “exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency.”
4) Health and Medical Policy
Upon detaining CPERs, the UK forces assume responsibility for the welfare of detainees. UK forces should therefore ensure that all detentions fulfil the requirement of access to medical assistance at all times, in a language that detainees understand, and sufficient and appropriate provision of food and water.
The UN Committee on Economic, Social and Cultural Rights has stated, ‘[h]ealth is a fundamental human right indispensable for the exercise of other human rights’.The Third Geneva Convention articulates specific medical and mental health standards and protocols that must be observed by the Detaining Power, including access to free medical services in adequate infirmary, regular medical inspections and the right to be transferred to a civilian hospital for surgery or special treatment.
Only qualified doctors should conduct a medical examination to determine a detainee’s fitness for detention. If a detainee is physically or mentally unwell, interrogators should not question or interrogate the detainee.
5) The independence of the Royal Military Police investigations
As is noted in the List of Issues as of 17 September 2010, the Inquiry’s terms of reference do not require it to carry out a review of the investigations carried out by the Royal Military Police (“RMP”). Nonetheless the following issues have come to light:
The Inquiry will be aware that the ECtHR in the case of Al-Skeini found that an investigation carried out by the RMP into a series of shooting incidents in Iraq did not satisfy the procedural requirements under Article 2 of the ECHR. The RMP should have the autonomy to determine the scope and subject of their investigation, free from control or influence from battlegroup commanders or personnel. Any interference or destruction of evidence or obstruction to investigations should be made a disciplinable offence and should be prosecuted.
Policies should not restrict, stop, or delay RMP investigations. The RMP should have the freedom and autonomy to conduct independent and effective investigations. As delay could impede an investigation, military policy should allow for RMP investigations to imminently commence in incidents where there has been a death, serious injury, or ill treatment of detainee. Should dispensation be applied for and granted, it is only then that investigation into the incident in question should cease. Such policy should be made clear and unambiguous to battlegroup commanders as well as officials as well as RMP commanders.
In this regard failure to report a shooting incident to the RMP as soon as is reasonably possible should also be a disciplinable offence. The RMP should retain a means of enforcing this policy, such as possessing the authority to impose disciplinary measures itself rather than depending on battlegroup commanders to do so.
6) Criminal Liability
The Attorney General has given an undertaking to the Chairman of the Inquiry not to use any evidence provided by a person at the Inquiry against that person for the purposes of bringing proceedings against that person. The Attorney General has, however, retained the right to prosecute an individual where evidence to support a prosecution is given independently of that individual’s evidence. 
In its report on the UK’s compliance with the CAT, UNCAT stated its concern that there had, to date, been no criminal prosecutions for torture or complicity in torture involving State officials, members of the security services or military personnel. UNCAT went on to stress the importance of ensuring that victims of torture are provided with an effective remedy and reparations.
All military personnel should be made aware of their potential for criminal liability, be they in a superior or subordinate position.
Those in a position of command, military and civilian, should be made criminally liable when they are in a position of authority and fail to prevent or prosecute war crimes, crimes against humanity and genocide. The same criminal liability ought to apply where the act in question is torture or ill treatment.
Senior Legal Adviser
Human Rights Watch
Al-Skeini and Others v the United Kingdom, Application no. 55721/07, 
Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session, (6-31 May 2013), paragraph 9.
UN Human Rights Committee, General Comment 29, States of Emergency (article 4), UN Doc. CCPR/C/Rev.1/Add.11 (2001), para. 16. See also, Committee’s concluding observations on Israel (1998) (CCPR/C/79/Add. 93), para. 21: “The Committee stresses, however, that a State party may not depart from the requirement of effective judicial review of detention.”
European Convention on Human Rights Art. 5(5); International Covenant on Civil and Political Rights 1976, Art. 9(5).
Baha Mousa Final Report. Part XVII: Recommendations, Recommendation 44.
Ministry of Defence, Update on Implementing the Recommendations of the Baha Mousa Report,Thursday 27 March 2014
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Art. 3.
UN Committee on Social Economic and Cultural Rights General Comment 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000), para. 1. See also, Third Geneva Convention of 1949, Article 13.
Al-Skeini and Others v the United Kingdom, [171-177]
Attorney General’s Office’s letter to the Chairman of the Inquiry on 10 November 2010, 10 January 2011 and 18 January 2011.
Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session, (6-31 May 2013), paragraph 16.
International Criminal Court Act 2001, s.65.I