Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

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 people—Al-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


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.


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 rendered—and 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 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[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 shelf—we 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 back—I met him in Guantánamo—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 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,  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,  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  Back

216   Q 55 Back

217   Q 55 Back

218   Q 55 Back

219   Q 163 Back

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