Joint Committee On Human Rights Nineteenth Report

4  The armed forces

68. Our terms of reference state that we may consider "matters relating to human rights in the United Kingdom". In our view the question of the applicability of UNCAT to the actions of UK troops in territory which is outside the United Kingdom but under UK control falls within those terms of reference. This is because UNCAT applicability relates to the jurisdiction of UK courts and courts martial over military personnel for actions which may be in breach of prohibitions against torture and inhuman or degrading treatment or punishment under UNCAT, the ECHR, and domestic and international law. We also consider that the extent to which the Ministry of Defence puts in place procedures to ensure that British troops are trained in, understand and observe the human rights obligations by which they are bound, is a matter falling squarely within our terms of reference. However, our terms of reference prohibit consideration of individual cases. This precludes us from investigating the circumstances of alleged breaches of human rights by British troops in Iraq or elsewhere outside the UK. It is against that background that we consider human rights matters arising from the conflict in Iraq in the following section of our Report.

Territorial applicability of UNCAT

69. At the hearing on the UK report before the UN Committee, the Government argued that the obligation to prevent torture or inhuman or degrading treatment under Articles 2 and 16 UNCAT only applied "in territory that is under UK jurisdiction".[94] The Government did not consider that the UK exercised jurisdiction in Iraq or Afghanistan, which were sovereign states. It followed that the UK considered that neither UNCAT nor Article 3 ECHR applied to transfer of prisoners to Iraqi or US physical custody within Iraq, since prisoners taken into custody in Iraq had at all times been subject to Iraqi jurisdiction. Similar principles applied to transfer of prisoners within Afghanistan.

70. The Concluding Observations emphasised that "the Convention protections extend to all territories under the jurisdiction of a State party and … this principle includes all areas under the de facto effective control of the State Party's authorities." The Committee recommended that the UK should ensure the application of Article 2 UNCAT (the duty to take effective measures to prevent torture) and Article 3 UNCAT (the duty of non-refoulement to face torture on return) to transfers of detainees from UK custody to either the de jure or de facto custody of any other state.

71. In December 2005, the Court of Appeal decided the case of R (Al-Skeini) v Secretary of State for Defence,[95] in which the families of a number of civilians killed by British forces in Iraq alleged breach of the right to life under Article 2 of the European Convention on Human Rights as incorporated by the Human Rights Act 1998. The Court of Appeal held that the European Convention on Human Rights, and therefore the Human Rights Act, applied where either an individual was under the authority and control of British agents (for example, if he was under arrest) or where a territory as a whole was under the effective control of British forces. Therefore, Article 2 ECHR rights could be applied in the case of Baha Mousa, who had died whilst under arrest by British forces, but not in the cases of other applicants, who had been shot by British soldiers on the streets of Basra, which the Court found, on the facts, had not been under the effective control of British forces, despite the British occupation of the city. Although the Al-Skeini case did not deal directly with obligations under UNCAT, it appears to follow from this judgment that UNCAT would apply to the treatment of prisoners held by British forces abroad. The case is currently subject to appeal by both the Secretary of State and the unsuccessful applicants.

72. The Minister for the Armed Forces, Adam Ingram MP said that "we accept that UNCAT does apply to our troops overseas because it has been enshrined in British law in section 134 of the Criminal Justice Act 1988 and therefore British soldiers carry it with them".[96] On the positive obligations imposed by the Convention, the Minister stated that detainees would only be transferred to the custody of another state if UK forces were satisfied that the individual would be treated satisfactorily following transfer. This condition could be met by a Memorandum of Understanding or other arrangement with the receiving state, but where such an arrangement existed, there would be no transfer of prisoners where it appeared that the terms of a Memorandum were not being observed.[97] However, UK forces "could not act as a policeman" of sovereign states.[98] In its response to CAT, the Government reiterated that it did not consider that Articles 2 and 3 UNCAT applied to the transfer of detainees to Iraqi or Afghan custody, though it also stated that if it were not satisfied that detainees would be treated humanely and not tortured it would not transfer them.[99]

73. We are not fully reassured by Mr Ingram's answers and the Government's response to CAT. Whilst the application of the Criminal Justice Act 1988 to UK forces in Iraq (subject to the defences available under the Act, which have been considered above) is likely to satisfy the requirement of the Convention for the criminalisation of acts of torture, the Government has not expressly accepted the application of other rights and duties under UNCAT to territory controlled by UK forces abroad, in particular the duty to prevent torture, the duty not to return detainees to face torture, and the duty to investigate allegations of torture. We recommend that the Government should expressly accept the application of all of the rights and duties in the Convention Against Torture to territory under the control of UK troops abroad.

Training of troops in human rights obligations

74. Questions remain questions as to the extent to which UK troops have engaged in practices amounting to torture or inhuman or degrading treatment, in Iraq and Afghanistan, and to what extent military orders and directives, and training of military personnel, have been sufficient to prevent such treatment. Under Article 10 UNCAT, State Parties undertake to "ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment." Article 10.2 provides that : "Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person."

75. Under Article 11 State Parties undertake to "keep under review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture" (or, under Article 16, inhuman or degrading treatment). Under Article 12, states undertake to conduct prompt and impartial investigations, where there are reasonable grounds to believe that an act of torture (or, under Article 16, inhuman or degrading treatment) has been committed in any territory under the jurisdiction of the state.

76. Allegations of ill-treatment, amounting to torture or inhuman or degrading treatment, by UK troops operating in Iraq and Afghanistan first came to light in a report of the International Committee of the Red Cross (ICRC) in February 2004. Since then, courts martial have been held. The most widely-reported was in Osnabrück; it resulted in the conviction of three soldiers. Other investigations are under way and there have been further allegations in the press, most recently following the release of a video showing demonstrators being beaten by troops in Southern Iraq.

77. The House of Commons Foreign Affairs Committee in the last Parliament addressed this issue in its report on Foreign Policy Aspects of the War Against Terrorism.[100] We concur with the conclusions of that Committee that:

some British personnel have committed grave violations of human rights of persons held in detention facilities in Iraq, which are unacceptable. We recommend that all further allegations of mistreatment of detainees by British troops in Iraq, Afghanistan or elsewhere be investigated thoroughly and transparently. We conclude that it is essential that wherever there are overseas detention facilities, those responsible for detainees must have adequate training. We recommend that the Government review its training of and guidance to agency personnel, officers, NCOs and other ranks on the treatment of detainees to ensure that there is no ambiguity on what is permissible.[101]

78. In the last Parliament, following the initial allegations against British troops in Iraq, the previous JCHR wrote to the Ministry of Defence, in order to seek to establish whether the Ministry had put in place sufficient compliance mechanisms to meet both the requirements of the Human Rights Act and other international human rights standards. It sought information about the orders and directives applicable to the treatment and interrogation of prisoners; about the training and information made available to troops on the treatment of prisoners and civilians and on the human rights and humanitarian law standards applicable; on the practice of hooding prisoners; and on the system of investigation of allegations of abuse. At the end of the Parliament, that Committee published its exchange of correspondence with the MoD, reporting that the information provided by the Ministry had not enabled it to reach a view on the matter and suggesting that an inquiry into UNCAT by the JCHR in the new Parliament could provide an opportunity for the issues involved to be pursued.[102]

79. In that correspondence, Mr Ingram, in his letter to the Committee of 12 February 2005, stated that: "military personnel are fully informed of their responsibilities and obligations under national and international human rights and humanitarian law, not only through training received prior to deployment, but also through standard operating procedures which are developed in line with legal advice. Annual training aims to impart and revise the key skills required for operational readiness; training staff are encouraged to set role-play scenarios of the sort likely to be encountered on operations … To aid this training the Army provides a pamphlet and video scenarios for the Small Arms Trainer and Dismounted Close Combat Trainer. … This is then reinforced during pre-deployment training." Mr Ingram also referred to aide memoire cards issued to all troops before deployment in Iraq, which "clearly states that detainees (which includes security internees) and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture, inhuman or degrading treatment."

80. In the context of this inquiry we requested that further relevant documents be supplied to us. The majority of these documents were provided, on a confidential basis, and in some cases partially redacted, in February 2006. The sole unclassified document amongst those we asked to see was the aide memoire issued to service personnel on deployment to Iraq.[103] We have reviewed the documents provided to us on a confidential basis and we accept broadly speaking, but with certain reservations, that they provide a basis for human rights compatible action by the armed forces. However, we note with concern, as it is a matter of public record, that training and guidance documents do not refer to the Convention Against Torture, or to the Convention rights enshrined in the Human Rights Act, but confine their reference to the Geneva Conventions. Irrespective of the Government position on the legal application of UNCAT obligations to territories outside the UK which are under its control, we consider that, as a matter of good practice, training and guidance should contain information on the Convention against Torture and the obligations it imposes.

81. We put it to Mr Ingram in oral evidence that the training and guidance provided to troops had in practice proved to be insufficient in the military operations in Iraq. Mr Ingram emphasised that there had been considerable efforts made to ensure that armed forces personnel, in particular soldiers operating on the ground, were aware of domestic and international legal obligations.[104] Lieutenant General Brims told us that officers and soldiers were trained both on joining the army, and then annually, with annual career development training being specific to both the individual's rank and the situation in which he or she was working. There was also specific pre-deployment training. The army was open to learning lessons from mistakes and allegations as well as best practice. [105]

82. We are grateful to the Ministry of Defence for providing us with sight of a range of documents relating to the training and guidance provided to the armed forces on the treatment of detainees and civilians. We are also grateful to them for drawing to our attention the Joint Service Publication 383: The Joint Service Manual of the Law of Armed Conflict, a public document which has replaced the Manual of Military Law Part III.[106] We regret, however, that the Ministry does not feel able to declassify at least some of the material contained in these documents, so as to inform the debate and provide some reassurance on a matter of significant public interest.

Interrogation techniques

83. There has been particular controversy over the use of hooding by UK troops in Iraq. Hooding was one of the "five techniques" held by the European Court of Human Rights to amount to inhuman and degrading treatment in breach of Article 3 ECHR, in a landmark decision of 1978, in Ireland v UK.[107] The Court held that the techniques employed in interrogations in Northern Ireland, though they did not amount to torture, did amount to inhuman and degrading treatment contrary to Article 3 ECHR. The five techniques were: wall-standing (forcing detainees to remain for long periods in a stress position against a wall); hooding (during interrogations); subjection to continuous loud noise; sleep deprivation; and deprivation of food and drink. The five techniques were never officially authorised in writing but were taught orally at training seminars.

84. In his letter of 25 June 2004 to the previous Committee,[108] Mr Ingram confirmed that the army directive prohibiting the use of the five techniques, introduced in 1972 following the allegations of ill-treatment in Northern Ireland,[109] remains in force, and stated that it is fully taken into account in training. An internal policy document "Guidance on Interrogation and Tactical Questioning—Support to Operations" states that the five techniques are expressly forbidden, though without specific reference to the Ireland v UK case.

85. In oral evidence to us, Lieutenant General Brims asserted that following allegations made in respect of operations in Iraq "very clear direction" had been given that hooding should not take place, either in interrogation, or elsewhere. It was however permissible to use other means to blindfold prisoners in some circumstances, for example during transfer.[110] Lieutenant General Brims was satisfied that troops on the ground would be aware that the five techniques were prohibited, although they might not be able to state this in terms of the judgment in Ireland v UK.

Investigation of allegations of torture or ill-treatment

86. Evidence from Redress also raises particular concerns about the thoroughness of investigations carried out into allegations of ill-treatment in Iraq.[111] It argues:

  • that although trial evidence from the courts martial held at Osnabrück disclosed that three soldiers were involved in acts of ill-treatment likely to amount to torture, none were charged with the crime of torture under section 134 of the Criminal Justice Act 1998;
  • that the Osnabrück trials disclosed actions of soldiers other than those brought to trial, which could amount to acts of torture, and which have not been prosecuted, calling into question compliance with Article 12 UNCAT, which requires a prompt and impartial investigation into allegations of torture;
  • that investigations conducted by the military had in some cases been slow and "fundamentally flawed".[112]

87. In oral evidence, Redress told us that there should be a wide ranging inquiry into the responsibilities of the military in the alleged abuses in Iraq.[113] Redress also considered that there should be further inquiry into whether courts martial were sufficiently independent and impartial to provide adequate investigation into allegations of abuse.[114]

88. In November 2005, a court martial judge dismissed, for lack of evidence, charges against a number of soldiers who had been charged with the abuse of civilians in Iraq.[115] The judge suggested that the military investigation into the allegations had been inadequate, and that much of the evidence was unreliable.

89. Mr Ingram stated that very high professional standards were applied in investigations, but stressed the difficulties involved in undertaking criminal investigations in the hostile environment of Iraq, with very limited resources and personnel available to undertake such investigations.[116] A review by Her Majesty's Inspectorate of Constabulary was under way to assess whether sufficient resources and forensic skills were available to carry out effective investigations.[117]

Bullying in the armed forces

90. In its Concluding Observations, the UN Committee Against Torture expressed concern at "reports of incidents of bullying followed by self-harm and suicide in the armed forces, and the need for full public inquiry into these incidents and adequate preventive measures".[118]

91. Serious incidents of bullying in the armed forces, such as those which are alleged to have led to suicides at Deepcut barracks, may raise issues of inhuman and degrading treatment contrary to Article 16 UNCAT. Four soldiers died at Deepcut between 1995 and 2003. Following an open verdict in one of the cases on 11 March 2006, the Coroner is reported to have stated that the Ministry of Defence should take further steps to restore public confidence in the barracks, including if necessary by a public inquiry.[119] Calls for a public inquiry into the allegations have not been accepted by the Government, but an independent review, led by Nicholas Blake QC, was established in December 2004. Its terms of reference were:

Urgently to review the circumstances surrounding the deaths of four soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002 in light of available material and any representations that might be made in this regard, and to produce a report.

92. The Blake Review reported in March 2006.[120] On the question of whether a full public inquiry into the immediate or broader circumstances surrounding the deaths at Deepcut should be held, the review concluded that this was not necessary.[121] This conclusion accorded with the view previously expressed by the House of Commons Defence Committee,[122] and in his statement to the Commons on 29 March Mr Ingram said that he concurred with it.[123] He also emphasised his intention to deal with the issues raised by the review and to provide a formal written response to its 34 recommendations.[124]

93. We note the Blake Review's conclusion that in only one of the three deaths reviewed, that of Sean Benton, might bullying or over-harsh discipline have played any role in undermining the morale of the trainee, and that there is insufficient reliable evidence to conclude that it did so.[125] On the other hand, we also note the Review's statement that evidence obtained by Surrey Police and the Review suggests that between 1995 and 2002 a number of trainees at Deepcut had experienced, or claimed to have experienced, harassment, discrimination and oppressive behaviour.[126]

94. From our immediate perspective of examining the Government's compliance with its obligations under UNCAT, we consider that there is no need for a full public inquiry into the circumstances of the deaths at Deepcut in order to meet those obligations, and we therefore agree with the recommendations of the Blake Review and the House of Commons Defence Committee on the matter. We note with interest the recommendation made both by the Review and by the Defence Committee that a Commissioner of Military Complaints (Armed Forces Ombudsman) should be established to provide independent supervision of the discipline and complaints system, and we will consider this matter further when we scrutinise the Armed Forces Bill currently before Parliament.

94   Para 212 Back

95   [2005] EWCA Civ 1609 Back

96   Q 248 Back

97   Q 246 Back

98   Q 247 Back

99   Ev 69 Back

100   Foreign Affairs Committee, Sixth Report of Session 2004-05, Foreign Policy Aspects of the War Against Terrorism, HC 36-I Back

101   Ibid., para 76 Back

102   Nineteenth Report of Session 2004-05, The Work of the Committee in the 2001-2005 Parliament, HL Paper 112, HC 552, para 145 Back

103   For the full list of documents we requested, and those supplied to us and the basis on which they were supplied, see Ev 97 Back

104   Q 237 Back

105   IbidBack

106   Ev 104 Back

107   (1978) 2 EHRR 25 Back

108   Nineteenth Report of Session 2004-05, op. cit., p 119 Back

109   Ireland v UK, op. cit., para 135 Back

110   Q 238 Back

111   Ev 179-80, paras 18-22 Back

112   Q 75 Back

113   IbidBack

114   IbidBack

115   Statements in both Houses, 7 November 2005 Back

116   Qq 257-259 Back

117   Para 258 Back

118   Para 4(h) Back

119   The Guardian, Coroner backs calls for Deepcut public inquiry, 11 March 2006 Back

120   The Deepcut Review: A Review of the Circumstances Surrounding the Deaths of Four Soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002, Nicholas Blake QC, HC 795 Back

121   Ibid., para 12.114 Back

122   Defence Committee, Third Report of Session 2004-05, Duty of Care, HC 63-I Back

123   HC Deb., 29 March 2006, col 854 Back

124   Ibid., col 856 Back

125   Op cit., para 12.23 Back

126   Ibid., para 12.24 Back

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