[*** Asterisks denote that part of the
written evidence that has not been reported because it is covered
by the House of Commons' sub judice resolution.]
Submission from REDRESS
SUMMARY OF
SUBMISSIONS
— The FCO's Human Rights Annual Report
2008 does not deal satisfactorily with the UK's anti-torture obligations
in the context of its counter-terrorism policies. — The
consistent allegations of UK complicity in "extraordinary
renditions" over the past several years, including specific
aspects concerning Diego Garcia, as well as the role of UK agents
in interrogations and other related matters, remain unanswered
despite numerous detailed inquiries by a number of parliamentary
committees; an independent public inquiry is now needed. — Most
if not all of these serious concerns, including direct and indirect
UK complicity in torture, straddle the mandates of several parliamentary
committees, and along with what can broadly be described as a
stalemate between Parliament and the Executive, are added reasons
for an independent public inquiry.
— Specific concerns relating to transfers
of prisoners in Iraq and Afghanistan give rise to related concerns
that the UK is breaching its anti-torture obligations, which too
need to be fully and impartially investigated.
INTRODUCTION
1. This submission is put forward in response
to the Foreign Affairs Committee's (FAC) call for evidence in
respect of its new inquiry into human rights.
2. The Redress Trust (REDRESS) is an international
non-governmental organisation with a mandate to assist survivors
of torture to access adequate and effective remedies and reparation
for their suffering. Since its establishment in December 1992,
it has accumulated a wide expertise on the rights of victims of
torture both within the United Kingdom and internationally.[115]
3. The submission focuses on counter-terrorism
and human rights (specifically the prohibition against torture)
as dealt with in the FCO's Human Rights Annual Report 2008 (hereafter
the Annual Report), as well as the responsibilities of the FCO
for securing the human rights of British citizens and others overseas.
4. In December 2008 REDRESS published a
Report The United Kingdom, Torture and Terrorism: Where the
Problems Lie[116]
(hereafter the REDRESS Report) and a hardcopy is furnished herewith.
The REDRESS Report deals in detail with three main areas: the
UK and "extraordinary renditions"; victims (UK nationals
and former non-national UK residents) of the "war on terror";
deportations and diplomatic assurances. References are made to
aspects of the REDRESS Report in this submission.
5. In the Annual Report's section on Counter-terrorism
and human rights[117]
the FCO speaks of "tensions and challenges" stating
that although its "human rights and counter-terrorism agendas
[are] generally mutually reinforcing" one area where there
are "challenges and difficult decisions" is "the
use of intelligence possibly derived through torture [by other
countries which] presents a very real dilemma." [118]
6. The "challenges" are not restricted
to the use of such information. What is also of grave concern
is the active or passive collusion of the UK with those countries
in obtaining such information to begin with. The active aspect
involves the role played by UK agents in collaborating with overseas
agencies who use torture both generally and in specific cases,
while the passive element involves the failure of the UK to protect
UK nationals and others with links to the UK who have faced the
risk of torture.
7. Regarding "extraordinary rendition",
including Diego Garcia (DG), the Annual Report repeats what it
and the Government has stated over the years: it has not and will
not "approve a policy of facilitating the transfer of individuals
through the UK to places where there are substantial grounds to
believe they would face a real risk of torture",[119]
and that other than the two admitted incidents of renditions through
Diego Garcia the UK accepts US assurances that no other use of
DG, including within its territorial waters, has been made to
detain and/or interrogate detainees.
8. The REDRESS Report reiterates the arguments
for a proper inquiry into all relevant aspects of rendition flights
which could be linked to the UK;[120]
this and additional concerns regarding Diega Garcia are also dealt
with below.[121]
9. Many of the issues have been the subject
of inquiries by the Joint Committee on Human Rights (JCHR) and
the Intelligence and Security Committee (ISC), and of course the
FAC. The Defence Committee too has been involved. While this is
understandable given the committees' different mandates it is
submitted that the division into human rights, security matters
and foreign affairs has to date failed to bring the necessary
pressure to bare on the Executive to comprehensively answer the
legitimate public concerns which have been repeatedly raised.
This is a further reason for a more all-embracing mechanism in
the form of an independent inquiry.
THE CASE
OF BINYAM
MOHAMED
10. ***
11. ***
12. ***
13. ***
14. Another issue of concern is the UK's
belated efforts to press the US to release and return *** former
resident non-nationals, as well as UK nationals, from Guantanamo
Bay. The Annual Report[122]
glosses over the fact that the Government fought hard in the courts
to avoid taking responsibility for these men. The REDRESS Report
details the chronology and litigation involving both sets of detainees.[123]
Concern over the Government's delayed action is not merely one
of regret for what happened under Mr Miliband's predecessors,
but because of the lack of a UK policy to protect its nationals
and others linked to the UK who have no other state to which they
can look for protection when they face a real risk of torture.
15. Even once Guantanamo Bay is closed this
will not end the need for the UK's intervention with foreign powers
when such persons are detained as terrorist suspects or otherwise,
and face the real risk of torture. There are already numerous
other cases where the UK has been seen to be at best dilatory
in its intervention and at worst complicit.[124]
What is required is a clear policy statement from Mr Miliband
that the UK will not accept the torture of its nationals abroad,
nor torture of those non-nationals who can legitimately claim
UK protection; that if the real risk of torture occurs the UK
will take timely, vigorous and effective steps for it to end;
that in all cases of torture of such persons it will espouse their
claims for reparations.
16. In the absence of such a policy and
effective action, there remains a serious deficiency in the UK's
anti-torture programme in the one area where it ought to be most
obvious that something can and should be done: the protection
of UK nationals and the non-nationals described.
ALLEGATIONS OF
UK COMPLICITY IN
TORTURE
17. *** the REDRESS Report also refers to
other national and non-national former residents detained at Guantanamo
Bay, who have alleged the UK was complicit in their rendering
and/or their subsequent torture and/or ill-treatment. In fact
all of them allege such UK involvement in one way or another,
either after their detention and in the time leading up to their
rendition or afterwards, or both.
18. Recent reports have referred to cases other
than former Guantanamo Bay detainees. Thus a newspaper has said
that "senior officials in both MI5 and MI6 have reviewed
their files and fear that 15 similar cases *** could also lead
to police investigations."[125]
An even more recent campaigning group's report details 29 cases
altogether, including one prior to 11 September 2001, 13 former
Guantanamo Bay detainees, and others in Pakistan, Jordan, the
United Arab Emirates, Syria, Egypt and Kenya.[126]
19. The FCO may say that as these allegations
concern the security services they do not fall within the FAC's
mandate but that of the ISC; it may also argue that they should
be raised with the Attorney General or the police; in the House
of Commons debate on 5 February 2009 referred to above[127]
the chair of the ISC said that "the Investigatory Powers
Tribunal... is the only body with the legal power to investigate
fully any allegation of misconduct by the UK agencies."[128]
However, while the responsibilities may straddle different ministries,
parliamentary committees and other bodies, these self-evidently
include the FCO.
20. The torture and other ill-treatment
which UK nationals and non-national UK residents detained as terrorist
suspects have suffered illustrates the ineffectiveness of the
UK Government's approach to date in protecting these detainees
from multiple violations of their rights; there are also serious
questions to be answered about the UK's role in the processes
concerned.
21. Information has been revealed as a result
of various court cases brought in the UK as well as through parliamentary
inquiries. There is prima facie evidence that the UK has
not fulfilled its obligations under the UN Torture Convention
in numerous respects including failure to prevent torture and
other prohibited ill-treatment but also a subsequent failure to
properly investigate the allegations.
22. What is urgently required is a full,
independent and impartial public inquiry into all aspects of the
treatment of these UK nationals and non-national residents, including
the role of the UK authorities at all relevant times. Where the
UK is found to have been at fault reparations must be made and
those responsible must be held accountable. Mr Miliband should
be asked how any other (and necessarily fragmented) approach can
continue to be justified.
EXTRAORDINARY RENDITION
(INCLUDING THE
POSSIBLE ROLE
OF DIEGO
GARCIA)
23. It is submitted that "extraordinary
rendition" cannot be separated from the UK's alleged complicity
in torture of terrorist-suspects, and the concerns are inextricably
linked. The Annual Report itself acknowledges that "extraordinary
renditions" give "rise to increase risk of torture or
cruel, inhuman or degrading treatment."[129]
24. The REDRESS Report chronicles many of the
attempts of the JCHR, the ISC, the FAC and other responsible bodies[130]
to interact with the Government on the issue of "extraordinary
rendition", including Diego Garcia (DG). However, despite
the "drip, drip" of disclosures over the past eight
or so years the Government's position remains unaltered in all
essentials, and it is submitted that there is in reality a stalemate
between Parliament and the Executive as to what is the right thing
to do.
25. In the circumstances it is submitted
that the FAC should add its voice to the call for an independent
and impartial judicial inquiry into all aspects concerning the
UK's involvement in the US programme.
26. Concerning the two instances of admitted
rendition through DG, a specific unanswered issue is what precisely
happened to the two men who were rendered through DG and have
now been returned to their countries of nationality.[131]
If the US is not prepared to divulge this information to the UK
and/or to authorise the UK to disclose what it already knows from
the US, then the FCO should interview the men itself for full
details of how and from where they were rendered, what happened
to them at Guantanamo Bay, and what has happened to them on their
return to their countries of nationality.
27. Although the UK cannot formally espouse
the two individual's cases, the fact that their human rights were
violated on UK territory by a foreign state is sufficient for
the UK to take up their cases in a humanitarian capacity. The
FCO should be asked whether it is prepared to follow this up,
and if not why not.
TRANSFER OF
PRISONERS IN
IRAQ AND
AFGHANISTAN
28. REDRESS recently submitted its views
to the FAC on the handing over of prisoners in Afghanistan in
connection with the FAC's inquiry into foreign policy aspects
of the UK's relations with Afghanistan.[132]
That submission referred, inter alia, to the assertion in the
FCO's Human Rights Annual Report 2007 that the UK is "confident
that the human rights of detainees handed over by UK forces are
not breached and they have access to sufficient food and clean
water."[133]
The FCO should be asked whether there is any significance in the
fact that in the current Annual Report there is no such confident
assertion.[134]
29. Further, and again in regard to its inquiry
into Afghanistan, the FAC very recently heard evidence of torture
and renditions and the following exchange is recorded as uncorrected
oral evidence:
"Q88 Ms Stuart: What I wanted to
pursue a little more is the fact that we have evidence that Afghanistan
was used for extraordinary rendition. We know there are memorandums
of agreement between the allied forces and the American Government.
Currently, the understanding is that anybody captured will be
handed over to the Afghan authorities. Can we be certain that
they will not be tortured?
Elizabeth Winter: I do not think we can
be, no. Experience has shown that we cannot be sure. However much
one might like to think that negotiations and keeping a watching
brief would prevent it, I think it would be much better not to
hand them over, to be honest."[135]
30. In regard to "extraordinary renditions"
similar misgivings were recorded:
"Q91 Ms Stuart: If we say we cannot
be sure about torture, can we be sure it is no longer a base for
extraordinary rendition?
Elizabeth Winter: I could not be sure
about that. I wouldn't know. Again I can try to find out from
people who might, and what the rumours are. Whether I could get
you any actual information I don't know. My guess is that everybody,
including the British Government, is going to be fairly careful
now about what they do and try to avoid it because they do not
want bad publicity, to put it at its crudest."[136]
31. The FAC will be aware of the debate
in the House of Commons on 26 February 2009[137]
in which Defence Secretary John Hutton revealed, amongst other
important details, the transfer to Afghanistan by the US of two
persons captured by the UK in Iraq who were handed over to the
US there. Concerns remain as to what has happened to the two men,
as well as others mentioned in the debate. For example, concerning
Afghanistan, Mr Hutton said:
"As of 31 December 2008, our database holds
the capture details of 479 individuals, including 254 who were
subsequently transferred to the authority of the Government of
Afghanistan, 217 who were released, and eight who died as a result
of injuries sustained on the battlefield."[138]
34. Cogniscent that the debate involved
the Secretary of State for Defence and not Foreign Affairs (and
which once more illustrates the straddling of responsibilities
referred to earlier) a number of immediate questions arise: what
has happened to the 29 who were not released or had died; how
long have these 29 men been in custody; as to the eight who died,
was it reasonable for them to be handed over when they must have
had serious injuries.
35. The same debate also once again raised
many of the fundamental concerns involving the US-UK relationship
when it comes to counter-terrorism and the attitude of the previous
US Administration (in particular) to torture compared to the UK's
acceptance of its international and domestic human rights obligations.
Release on 16 April 2009 in the US of four "torture memos"[139]
has added more weight to the reasons behind this long-running
problem. All of these concerns apply to Iraq and Afghanistan as
well as the earlier issues covered in this submission.
RECOMMENDATIONS
36. The FAC should:
— call for a comprehensive, independent,
judicial inquiry into all allegations of UK complicity in torture
and/or other ill-treatment arising out of counter-terrorism, including
all aspects of UK involvement in the US' "extraordinary renditions"
programme;
— pending such an inquiry, press the Government
for specific details of what it is doing about the UK nationals
and non-national former residents who have alleged torture and/or
other ill-treatment abroad, including all the former Guantanamo
bay detainees now back in the UK but not restricted to these;
— seek full details of the two men
rendered through Diego Garcia;
— ask the Government what it is doing
regarding reparations for all those who suffered abuse as a result
of UK complicity; and
— press for a clearer, more effective,
consistent and pro-active anti-torture policy concerning the detention
abroad of UK and UK-linked terrorist suspects.
All of which is respectfully submitted.
24 April 2009
115 See generally www.redress.org Back
116
http://www.redress.org/documents/Where%20the%20ProblemsLie%2010%20Dec%2008A4.pdf Back
117
Pgs 14-17. See also pg 9 under Counter-terrorism. Back
118
Pg 15. Back
119
Pgs 16-17. Back
120
Pgs 13-24. Back
121
Paras 23-27. Back
122
Pg 16: "In 2004 and 2005 the UK was the first government
to secure the release of all its nationals detained in Guantanamo
Bay. We have since gone further and requested the release of all
those held there who were previously legally resident in the UK." Back
123
Pgs 33-41. Back
124
See below para 18. Back
125
Duncan Gardham and Con Coughlin, Daily telegraph 28 March
2009 available at http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5063053/Torture-inquiry-reveals-15-new-cases.html Back
126
Cageprisoners report, April 2009 Fabricating Terrorism II :
British Complicity in Renditions and Torture available at
http://www.cageprisoners.com/ Back
127
Footnote 10. Back
128
Dr Kim Howells MP at Column 997. Back
129
Pg 17. Back
130
Including, for example, the All Party Parliamentary Group on Extraordinary
Rendition. Back
131
REDRESS was informed of this in a letter from the FCO dated 6
January 2009. Back
132
On 23 January 2009. Back
133
Para 7 of the REDRES submission, referring to pg 125 of the 2007
Annual Report. Back
134
See pg 122 of the current Annual Report. Other aspects of the
current Annual Report on detentions in Afghanistan at this page
are very similar to those in the 2007 Annual Report, and therefore
the difference between the two should be queried. Back
135
Uncorrected transcript of oral evidence 25 March 2009 available
at http://www.publications.parliament.uk/pa/cm200809/cmselect/cmfaff/uc302-ii/uc30202.htm Back
136
Ibid. Back
137
Hansard 26 February 2009: Column 394 Records of Detention
(Review Conclusions) available http://www.publications .parliament.uk/pa/cm200809/cmhansrd/cm090226/debtext/90226-0008.htm09022651000004 Back
138
Column 396. Back
139
Available at http://www.aclu.org/safefree/general/olc_memos.html Back
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