Examination of Witnesses (Question Numbers
40-55)
KATE ALLEN,
CLIVE STAFFORD
SMITH OBE AND
BENJAMIN WARD
10 JUNE 2009
Q40 Mr. Hamilton: ***
Clive Stafford Smith: ***
Q41 Mr. Hamilton: ***
Clive Stafford Smith: ***
Q42 Mr. Hamilton: ***
Clive Stafford Smith: ***
Q43 Mr. Hamilton: ***
Clive Stafford Smith: ***
Mr. Hamilton: ***
Clive Stafford Smith: ***
Q44 Mr. Hamilton: ***
Clive Stafford Smith: ***
Mr. Hamilton: ***
Clive Stafford Smith: ***
Q45 Mr. Hamilton: ***
Clive Stafford Smith: ***
Mr. Hamilton: ***
Q46 Chairman: ***
Clive Stafford Smith: ***
Q47 Chairman: ***
Clive Stafford Smith: ***
Q48 Chairman: That is helpful.
I will take up the question that John was going to ask, because
he had to leave. Can you say something about the detainees and
the transfer of prisoners in Iraq and Afghanistan? The Government
have now acknowledged that they made an inaccurate estimate of
the numbers of prisoners—it was overestimated—and
had incomplete records with regard to the situation in Iraq. How
do you assess the adequacy of the review that they carried out?
Do we have the accurate information now?
Clive Stafford Smith: May I respond
to that? There are two things about it. The first is the one that
I alluded to before. Let us just accept the two people whom they
mentioned, before we get on to whether that too is accurate. It
is just unfathomable to me that our Government can say that we
did indeed render people, which we all agree is not a legal act,
and that we are not willing to say who those two people are so
that our lawyers can help reunite them with their legal rights.
We cannot say that we oppose the American process of extrajudicial
detention of these people, which, according to the Government,
is still ongoing in these guys' cases, and yet we are not willing
to identify those people. I just don't understand that.
Q49 Chairman: And you know the
names of these people?
Clive Stafford Smith: No, I don't.
I want to, because if I do, we will represent them, and we will
get them—
Chairman: That is the point you were
referring to earlier.
Clive Stafford Smith: That is
important. The second thing is whether the Government have been
totally forthright. These are questions that ultimately only the
Government can answer—and whether their review has been
enough. The letter that the Minister wrote is very carefully written,
and it is very carefully written to exclude, for example, Task
Force 36, where the British were working with the Americans on
the big-name people—Al-Zarqawi and people like that. The
people who have been reviewed and admitted publicly are by definition
the less significant people, because those who were being pursued
by this task force, where the British were working hand in glove
with the Americans, are specifically excluded from that letter.
It is important to follow up on that, because we are responsible
for those people. Taking it a step further, you will be familiar
with the gag order that was applied to Mr. Griffin when he started
talking about these materials. You will know that he was in Iraq
only from 2005 onward—after the 2004 renditions that are
discussed in the Minister's letter. To the extent that Mr. Griffin
was talking about renditions that Britain was involved in that
he knows about, those happened after the two that were dealt with
in the Minister's letter.
Q50 Chairman: Are you sure he
is not referring to things that he knew about that had happened
before?
Clive Stafford Smith: We interviewed
him before the gag rule was put on him, and I am not sure quite
where we stand on that whole process; that is an issue that needs
to be explored properly. What I can say—again as I mentioned
briefly before—is that we have identified at least one other
person. The facts are a bit different. He was not originally in
British custody; he was turned over to the British, the British
carried him around for a while and then turned him back over to
the Americans, and the guy was then rendered—and that is
certainly not included in the British report.
Q51 Chairman: And you know the
name of that one?
Clive Stafford Smith: I know the
name. I would tell you if I could remember how to spell it properly.
We will give you a report on it, if you would like one. But we
have interviewed that chap. He is in Yemen. I think that there
is other information out there.
Q52 Chairman: Finally, I shall
ask about Iraq, and then I shall bring Ken in on Afghanistan.
We have also transferred prisoners in Iraq to the Iraqi authorities.
How confident can we be that the assurances given about the treatment
of those prisoners can be relied upon? Are we content that the
UK has discharged its obligations under the European Convention
on Human Rights in Iraq?
Benjamin Ward: I should say that
Human Rights Watch is part of a group of non-governmental organisations
that has intervened in the European Court of Human Rights—in
the Al-Saadoon case, in which the court ordered the UK not to
transfer the man in question to the Iraqi High Tribunal until
it had had a chance to review his case. That case is extremely
worrying; there was clearly jurisdiction, by virtue of the control
that the UK exercised over that particular individual and other
detainees in Iraq, which was accepted by the House of Lords in
the Al-Jedda case. The UN Committee Against Torture has said that
the Convention Against Torture applies to people in UK custody
in Iraq. The question is whether there is a risk prior to transfer.
There clearly have been risks in some cases, and we do not accept
that the agreement of a memorandum of understanding disposes of
that risk.
Kate Allen: I think that it is
quite shameful to see the UK having this tendency to limit the
application of its international human rights obligations in this
way. That attempt to limit is appalling.
Clive Stafford Smith: I know we
have overrun, but very briefly, I was very interested to read
in the MOUs you had sent me—I had not read them before,
quite frankly—that in the Iraq one there is no prohibition
against turning people over who will face the death penalty, which
there was in the Afghan one. That is clearly in violation of the
European law, is it not? It seems to me that it would be a good
idea to at least consider that there should be an absolute form
for MOUs, used in every case, which would include at least those
aspects.
Q53 Mr. Purchase: My question
is to Amnesty. In your written submission you recommended that
the Government should press the US to be more transparent about
its detentions in Afghanistan. In so far as this response is concerned,
and your specific concerns, what details should the US provide,
if they were to come forward on this?
Kate Allen: For a long time, we
have all had major concerns about what is happening at Bagram,
at the air base there. What we would like to have is the information
about who is being held, where they are being held and how long
they have been held for. This continues at the moment, and we
need to see it brought to an end.
Clive Stafford Smith: May I give
you a brief example of that? I had an e-mail from an American
captain, who was in the Waghez district of Afghanistan a while
back—I met him in Guantanamo—and he was convinced
that these two chaps in Bagram were innocent. He set about trying
to show it and he asked us to help him. We did it all above board—we
told the US military—and he was threatened with court martial
for that. They are not allowing these people any legal rights,
and we are doing essentially what happened over in Guantanamo,
but there are many, many more prisoners in Bagram, who are far
worse off than in Guantanamo.
Q54 Mr. Purchase: If you are correct,
Ms Allen, there can be little confidence in your mind that detainees
transferred from UK custody to Afghan authorities are not mistreated.
I should like to hear whatever evidence you have, but given that
it is all on the basis of a memorandum of understanding, is the
MOU an appropriate basis on which to make the transfers? Should
we be seeking more safeguards? Should we not even make the transfers?
Clive Stafford Smith: We can do
some very positive things. I wrote to the Defence Minister about
it, offering the proposal that we made to the US as well, which
is that we would help to provide legal representation to those
people. There is a long story behind this about the inadequacies
of the Afghani legal system and, given everything we know, I do
not know why we would not want—if we are to win a few hearts
and minds in Afghanistan—to take some affirmative, positive
steps to make things better, as opposed to always merely whining
about what the Government do. I think that could be tremendously
helpful.
Q55 Mr. Purchase: That leads me
nicely to my final point. Following the handing over, what obligations
do you think the UK retains when detainees have been transferred
to authorities of another state where an MOU is in place?
Benjamin Ward: They have to make
a risk assessment before the transfer. If there is a real risk,
they are responsible for any treatment that the person is subject
to after the transfer. They would then be obliged to take steps
to remedy that, such as providing compensation and carrying out
an investigation. Obviously, if a person has been tortured, you
cannot untorture them.
Kate Allen: The legal obligation
still rests with the UK.
Clive Stafford Smith: You cannot
assess whether you have got it right if you do not find out what
happened to the guys. I cannot answer this quite frankly, but
I doubt very much that our Government know what happened to all
the people who were turned over.
Chairman: Thank you all for coming. I
remind you of what I said at the beginning. We will try to get
as much into the public domain as we can, and if necessary we
will be communicating with you on this matter. I now intend to
ask everyone to leave. We will have a private five minutes for
members of the Committee, after which I shall invite the witnesses
and the public in for our next session.
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