4 Transfers of detainees
86. At a joint evidence session held with the
Defence Committee in October 2008, we questioned the Foreign Secretary
and the then Defence Secretary on issues relating to transfers
of prisoners from UK custody in Iraq and Afghanistan, and the
possibility that transferred prisoners may have subsequently suffered
ill treatment.[166]
In our current inquiry we have returned to some of the issues
raised at that hearing.
The Government's review of records
of detention
87. The then Secretary of State for Defence,
Rt Hon John Hutton MP, made a Statement to the House on 26 February
2009 giving the results of a Ministry of Defence review of records
of detention resulting from security operations carried out by
UK armed forces in Iraq and Afghanistan.[167]
The review had been prompted by the allegations made by Ben Griffin,
a former member of UK special forces. The website of the 'Stop
the War Coalition' reports Mr Griffin as stating that:
Individuals detained by British soldiers [
]
have ended up in Guantánamo Bay Detention Camp, Bagram
Theatre Internment Facility, Balad Special Forces Base, Camp Nama
BIAP and Abu Ghraib Prison. [
] I have no doubt in my mind
that non-combatants I personally detained were handed over to
the Americans and subsequently tortured.[168]
In February 2009 Mr Griffin was served with a High
Court order preventing him from repeating these allegations or
making any fresh allegations of a similar nature arising from
his experience of UK special forces' operations.[169]
88. The Defence Secretary's statement on 26 February
detailed that of 479 individuals detained by the UK between July
2006 and December 2008, 254 were subsequently transferred to Afghan
authorities, 217 were released and 8 had died. The statement asserts
that there were "a further seven individuals detained by
UK forces between 2001 and April 2006", but it does not state
what became of them.[170]
The Foreign Secretary gave us an updated set of figures when he
gave oral evidence to us in June 2009, but later revised these
in writing to clarify that there had been 549 detentions in the
period between July 2006 and 16 June 2009. Of these "257
have been released, 283 transferred to the Afghans, 8 died, and
1 is receiving medical treatment".[171]
89. In his February 2009 statement, the Defence
Secretary noted that previous estimates of the number of prisoners
held by the UK in Iraq had been considerably overstated, and he
apologised for this and other inaccuracies in information given
to the House. In addition, he admitted that one category of detainee
was not included in the review figure:
In areas outside multi-national division South East,
UK forces have undertaken operations to capture individuals who
were subsequently detained by the US. These individuals do not
feature in the data I set out above, and I do not intend to provide
further details on these detentions today.[172]
We remain unclear as to what has been the fate of
detainees captured in this way. Reprieve highlighted this issue
in a press release in February 2009, stating that it was "deeply
concerned about the inadequate scope of the MOD review [
]
specifically that it does not include the participation of UK
personnel in joint operations under the overall command of the
US".[173] In his
evidence to us Clive Stafford Smith questioned
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 peopleAl-Zarqawi
and people like that. The people who have been reviewed and admitted
publicly are by definition the less significant people, [
]
It is important to follow up on that, because we are responsible
for those people. [174]
90. We conclude that it is a
matter of concern that the Government has not provided details
of the fate of individuals detained by US forces in Iraq as a
result of operations by UK forces, or those captured by UK forces
and detained by US forces. We recommend that, in its response
to this Report, the Government informs us of the number of such
detainees, relevant details of the circumstances of their capture
and the degree of involvement of UK forces, and any assurances
it has received from the US authorities about their treatment
and whereabouts, on an individual basis. We further recommend
that the Government, in its response, provides us with a full
statement of its record-keeping practice in respect of persons
captured by UK forces in Iraq and Afghanistan, whether or not
UK forces make the eventual detention.
Transfers in Iraq
TRANSFERS TO IRAQI AUTHORITIES
91. In 2004 the UK agreed a Memorandum of Understanding
(MoU) with the Iraqi Government in respect of detainees captured
by UK forces and their subsequent transfer to Iraqi custody.[175]
The last two prisoners held by the UK in Iraq (Faisal Attiyah
Nassar Al-Saadoon and Khalaf Hussain Mufdhi) were transferred
to Iraqi custody on 31 December 2008. The FCO states that "they
had been detained on behalf of the Iraqi authorities" and
that "UNSCR [UN Security Council Resolution] 1790, which
expired on 31 December, had previously provided the legal basis
for this detention".[176]
The two prisoners are accused of involvement in the killing of
two UK service personnel. The FCO's human rights report states
that the transfer was made "in response to requests from
the Iraqi authorities" and "following the approval of
the UK courts". The MoU with Iraq, unlike that with Afghanistan,
does not explicitly prohibit use of the death penalty.[177]
However, the Government states that it has received assurances
in relation to the two men from:
President of the Iraqi High Tribunal, President Aref,
that a death sentence would be commuted, as well as written assurances
from Deputy Justice Minister Posho that the two detainees will
be treated humanely whilst in Iraqi detention. We are satisfied
that the Government of Iraq is aware of its earlier assurances
and have no reason to believe that they are not being adhered
to.[178]
In its human rights report the FCO expresses concern
about anecdotal evidence of abuse of detainees in Iraq.[179]
The transfer of the two men is currently the subject of a judicial
review.
92. On 30 December 2008 the Court of Appeal ruled
that the detainees were held on the authority of the local criminal
court and were therefore not under the jurisdiction of the UK
for the purposes of the European Convention on Human Rights (ECHR).[180]
Both Human Rights Watch and Amnesty International expressed concern
to us that the Government ignored a European Court of Human Rights'
(ECtHR) interim measure request not to make this transfer until
the ECtHR had considered itself whether it was compatible with
the ECHR. Human Rights Watch stated that it "risks undermining
the authority of the Strasbourg court",[181]
with Benjamin Ward adding that
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.[182]
The Government told us that it "considers that
it has not breached its obligations under the European Convention
on Human Rights. Proceedings in Strasbourg are ongoing."[183]
93. Amnesty International stated that the ECtHR
is due to consider a number of cases which "centre on the
extent to which individuals who claim to have suffered human rights
violations at the hands of UK armed forces in Iraq should be entitled
to the protection given by the ECHR, and to seek a remedy through
the UK courts." The Government has been criticised by the
UN Human Rights Committee which said that it was:
disturbed about the [UK]'s statement that its obligations
under the [International Covenant on Civil and Political Rights
(ICCPR)] can only apply to persons who are taken into custody
by the armed forces and held in British-run military detention
facilities outside the United Kingdom in exceptional circumstances.
The UN Committee called on the UK to "state
clearly that the [ICCPR] applies to all individuals who are subject
to its jurisdiction or control". [184]
94. Amnesty International note that the UN Committee
against Torture has also raised concerns that the UK has not accepted
the applicability in this case of the Convention against Torture.
Kate Allen told us 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".[185]
95. We conclude that the Government
should have waited for the European Court of Human Rights to rule
on whether the transfer of Faisal Attiyah Nassar Al-Saadoon and
Khalaf Hussain Mufdhi to the Iraqi authorities in December 2008
was consistent with its obligations under the European Convention
on Human Rights before proceeding with the transfer. We further
conclude that explicit assurances that the death penalty would
not be used in the event of a conviction in these cases should
have been obtained in writing from the Iraqi authorities at the
highest level. We recommend that in future the Government obtains
such explicit assurances in writing from any national authority
to which it transfers a detainee.
TRANSFERS TO US FORCES IN IRAQ
96. In his February 2009 statement (see paragraph
87 above), the Defence Secretary reported that two detainees originally
captured by UK forces were, in February 2004, transferred to the
US authorities and subsequently moved to Afghanistan, where they
remain. In their written submission, the FCO state that the position
of the US is that "it is neither possible nor desirable to
transfer them to either their country of detention or their country
of origin".[186]
A due-diligence search by US officials has found that this was
the only occasion on which UK-detained personnel transferred to
US forces in Iraq were subsequently transferred out of the country.
Mr Hutton admitted that brief references to the case were included
in "lengthy" papers which went to the then Foreign and
Home Secretaries (Rt Hon Jack Straw MP and Rt Hon Charles Clarke
MP respectively) in April 2006, but that "the context provided
did not highlight its significance at that point".[187]
A subsequent Parliamentary Question revealed that an MoD official
was copied a document noting the transfer on 7 October 2004. According
to the Government, the document has not been found in MoD records
and the official does not recollect receiving it. The then Defence
Secretary stated that he was satisfied that his officials "were
unaware of the case and that they acted in good faith at all times".[188]
The two individuals were Pakistani members of the Lashkar-e-Taiba
organisation in Iraq,[189]
and the US claims the transfer occurred " because of a lack
of relevant linguists to interrogate them effectively in Iraq"[190]
97. Amnesty International expressed concern about
the transfer, stating that:
On the basis of the limited public information about
these two cases, it appears that the detainees would have been
"protected persons" under the Fourth Geneva Convention
and that the USA would have violated this provision when it transferred
them to Afghanistan. Unlawful deportation or transfer or unlawful
confinement, as well as torture and other inhuman treatment, in
violation of the Geneva Conventions, are war crimes.[191]
They recommended that the Government should give
further details of the cases of the two men transferred to Afghanistan
from Iraq, including
whether the two men [
] were held in secret
detention by the USA at any time; whether they were subjected
to interrogation techniques or detention conditions that violated
the prohibition of torture or other ill-treatment; and, if so,
whether anyone has been held accountable.[192]
Reprieve recommended that the prisoners should be
identified and given legal representation, and that a review take
place to investigate possible UK involvement in such activities
elsewhere.[193] Clive
Stafford Smith argued that
the British Government have admitted that we were
involved in something that is illegal under British law [
]
It is inconceivable to me, quite frankly, that the British Government
can say publicly, "We admit that we committed two criminal
acts, but we are not going to tell you who the victims of those
acts are." [194]
98. The Foreign Secretary told us that the transfer
did not indicate shortcomings in record keeping, adding that:
When the former Defence Secretary made his statement
to the House of Commons, he made it clear that the transfer to
Afghanistan should have been questioned at the time [
] the
future course of those two people should have been questioned
at the time. There was no question of British personnel collaborating
or colluding in rendition to Afghanistan.[195]
He promised to provide us with the FCO's assessment
of the legality of the transfer, adding that the answer would
be:
part governed by the fact that Iraq was under a chapter
7 mandate at the time and the law of armed conflict was in issue
at the time in Iraq. I think that there would be a large number
of unique legal issues at stake. That is what makes a difference.
Iraq and Afghanistan have been and are governed by international
legal commitments that are different from some of the other cases
mentioned.[196]
The FCO later informed us that
The US believes they had legal authority to make
this transfer [
] however, the United States is currently
reviewing its policy in this area. We welcome this review and
look forward to its outcome. In the particular case in question,
we have sought and received assurances about the welfare of the
individuals concerned and have put into place safeguards and guarantees
to prevent repetition.[197]
99. We asked the Foreign Secretary whether he
would provide details about these men's identities and give assurances
about their treatment since the transfer. He replied that "the
former Defence Secretary gave all the information that we had
at the time of the statement to Parliament; I am not aware of
any further information having come to light since then."[198]
Correcting the transcript of the session, the Foreign Secretary
subsequently noted that it would have been more correct to state
that "We are unable to provide further information on this
matter other than that given by my Rt. Hon. Friend the former
Secretary of State for Defence in his statement of 26 February
2009."[199]
100. Clive Stafford Smith asserted that that
this was not an isolated case:
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 renderedand that is certainly not included
in the British report.[200]
He also suggested that the allegations made by Ben
Griffin related to additional cases:
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 [see paragraph 87 above]. You will
know that he was in Iraq only from 2005 onwardafter 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[201]
101. We conclude that the onward
transfer to Afghanistan of two Pakistani men transferred from
UK to US custody in Iraq in 2004 is of great concern. We do not
regard the stated reason for this transfer, that US forces did
not have sufficient linguists available in Iraq, as being convincing.
We further conclude that it is not acceptable that the Government
is unable to identify these detainees, or to provide assurances
about their subsequent treatment. We recommend that the Government,
in its response to this Report, identifies these men, and inform
us of what steps it has taken to discover whether they have been
treated in an acceptable way since being transferred to US forces.
We conclude that the allegation by Reprieve that these two cases
were not, as the Government asserts, isolated ones, gives cause
for concern. We recommend that the Government investigates in
detail any specific allegations put before it by Reprieve and
reports to us the outcome of those investigations.
Transfers within Afghanistan
102. In 2006 the UK agreed a Memorandum of Understanding
(MoU) with the Afghan Government in respect of detainees captured
by UK forces.[202]
It commits the UK Government to transferring detainees to the
Afghan government at the earliest opportunity, and obliges the
Afghan government to treat all prisoners in line with its international
legal obligations.
103. Redress told us that it was significant
that in its latest annual human rights report the FCO did not
repeat the assertion it had made in its previous report, that
it is confident about the treatment of detainees handed over to
the Afghan authorities.[203]
Giving oral evidence as part of our recent inquiry into "Global
Security: Afghanistan and Pakistan", Elizabeth Winter, Adviser
to the British and Irish Agencies Afghanistan Group, told us that
it was not possible to be certain that detainees will not be tortured,
adding "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."[204]
Redress argued that, in the light of evidence that torture is
used in Afghanistan, the MoU:
cannot provide an effective safeguard against torture
and other ill-treatment, and other serious human rights violations.
Relying on [
] it to facilitate the transfer of people where
there are substantial grounds for believing that they would face
a real risk of torture is fundamentally inconsistent with the
principle and obligation of non-refoulement in international human
rights law.[205]
104. The Foreign Secretary disagreed with this
view. He told us that the MoU provided a satisfactory basis on
which to make transfers. He stressed the safeguards in place:
For me, one important indicator is the access of
independent groups to detention centres, and elsewhere. I take
very seriously the reports that I get from the International Committee
of the Red Cross, the Red Crescent, and the Afghan Independent
Human Rights Commission. They have access to Afghan detainees,
as well as there being access for our officials, although with
the best will in the world our officials cannot be everywhere.
But those independent, third party corroborations are important.
[
] our officials and the Royal Military Police
all visit detainees transferred into Afghan custody to try to
ensure that standards are maintained. That is the right thing
to do. We have an ongoing relationship. It is not like an MoU
that is plastered on a wall, or put on to a shelfwe seek
to honour it in all our engagements with the Afghan authorities.
Equally, as you know from your trips to Afghanistan, it is a country
without the state machine and traditions that we have. If there
was any suggestion of mistreatment, our people would take that
extremely seriously.[206]
105. We conclude that the potential
treatment of detainees transferred by UK forces to the Afghan
authorities gives cause for concern, given that there is credible
evidence that torture and other abuses occur within the Afghan
criminal justice system. We recommend that the Government institutes
a more rigorous system for checking on the welfare of tranferees
in Afghanistan, on an individual basis, and that in its response
to this Report, it informs us of the steps proposes to take to
achieve this end.
US detentions
106. Amnesty International has urged the British
Government to press the US "to be more transparent about
its detentions in Afghanistan". Amnesty has expressed concern
in particular about the treatment of detainees held at Bagram
air base, stating that further details should be sought of "who
is being held, where they are being held and how long they have
been held for".[207]
Clive Stafford Smith of Reprieve told us that
I had an e-mail from an American captain, who was
in the Waghez district of Afghanistan a while backI met
him in Guantánamoand 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 boardwe
told the US militaryand 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 Guantánamo,
but there are many, many more prisoners in Bagram, who are far
worse off than in Guantánamo.[208]
Such allegations have also been reported in the press.[209]
Responding to these concerns about Bagram, the Foreign Secretary
told us that there had been "an ICRC [International Committee
of the Red Cross] investigation and ICRC access there", and
that the Government had received "American assurances in
respect of the humane treatment of people there".[210]
Legal responsibility for detainees
after transfer
107. During our joint evidence session with the
Defence Committee on Iraq and Afghanistan in October 2008, we
explored the issue of the responsibility that the UK retains for
detainees following their transfer. During that session the then
Defence Secretary, Mr Hutton, appeared to suggest that such a
responsibility existed,[211]
but in a subsequent memorandum he corrected his position:
I [
] want to take this opportunity to confirm
our legal position with regard to detainees. The UK does not have
legal obligations towards the treatment of individuals we have
detained once they have been transferred to the custody of another
state, whether in Iraq or Afghanistan or through the normal judicial
extradition process.[212]
In a subsequent letter the Foreign Secretary confirmed
that the FCO concurred with this position, adding:
HMG takes meticulous care that any transfer takes
place in accordance with the strategic framework of memoranda
of understanding and other assurances, so that we can be abundantly
certain that it is consistent with any applicable international
human rights obligations of the United Kingdom.[213]
108. Andrew Tyrie MP provided us with a legal
opinion published on 29 September 2008, prepared by Michael Fordham
QC and Tom Hickman, barristers at Blackstone Chambers who specialise
in human rights law. Mr Tyrie told us that:
The Opinion makes clear that assurances provided
by another state, that an individual handed over by UK forces
would not be mistreated, would not absolve the UK government of
the obligation to examine whether the assurances provide a sufficient
guarantee that the individual will be protected against the risk
of ill-treatment. Importantly, the Legal Opinion highlights
"specific concerns about the legality of the UK having accepted
such assurances" from the US.[214]
109. Mr Tyrie subsequently wrote to the Chairman
of the Defence Committee, Rt Hon James Arbuthnot MP, setting out
his grounds for challenging the validity of Mr Hutton's statement:
if an individual has been transferred in circumstances
where the transfer arguably breached the European Convention on
Human Rights, and the Human Rights Act, then there may be a continuing
obligation on the UK to investigate the circumstances of that
transfer. This appears to have been contradicted by the Secretary
of State's letter;
although there are obligations up to the point of
transfer to ensure that a detainee is treated in accordance with
the rights set out in the ECHR, this is not mentioned by the Secretary
of State in his letter;
agreements between the UK and the Afghan authorities
and between the UK, Australia and the US, give the UK powers that
appear inconsistent with the Secretary of State's assertion that
the UK no longer has any legal obligations towards transferred
detainees;
there may also be continuing obligations under criminal
law or tort law once a detainee has been transferred. This also
appears to have been contradicted by the Secretary of State's
letter.[215]
110. Kate Allen of Amnesty International was
clear that "the legal obligation still rests with the UK",
[216] and Benjamin
Ward indicated that the UK has
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.[217]
111. A further issue is the extent to which the
Government follows up in individual cases the welfare of detainees
that have been transferred. Clive Stafford Smith told us that
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.
[218]
112. The Foreign Secretary told us that the Government
does follow up what has happened to the detainees that are transferred:
If you mean by systematic an ongoing, detailed, in
person investigation, then that has been going on. To put that
in perspective, it is useful to have some numbers. As of last
week, 544 people had been detained, 295 had been transferred to
the Afghan authorities and 259 had been released. That gives you
some idea of the scale that we are talking about. That is why,
when I talk about British embassy officials from Kabul, or the
Royal Military Police investigating it, given the scale of that
detention, it is reasonable to talk about an ongoing, in person,
careful review of the situation.[219]
113. We conclude that although
there may be scope for argument about the extent of the legal
obligation on the UK to monitor the welfare of individual detainees
after it has transferred them to another country, there is no
doubt in our view that the UK is under a moral obligation to do
so. Such monitoring is desirable not only to enable the Government
to intervene if it receives information that an individual is
being ill-treated, but also because any evidence thus revealed
of systematic ill-treatment will call into question whether future
transfers to that country should take place. We recommend that
the Government takes the necessary action to ensure that it has
mechanisms in place to allow it effectively to monitor the welfare
of individuals transferred, and in its response to this Report
sets out what specific steps it is taking.
166 Oral evidence taken before the Defence and Foreign
Affairs Committees on 28 October 2008, HC (2007-08) 1145-i Back
167
HC Deb, 26 February 2009, cols 394-97 Back
168
Statement of Ben Griffin, 25 February 2008, http://stopwar.org.uk/content/view/533/27/
Back
169
The Guardian, "Court gags ex-SAS man who made torture
claims", 29 February 2009 Back
170
HC Deb, 26 February 2009, col 394 Back
171
Q 163 Back
172
HC Deb, 26 February 2009, col 394 Back
173
Reprieve press release, 26 February 2009, Back
174
Q 49 Back
175
The Committee printed the Memorandum of Understanding with evidence
taken jointly with the Defence Committee on Iraq and Afghanistan
on 28 October 2008, HC (2007-08) 1145-i. Back
176
Ev 45 Back
177
Q52 Back
178
Ev 53 Back
179
Foreign and Commonwealth Office, Annual Report on Human Rights
2008, Cm 7557, March 2009, pages 143-144 Back
180
Prisoners in Iraq are not under UK jurisdiction; Law Report, The
Times, 4 February 2009, page 51. Back
181
Q52; Ev 75 Back
182
Q 52 Back
183
Ev 53 Back
184
Ev 75 Back
185
Q 52 Back
186
Ev 46 Back
187
HC Deb, 26 February 2009, col 394 Back
188
HC Deb, 3 March 2009, col 1439W Back
189
Q 145, 147; Ev 146 Back
190
Ev 46 Back
191
Ev 76 Back
192
Ev 76 Back
193
Reprieve press release, 26 February 2009, http://www.reprieve.org.uk/2009_02_26Renditionsadmission
Back
194
Q 4 Back
195
Q 145 Back
196
Q 148 Back
197
Ev 52 Back
198
Q 149 Back
199
Q 149 Back
200
Q 50 Back
201
Q 49 Back
202
The Committee printed the Memorandum of Understanding as an Appendix
to its report on Guantanamo Bay. (Visit to Guantanamo Bay, Second
Report on Session 2006-07, HC 44) Back
203
Ev 136 Back
204
Foreign Affairs Committee, Eighth Report of Session 2008-09, HC
302, Q88 Back
205
Foreign Affairs Committee, Eighth Report of Session 2008-09, HC
302, Ev 146 Back
206
Qq 161-2 Back
207
Ev 75; Q 53 Back
208
Q 53 Back
209
Bagram detainees allege abuse by US soldiers, Guardian Unlimited,
25 June 2009. Back
210
Q161 Back
211
Evidence taken before the Defence and Foreign Affairs Committees
on 28 October 2009, Iraq and Afghanistan, HC (2007-08) 1145-I,
Q24-25 Back
212
Evidence taken before the Defence and Foreign Affairs Committees
on 28 October 2009, Iraq and Afghanistan, HC (2007-08) 1145-I,
Ev 20 Back
213
Foreign Affairs Committee, Eighth Report of Session 2008-09, HC
302, Ev 161 Back
214
Foreign Affairs Committee, Eighth Report of Session 2008-09, HC
302, Ev 160 Back
215
http://www.extraordinaryrendition.org/index.php/appg-letters-on-extraordinary-rendition/uk-committees?start=5
Back
216
Q 55 Back
217
Q 55 Back
218
Q 55 Back
219
Q 163 Back
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