Evidence of the use of conditioning
techniques in Iraq
5. In 2007, evidence came to light which appeared
to contradict the clear assurances we had received from Lieutenant
General Brims that conditioning techniques such as hooding and
the use of stress positions were not used by the British army.
During the court martial of a number of soldiers from 1 Queen's
Lancashire Regiment alleged to have been responsible for the death
of Baha Mousa, an Iraqi civilian, in September 2003, it emerged
that such techniques had been used to maintain the 'shock of capture'
in advance of tactical questioning.
The court heard evidence that the use of the conditioning techniques
had been authorised by Brigade headquarters and its legal officer.
There was also evidence about advice given by the Attorney General
on the applicability of the ECHR in detention facilities in Iraq,
which appeared to some to suggest that he had advised that the
ECHR did not apply.
At the end of the proceedings, Judge Advocate McKinnon spoke of
"a serious failing in the chain of command all the way up
to Brigade and beyond".
6. At the conclusion of the court martial - at
which only one person, Corporal Payne, was convicted, of inhumane
treatment - the head of the army, General Sir Richard Dannatt,
accepted that Baha Mousa and others "were subjected to a
conditioning process that was unlawful". He went on to state
that the duty of British military personnel to behave in accordance
with the law "was forgotten or overlooked in this case".
7. We wrote to the Secretary of State for Defence
on 22 May 2007 to raise a number of issues arising from the Payne
court martial, including:
- the apparent discrepancy between
the evidence presented to the Committee that the use of the conditioning
techniques had been prohibited and the evidence presented to the
court martial, and accepted by the Crown, that the use of hooding
and stress positioning was part of the standard operating practice
of 1 Queen's Lancashire Regiment in 2003 and had been sanctioned
by Brigade headquarters;
- whether any of the conditioning
techniques had ever been sanctioned or authorised for use in Iraq,
or in any other circumstances, by the Ministry of Defence or by
any of the armed forces, to prolong or maintain 'shock of capture'
prior to interrogation; and
- whether the Government intends
to take any further steps to revise the training, guidance and
procedures for the treatment of detainees and internees.
8. The Secretary of State, in his reply of 15
June 2007, said he was unable to provide the information we had
"rightly" sought because the legal process concerning
Corporal Payne was not concluded and a review of the lessons to
be learned from the death of Baha Mousa had been commissioned
by the former Chief of General Staff, General Sir Mike Jackson,
and was due to report "shortly".
9. The report of the review referred to by the
Secretary of State, which was carried out by Brigadier Robert
Aitken, was published on 25 January 2008. At the same time, the
Secretary of State announced that the Army Prosecuting Authority
had concluded that there were no further criminal lines of inquiry
in relation to the Baha Mousa case.
The Aitken report concluded that:
The great majority of officers and soldiers who have
served in Iraq have done so to the highest standards that the
Army or the Nation might expect of them, under extraordinarily
testing conditions. There is no evidence of fundamental flaws
in the Army's approach to preparing for or conducting operations:
we remain the envy of our allies for the professionalism of our
Aitken went on to note that "the doctrine, training
and education required to deal specifically with detained civilians
has been comprehensively reviewed", that "measures have
been put in place to ensure that all those involved in prisoner
handling or interrogation are now significantly clearer about
the correct procedures" and "the procedures of the Military
Criminal Justice System are fit for purpose".
10. Aitken did not address the question of why
soldiers in 1 Queen's Lancashire Regiment came to think that the
proscribed conditioning techniques were, in fact, lawful, explaining
that this was an issue to be considered by a subsequent, broader
enquiry. He went
on to set out a number of contextual factors, however. He concluded
it was likely that the prohibition on the use of the conditioning
techniques had been restricted only to Northern Ireland operations
and did not extend outside of the intelligence community.
By 2003, the doctrine in use at the Defence Intelligence and Security
Centre only required prisoners to be treated in line with international
law and did not make specific mention of the five techniques.
"Determining how and when specific direction in 1972 came
to be lost in 2003 would have to be a matter for separate investigation"
11. Aitken also drew attention to deficiencies
in training and guidance for troops. Training packages "described
in detail the manner in which prisoners of war were to be treated,
but made scant mention of the treatment of civilian detainees".
The rules and practices relating to interrogation and tactical
questioning (IT&Q) were "not as clearly articulated"
in 2003 as they are now.
Current policy on IT&Q specifically proscribes the use of
the five conditioning techniques, but this was not spelled out
in guidance on the handling of internees and detainees which has
more general application. Aitken concluded that it was "understandable"
that the contents of the more specific IT&Q policy were "not
widely known throughout the Army".
Aitken also drew attention to the training of some members of
the army in proscribed IT&Q techniques, in order to prepare
them for the treatment they may receive from an enemy. This practice
was discontinued in 2005.
12. The Secretary of State announced on 14 May
2008 that a further inquiry into the circumstances surrounding
the death of Baha Mousa would be held under the terms of the Inquiry
Act 2005. Terms of
reference have yet to be announced.
13. The evidence presented to
the Payne court martial, and accepted by the
Crown, and the findings of the Aitken report would appear to show
techniques such as hooding and the use of stress positioning were
used by some British troops in Iraq, despite such techniques having
been prohibited in 1972;
- the use of
hooding and stress positioning by 1 Queen's Lancashire Regiment
in 2003 was based on legal advice received from Brigade headquarters;
- the prohibition
on the use of conditioning techniques may have been interpreted
narrowly, as only applying to interrogation personnel and to operations
in Northern Ireland;
- at least until
the Baha Mousa case came to light, the prohibition on the use
of conditioning techniques was not as clearly articulated to troops
in Iraq as it might, and indeed should, have been;
- even as late
as January 2008, when the Aitken report was published, the prohibition
on the use of conditioning techniques was not clearly articulated
to service personnel other than those responsible for interrogation;
- until 2005,
interrogation personnel were trained in proscribed techniques,
if only to demonstrate the techniques to which they might be subject
conclusions call into question the evidence we received from Lieutenant
General Brims and which our predecessor Committee received from
the Minister for the Armed Forces. Lieutenant General Brims's
assertion that ordinary troops would recognise that techniques
such as hooding were prohibited is not supported by Brigadier
Aitken's findings or the events surrounding the death of Baha
Mousa. Nor does Mr Ingram's claim that the training of interrogation
personnel took full account of the prohibition on the use of the
five conditioning techniques seem consistent with the facts which
have now come to light.
15. The evidence we received
from Lieutenant General Brims and Mr Ingram formed the basis for
the section of our Report on the UN Convention Against Torture
dealing with interrogation techniques. It would appear that this
evidence was incorrect and that, as a result, we were unable to
give a full account to Parliament of the human rights issues relating
to the use of such techniques.
16. We have yet to receive an
explanation from the Ministry of Defence for the discrepancies
between the evidence given to the Joint Committee in 2004 and
2006 on the use of prohibited conditioning techniques and the
facts which have emerged from the Payne court
martial and the Aitken report. The issues relating to the death
of Baha Mousa are now the subject of a public inquiry.
that, in response to this Report, the Secretary of State for Defence
should confirm we will receive a detailed explanation of the discrepancies
between the evidence to the Committee by Mr Ingram in 2004 and
Lieutenant General Brims in 2006 and the facts which have subsequently
emerged concerning the death of Baha Mousa, as soon as possible
after the conclusion of the public inquiry.
1 Nineteenth Report, Session 2004-05, The Work of
the Committee in the 2001-2005 Parliament, HL Paper 112, HC
552, (hereafter 19th Report 2004-05), Appendix 3. Back
HC Deb, 2 Mar 1972, from c743; and Ireland v United Kingdom, App.
No. 5310/71,  2 EHRR 25, paragraph 102. Back
19th Report 2004-05, Appendix 3. Back
Nineteenth Report, Session 2005-06, The UN Convention Against
Torture (UNCAT), HL Paper 185, HC 701 (hereafter UNCAT Report). Back
Chapter 4. Back
See Articles 1, 2 and 16. Back
Qq 238-39. Back
UNCAT Report, paragraphs 83-85. Back
Transcript of Court Martial proceedings p22 (Major Anthony Royce). Back
Nineteenth Report, Session 2006-07, Counter-Terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning,
HL Paper 157, HC 790, Qq185-240. Back
Daily Telegraph, "Britain's first war criminal jailed for
one year", 1 May 2007, http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/04/30/npayne130.xml Back
MoD press statement, 30 April 2007. Back
Letter from the Chair to the Secretary of State for Defence, dated
22 May 2007 (App 1). Back
Letter from the Secretary of State for Defence to the Chair, dated
24 Jan 2008 (App 18). Back
The Aitken Report, 25 Jan 08, paragraph 44. Back
Ibid, paragraph 16. Back
Ibid, paragraph 19. Back
Ibid, paragraph 20. Back
Ibid, paragraph 21. Back
Ibid, paragraph 24. Back
Ibid, paragraph 22. Back
Letter from the Secretary of State for Defence, dated 14 May 2008
(App 25). Back