The Honourable Andrew Dismore MP

Houses of Parliament

LONDON

SW1A 0AA

 

22 June 2007

 

 

 

Our Ref: PS/bb/Iraq

 

 

 

Dear Mr Dismore

 

Attorney-General's Advice on Legal Standards in Iraq

 

I am writing to you on the subject of the legal advice given by the Attorney-General at the outset of the invasion of Iraq as to the applicable legal standards to be applied by UK forces to Iraqi prisoners of war, internees and detainees.

 

The points I make, and questions I pose, all arise from the transcript of the proceedings of the court martial at Camp Bulford into the death of Baha Mousa, and the abuse of ten other Iraqi civilians. I know that you aware of the issues arising from this court martial. You may also be aware of the case of R (on the application of Al Skeini and others) v The Secretary of State for Defence which concluded in the House of Lords on 13 June with a judgment that the HRA/ECHR did apply in S E Iraq when UK forces had Iraqis in a detention facility. As the solicitor in that case I have been invited to make representations to the Secretary of State for Defence by 30 June. Thereafter he will decide by the parliamentary recess whether there should be an independent inquiry into issues arising from the court martial in the Mousa incident. If he does not volunteer an independent inquiry the matter will return to the Divisional Court for it to decide whether such an inquiry should be held.

 

Some of the most troubling aspects of the court martial proceedings is clear evidence from various witnesses that appears to establish as follows:

 

1. Mousa and the other ten detainees were hooded, stressed, deprived of sleep and deprived of food. One detainee was subjected to noise as a means of "breaking him".

2. Interrogators and Tactical Questioners were trained at Chicksands to hood, stress and sleep deprive.

3. Hooding reflected verbal and written NATO policy.

4. There was a written policy on hooding apparently in at least two documents, one being an army doctrinal pamphlet and the other according to Colonel Nicholas Baker (13 December 2006 at page 80) being Joint Warfare Publication 1-10.

5. All battle groups were routinely hooding, stressing and cuffing.

6. Even after Mousa's death there was still a debate at the "highest level" as to whether hooding was lawful.

7. As late as May 2004 civil servants at Permanent Joint Head Quarters (PJHQ) were saying they had only heard of the 1972 Heath Government ban on these five techniques two weeks ago and were endeavouring to obtain the advice.

8. Various senior military officers and civil servants had been operating on the basis that the 1972 ban was not a prohibition of these techniques being used anywhere in the world, but instead a human right not to be so treated which applied only to the territory of the UK and Northern Ireland.

 

Thus, it is of the utmost importance to examine closely and by reference to the evidence what was happening at a senior level within the military, civil service and government. How could the UK have gone into Iraq with an apparent policy of reintroducing these techniques?

 

It is important to focus on the evidence of Lieutenant Colonel Mercer on 8 December 2006 at pages 7-72 (which I attach). Mercer was in charge of Army Legal 1 Division who were the relevant division at the outset of the invasion and subsequent occupation. The following points emerge:

 

He wanted a Detainee and Internee Management Unit (DIMU) to be put in place based on a model from East Timor "which had got a tick plus plus from the UN saying that it was in accordance with the highest human rights standards" ( pp23-24).

 

Concerning the moot point as to whether the HRA/ECHR applied he took the view that the "obvious default setting is to go for the highest standard" (p18).

 

In March 2003 on his visit to the POW camp he saw approximately 40 Iraqi prisoners "kneeling in the sand, cuffed behind their backs, in the sun with bags over their heads and there was an interrogation tent next to the prisoners with a generator running outside" (p11).

 

He took the view as a lawyer this violated the law of armed conflict and he took his concerns to the General Officer Command (GOC) (p11). The intelligence branch responded that hooding in particular "was part of their doctrine" (p12). Later in the transcript he confirms again that he was told hooding and stressing "is in accordance with British Army doctrine on tactical questioning" (p26). Further he was shown a written memorandum that was the Intelligence Corps doctrine (p16).

 

At the time the Red Cross formally complained to the British Government and a meeting took place with the Red Cross at the UK's Theatre Internment Facility at Umm Qasr (Camp Bucca) (p13).

 

His objective was to put the DIMU "in place in Theatre so that we had a Detainee and Internee Management Unit headed up by a UK judge to review it -".

 

In response to these concerns eventually Mercer is written to by Miss Rachel Quick OBE and the following passage sets out in detail the position:

 

 

2 "Dear All

 

3 "Thanks for copying me in on this. I've arranged

 

4 for the FCO Legal Adviser (Gavin Hood) to come up to

 

5 PJHQ so we can only discuss many of these issues. We

 

6 hope to have a completely translated version of the

 

7 Iraqi penal code tomorrow ..."

 

8 She goes on:

 

9 "On the application of ECHR, Vivien's letter dated

 

10 19 March ..."

 

11 I think we have just heard his statement

 

12 (inaudible):

 

13 "... (copied to NCC Legal Cell) which records the

 

14 advice of the Attorney General (supported by Prof

 

15 Greenwood and Jamie Eadie) makes the following points:

 

16 "During Phase III(b) Phase III, lex specialis

 

17 operates to oust ECHR. At PJHQ we only intend to

 

18 concentrate on the impact of GC III/GC IV Hague Regs

 

19 ..."

 

20 That is the Geneva Convention:

 

21 "... when providing guidance to TELIC Phase IV

 

22 operations. I would refer to the AG's advice (Nicholas

 

23 if you do not have a copy, please ask Neil to send you

 

24 a copy). This concluded the better view was that the

 

25 HRA was only intended to protect rights conferred by the

 

 

21


 

 

 

 

 

 

1 Convention and the court must look to international law

 

2 to determine the scope of those rights.

 

3 "If international law applied, the lex specialis to

 

4 the exclusion of ECHR then those Articles could not

 

5 confer a right which HRA would render enforceable. For

 

6 your purposes, I would suggest this means no requirement

 

7 for you to provide guidance on the application of

 

8 HRA/ECHR. I hope this is clear."

 

9 She is telling you: "Do not worry your head about

 

10 it".

 

11 A. That is correct.

 

12 Q. "We have the Attorney General's advice"?

 

13 A. Yes, but we disagreed with that.

 

14 Q. In the "PS" it says:

 

15 "Nicholas: If the [Attorney General] and Prof

 

16 Greenwood are wrong on this advice, perhaps you could

 

17 put yourself up to be the next Attorney General!!"

 

18 And I think Professor Greenwood was the academic --

 

19 THE academic -- who supported the view of the Attorney

 

20 General on the legality of the war, is that right --

 

 

 

 

 

 

 

 

 

 

22

 

In terms of pushing for the highest standards to be applied he was getting political and legal resistance from Rachel Quick, the MoD, PJHQ, etcetera (p32).

 

I attach my recent exchange of letters with the Attorney-General and Treasury Solicitors on his behalf. You will note that the Attorney-General refuses to make his position clear on any of the pressing questions raised, hiding behind the protocol of legal privilege in circumstances where I, quite properly, need to know the answers to these questions.

 

It is my teams' position that the Attorney-General should have advised that, notwithstanding, the question of statutory interpretation as to whether the HRA applied (a point now confirmed by the House of Lords), nevertheless the highest standards applied in any event to the UK's detention policy from a combination of all of the following:

 

1. Geneva Convention III to Prisoners of War

2. Geneva Convention IV and Additional Protocol I to Civilians

3. The Convention against Torture to all

4. The International Criminal Court Act 2001 to all

5. The Criminal Justice Act 1988 to all

6. The 1972 Ban to all

 

If he had so advised, hooding and the other techniques would have been prohibited in the relevant military orders to all battle groups, and many Iraqis, including Mousa who was hooded and stressed for most of the 36 hours he survived, would not have been subjected to these practices (I do have a one minute video of these practices being applied to the detainees but I am not permitted to use this video for any purpose other than the House of Lords Proceedings). I should add that Mercer reported seeing Iraqis hooded using "old plastic cement bags" and that various witnesses refer to up to three sandbags being used. All this in temperatures of up to 60oC and in conditions of exposure to the direct rays of the sun at the Theatre Internment Facility (Camp Bucca). Finally I should add that the evidence makes it patently clear that hooding was not being used for security reasons but as part of the conditioning process to maintain the shock of capture and in the Mousa incident as a blatant form of punishment as detainees were hooded after tactical questioning had finished.

 

Accordingly there is a most pressing question as to which of three scenarios was in play:

 

Scenario One

 

In this scenario the Attorney-General was not properly instructed when asked to advise on the applicability of the HRA/ECHR. He did not know and had no way of knowing that hooding, stressing and sleep deprivation were being trained and the policy written down and applied by all battle groups. He did not know of Mercer's specific concerns which were not communicated to him in any way. He did not know of the confusion at the highest level as to whether hooding was lawful. He did not know of the ignorance of the legal position on the 1972 ban at the highest level including at PJHQ. He did not know and could not have known that the 1972 ban was being treated as not applying extraterritorially. In this first scenario although he advised that the HRA/ECHR did not apply to the UK's detention policy nevertheless he did advise that this should make little difference to the relevant legal standards which, naturally, combined could never have allowed hooding. This first scenario causes a number of probing questions to be asked of others but would exonerate the Attorney-General of any blame.

 

Scenario Two

In this scenario he was not instructed about what was going on as set out in scenario one. Neither could he have known of any of the factors set out in scenario one. However in this scenario he did not advise as Mercer thought was appropriate that the highest standards applied. In this scenario he may not have advised:

 

That the 1972 ban applied.

That the Convention against Torture applied.

That Geneva Convention IV Additional Protocol I applied.

 

Accordingly Vivian Rose's direction to Mercer that "at PJHQ we only intend to concentrate on the impact of GCIII/GCIV" (with no mention even of Additional Protocol I) is highly indicative of the position. It would seem in this scenario that having advised that lower standards applied it was relatively easy for those in positions of authority and military command to interpret these lower standards as not specifically prohibiting hooding. In this scenario the Attorney-General shares a high degree of blame for not putting in place the appropriate legal framework.

 

Scenario Three

 

In this scenario the Attorney-General was properly instructed (as one would expect) and did not advise on the HRA/ECHR applicability point in a vacuum. He knew when he was instructed (and certainly was told of Mercer's concerns) of the specific operational implications of his advice. I need say no more as to the implications of this.

 

I have serious concerns that every effort is being made by the Attorney-General's office to refuse access to his legal advice and any insight into what his position was at the time. It is simply not good enough for the Attorney-General by clever use of the present tense to lead us to believe that what his position may be now was in fact his position at the time. We need to know what his position was in March 2003 and onwards. I very much hope that your committee will take this important opportunity of pressing the Attorney-General on these issues which for my part raise the most profound constitutional issues.

 

I am of course available to your committee if in any way I can be of further assistance.

 

Yours sincerely

 

 

 

 

 

Phil Shiner

Solicitor

 

Public Interest Lawyers