Joint committee’s damning report on UK complicity with torture

August 4, 2009 at 2:23 pm Leave a comment

whitehall
A committee of MPs and peers has called for a an independent inquiry into the “numerous allegations” that the UK was complicit in torture.

The Joint Committee on Human Rights said there is now no other way to restore public confidence in the intelligence services.

In a report published today, they said the British government “appears to have been determined to avoid parliamentary scrutiny on this issue.”

“In order to restore public confidence and to improve compliance with our human rights obligations, the Government must take measures to improve the system of accountability for the intelligence and security services. ”

The committee made the following recommendations:

– Aim to make the Intelligence and Security Committee a proper parliamentary select committee, with independent advice, and reporting to Parliament not the Prime Minister.

– Publish all versions of guidance given to intelligence and security service personnel about detaining and interviewing individuals overseas, to allow others to ensure that it complies with the UK’s human rights obligations.

– Make public all relevant legal opinions provided to ministers.

– Set up an independent inquiry into the allegations about the UK’s complicity in torture. The inquiry should make recommendations to improve the Government’s accountability for the security and intelligence services.

Andrew Dismore MP, Chair of the Committee, said:

“The allegations we have heard about UK complicity in torture are extremely serious.

“It is unacceptable both for Ministers to refuse to answer policy questions about the Security Services, and for the Director General of MI5 to answer questions from the press but not from a Parliamentary committee.

“Establishing the ISC as a Parliamentary committee would establish ministerial accountability to Parliament.

“As to what may have happened in the past, general assertions of non-complicity are no longer an adequate response to the many detailed allegations.

“An independent inquiry is the only way to get to the bottom of these stories, clear the air and make recommendations for the future conduct and management of the security services.

“The recent allegations should be a wake-up call to Ministers that the current arrangements are not satisfactory.

“We look to the Government to respond positively to our recommendations and not to continue to hide behind their wall of secrecy.”

Click here to read the report.

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Conclusions and Recommendations

1. There is […] no room for doubt, in our view, that complicity in torture would be a direct breach of the UK’s international human rights obligations, under UNCAT, under customary international law, and according to the general principles of State Responsibility for internationally wrongful acts. (Paragraph 27)

2. We […] conclude that complicity has different meanings depending on whether the context is individual criminal responsibility or State responsibility:

* for the purposes of individual criminal responsibility for complicity in torture, “complicity” requires proof of three elements: (1) knowledge that torture is taking place, (2) a direct contribution by way of assistance that (3) has a substantial effect on the perpetration of the crime;

* for the purposes of State responsibility for complicity in torture, however, “complicity” means simply one State giving assistance to another State in the commission of torture, or acquiescing in such torture, in the knowledge, including constructive knowledge, of the circumstances of the torture which is or has been taking place. (Paragraph 35)

3. We agree with Professor Sands’s view, that if the Government engaged in an arrangement with a country that was known to torture in a widespread way and turned a blind eye to what was going on, systematically receiving and/or relying on the information but not physically participating in the torture, that might well cross the line into complicity. (Paragraph 41)

4. Systematic, regular receipt of information obtained under torture is in our view capable of amounting to “aid or assistance” in maintaining the situation created by other States’ serious breaches of the peremptory norm prohibiting torture. We therefore consider that, if the UK is demonstrated to have a general practice of passively receiving intelligence information which has or may have been obtained under torture, that practice is likely to be in breach of the UK’s international law obligation not to render aid or assistance to other States which are in serious breach of their obligation not to torture. (Paragraph 42)

5. It follows from the above that, in our view, the following situations would all amount to complicity in torture, for which the State would be responsible, if the relevant facts were proved:

* A request to a foreign intelligence service, known for its systemic use of torture, to detain and question a terrorism suspect.
* The provision of information to such a foreign intelligence service enabling them to apprehend a terrorism suspect.
* The provision of questions to such a foreign intelligence service to be put to a detainee who has been, is being, or is likely to be tortured.
* The sending of interrogators to question a detainee who is known to have been tortured by those detaining and interrogating them.
* The presence of intelligence personnel at an interview with a detainee being held in a place where he is, or might be, being tortured.
* The systematic receipt of information known or thought likely to have been obtained from detainees subjected to torture. (Paragraph 43)

6. We note that the Foreign Affairs Committee was able to question the Foreign Secretary on a range of issues associated with torture and shed some light on matters we have only been able to explore in writing, as part of its wider inquiry into international human rights issues. This calls into question the reasons why the Foreign Secretary (and the Home Secretary) should refuse to give oral evidence to us. (Paragraph 52)

7. We fully accept that intelligence co-operation is both necessary and legitimate in countering terrorism, and that a degree of state secrecy is justifiable in this area. However, there must be mechanisms for ensuring accountability for such co-operation. The allegations we have heard about possible UK complicity in torture in Pakistan, the evidence which has emerged during the legal proceedings brought by Binyam Mohamed and the allegations by Craig Murray that the UK knowingly received evidence derived from torture are all extremely serious matters for which Ministers are ultimately accountable. Our experience over the last year is that Ministers are determined to avoid parliamentary scrutiny and accountability on these matters, refusing requests to give oral evidence; providing a standard answer to some of our written questions, which fails to address the issues; and ignoring other questions entirely. Ministers should not be able to act in this way. The fact that they can do so confirms that the system for ministerial accountability for security and intelligence matters is woefully deficient. (Paragraph 56)

8. We urge Members of the House of Commons regularly to take the opportunity to debate the membership of the ISC, to help ensure that the Committee is subject to frequent scrutiny. (Paragraph 59)

9. The missing element, which the ISC has failed to provide, is proper ministerial accountability to Parliament for the activities of the Security Services. In our view, this can be achieved without comprising individual operations if the political will exists to provide more detailed information to Parliament about the policy framework, expenditure and activities of the relevant agencies. The current situation, in which Ministers refuse to answer general questions about the Security Services, and the Director General of MI5 will answer questions from the press but not from parliamentarians, is simply unacceptable. (Paragraph 65)

10. A good first step would be for the Government to propose to establish the ISC as a proper parliamentary committee, with an independent secretariat (including independent legal advice), which would establish ministerial accountability to Parliament in this area at a stroke. The recent allegations about complicity in torture should be a wake up call to Ministers that the current arrangements are not satisfactory. We look to the Government to respond positively to this suggestion and not to continue to hide behind a wall of secrecy. (Paragraph 66)

11. We are concerned that the narrow remit of the Investigatory Powers Tribunal precludes investigation of individual complaints, where complainants are reluctant through fear for their safety or otherwise to approach the Tribunal directly, as well as of systemic issues, where a series of complaints suggests that there are wider problems with the policy or operations of the security services. (Paragraph 70)

12. The ISC’s letter on alleged complicity in torture has yet to be published, over four months after it was submitted to the Prime Minister. We urge the Prime Minister to make its contents public, with the minimum of redaction, as soon as possible. (Paragraph 73)

13. We welcome the Government’s decision to consolidate and publish guidance to security services’ personnel on work in detention and interrogation. We also welcome the Prime Minister’s statement that redaction prior to publication will be kept to a minimum. (Paragraph 75)

14. We recommend that the Government clarify whether the Government or the ISC will be revising existing guidance as part of the consolidation and review process. We also recommend that the Government should release earlier versions of the guidance, subject to any necessary redaction. (Paragraph 76)

15. We welcome the appointment of Sir Peter Gibson to monitor compliance with Government guidance to security services’ personnel on detention and interrogation issues. We call on Sir Peter to ensure that he publishes as much information as possible on his work in this area in his annual reports, which we look forward to scrutinising. (Paragraph 77)

16. We recommend that the Government publish immediately all versions of the instructions/guidance given to intelligence officers and security service personnel concerning the standard to be applied in relation to the detention and interviewing of detainees overseas, including the current draft being considered by the Intelligence and Security Committee, to ensure that it fully and correctly reflects the UK’s human rights obligations. (Paragraph 87)

17. We do not accept, in this instance, that it is “in the interests of good governance” for the Government to refuse to waive its legal professional privilege by publishing the relevant legal advice. On the contrary, we consider that good governance demands it and that the Government’s invocation of legal professional privilege is another disappointing example of resort to state secrecy to prevent proper parliamentary and public scrutiny of an issue of great public concern. (Paragraph 93)

18. We call on the Government to follow the American example by immediately putting into the public domain all relevant legal opinions provided to ministers. These should include any opinions concerning the relevant legal standards on torture and complicity and the implications of those legal standards for the Government’s policies on the use of information which may have been obtained by torture and the sharing of information with foreign intelligence services. They should also include any relevant opinions concerning Article 4 UNCAT and the general principles of state responsibility for complicity. (Paragraph 96)

19. In view of the large number of unanswered questions, we conclude that there is now no other way to restore public confidence in the intelligence services than by setting up an independent inquiry into the numerous allegations about the UK’s complicity in torture. (Paragraph 99)

20. We recommend that the independent inquiry which is set up to investigate allegations of UK complicity in torture should also be required to make recommendations about improving the accountability of the security and intelligence services, and removing any scope for impunity, having regard to the recommendations recently made on this subject by bodies such as the UN Special Rapporteur, the Eminent Jurists Panel of the International Commission of Jurists, and the Council of Europe. (Paragraph 101)

21. We also recommend that any inquiry should also look into whether there was any connection between the UK Government’s controversial view of the limited territorial scope of application of UNCAT on the one hand and the adequacy of its guidance to its intelligence and security operatives on the other. (Paragraph 102)

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