Joint Committee on Human Rights Twenty-Eighth Report


Note on an Informal Meeting with REDRESS and Public Interest Lawyers

Kevin Laue, REDRESS and Phil Shiner, Public Interest Lawyers

Tuesday 29 April 2008

Conditioning Techniques

When the formal meeting was adjourned, Lord Lester had been asking about the 1972 decision in Ireland v UK and how the implications of that decision had failed to filter into any written policy on prisoner handling in the UK military. Phil Shiner considered that the transcript from the Court Martial in Payne & Ors showed that in Iraq, there were about four different candidates for the likely source of army policy on prisoner handling. Col. Baker, Lt. Col. Mercer and others all referred to different sources and some discussed a verbal policy.

Public Interest Lawyers had asked for disclosure of Lt. Col Mercer's evidence in an unredacted form, including exhibits. They have received certain bundles from the Court, subject to an undertaking not to disclose their contents. He considers that this material will be crucial to any new public inquiry. He expects a decision on a public inquiry to be taken by the Government on 6 May 2008. After that time, Public Interest Lawyers may have to go back to the Court to apply for further disclosure of a number of Court Martial and other military documents.

Phil Shiner told the Committee that it was his view that the evidence presented to the Court Martial and the conduct of the Baha Mousa case had shown that there was a frenetic attempt being made by some in the senior civil service on this issue to withhold information (he frankly called this a "cover up"). The circumstances of this case, and the difficulties faced by Public Interest Lawyers have been listed in their letter to the Committee dated July 2007. This letter also lists the potential documents which may include the basis of the prisoner handling policies for Iraq (UNCAT (06-07) 15, previously circulated).

Lord Onslow suggested that the fault lies much higher up, in that it wasn't really thought about before the invasion so there was no cohesive interrogation policy. He asked whether there was a basic "Army Manual" on "how to ask questions". Phil Shiner agreed and told the Committee that it was his view that policy on prisoner handling in Iraq really didn't exist in any coherent form. The real problem was that post invasion, policy was made up on the hoof. Tactical interrogators were and should have been treated differently to ordinary soldiers in Battle Groups. Unfortunately, policy on tactical questioning and prisoner handling was being established at Battle Group level, leading to the establishment of Battle Group Internment Review Officers (BGIRO). Chilling evidence from the Court Martial emerged that even those who were intended to be involved in tactical questioning, were only given 1.25 hours training on prisoner handling (evidence of Davis). Real concerns must be raised when these are the people at the front line being asked to strike an appropriate balance between the need to secure information crucial to the protection of national interests and our troops and the need to respect the dignity, rights and safety of an individual prisoner. The question was whether these people were adequately equipped to answer the question "Is this torture?"

Phil Shiner went on to explain that the failures did not take place only on the ground, but that there had been a complete failure to plan adequately for occupation in Iraq. Lt. Col. Mercer thought the UK had failed to plan effectively as they thought that the field of operation in Iraq would be effectively filled by the UN. UK troops were trained and prepared for war fighting, not the minutiae of occupation. After a short time, our troops were not fighting in the traditional sense, but were essentially tasked with running a country. Troops were running on 2 hours sleep and asking "Where's the FCO?" or "Where's DFID?"

Phil Shiner told the Committee that senior army officers should not be allowed to blame the Government infrastructure for failure to plan and civil servants should not be allowed to get off the hook by pointing fingers at army training and implementation. A series of failures led to our troops being ill-prepared and the ultimate ill-treatment and torture of Iraqi civilians.

Neither Mr Shiner or Mr Laue had any evidence that UK armed forces were aware of the use of waterboarding, by the US.

Kevin Laue directed the Committee to the Fenton Report, a preliminary Report by a senior officer on the death of Baha Mousa. It is very short, only 3 pages, and in the public domain thanks to the Freedom of Information Act. It gives no clear answer on who was responsible for prisoner handling, brigade group staff or tactical questioners. It clarifies that battle group personnel were being encouraged to undertake tactical questioning. However, this Report was unable to identify the authority for tactical questioning or the techniques used. It is clear from that document that there was confusion over who was doing what to whom, and under what authority.

It is the opinion of Redress that this issue is central to the need for a full, independent public inquiry. During the course of the Court Martial, days were spent trying to figure out what the orders were and where they were coming from. They consider it difficult to understand how any inquiry run by the military in a military setting could be - and be seen to be - objective. The military were clearly involved in the giving of the orders, so they cannot be independent.


Phil Shiner told the Committee that he could lay responsibility for many failings on a lack of training, not only on prisoner handling but training on how senior officers ensure that their troops understand when and how legal standards apply to their work. He considered that the failings on the part of legal and medical army professionals were particularly stark. These lawyers and doctors were subject to professional obligations and seemed to have failed utterly to meet them: they did not draw attention to applicable legal or medical standards. Medics were certifying people as fit for conditioning. For example in Baha Mousa's case, the doctor in charge noted only one injury and a small piece of blood under his nose. Photographs of his body have since emerged which are horrific. The post mortem shows he had 93 separate injuries. It is very unlikely that in the course of his detention, the relevant medical staff couldn't have noticed what was going on. A complaint has been lodged with the GMC by Public Interest Lawyers, on behalf of Baha Mousa's family.

Mr Shiner had doubts whether military training would now be adequate to ensure compatibility with the UK's international human rights obligations. He explained that the behaviour and training which had been publicised had been so inadequate and the military was so closed to scrutiny that he was unsure whether the system would be open to significant voluntary change. The Aitkin Report was not sufficient to prompt more effective change; independent scrutiny by a public inquiry was required.

Kevin Laue told the Committee that there was clear evidence on the Court Martial transcripts that the use of hooding and stressing at least was widespread. There was a strong suggestion that, prior to 2003, the use of these techniques had been included in training for tactical questioners. However, the real problem was, that no-one knows about the policy or the training. It is clear from the Aitken Report, that the official policy remains to keep these matters confidential (see Page 13). We don't know what was happening prior to 2003 and we don't know what is happening now.

When looking at the treatment of internees or detainees, it is important to draw a distinction between two groups: (a) ordinary troops, staff of the battle groups, who were not intelligence personnel, but who were "roped into" conditioning, and whose job it was to "soften up" the detainees (note that Baha Mousa was never questioned - he died first); and (b) Tactical Questioners, who were intelligence personnel. The evidence before the Court Martial showed that it was very difficult to ascertain what training, if any, either group had had in prisoner handling. Two facts on training are clear: (a) all troops had some very basic training on the requirements of the Geneva Convention and (b) at some point, the Heath ban of the five techniques was "lost".

Legality: Application of ECHR and UNCAT

Lord Onslow asked if they agreed with the Government that mistreatment of detainees by British troops abroad was already illegal under the Geneva Convention and domestic law, so that the ECHR and HRA provided no new protection to detainees.

Phil Shiner said mistreatment would also be in clear breach of other laws. While the Geneva Convention lacked an enforcement mechanism, the requirements of the ECHR called for an inquiry. He agreed that breaches of the Geneva Convention were against military law. But it too was ineffective whereas the ECHR added the requirement for prompt, effective inquiry into mistreatment as well as death and gave the prospect of accountability. So the applicability of the ECHR/UNCAT is all about an enforcement mechanism, which the Geneva Convention lacks.

Lord Onslow observed that military law was always subservient to civil law. Andrew Dismore said that if the ECHR had not been held to apply in Iraq there would have been no inquest. Phil Shiner said that when Lt. Col. Mercer started to complain and demand the highest standards he was rebuked by Rachel Quick. Lord Goldsmith later said that he was only dealing with the applicability of procedural standards because that was all that Mercer was raising, but in fact Mercer was complaining about substantive as well as procedural breaches. It is a matter of public record that the Attorney General was advising on the legality of detention standards from 26 March 2003. On 29 March 2003, Lt Col. Mercer began raising substantive breaches such as the hooding of detainees in full sun. At this stage the question is, did the Permanent General HQ go back to the Attorney General and ask for further advice? If not, was this failure negligent? If they did, what was his advice? Only an independent inquiry can establish if conditioning techniques of that kind had been condoned.

Kevin Laue said that if the ECHR applied in Iraq so must UNCAT. The Government said there was no need for it to apply in detention centres in Iraq, because it has implemented its obligations under UNCAT through the prohibition on torture in the Criminal Justice Act 1998. This was disingenuous because UNCAT gives rise to more obligations than the simple prohibition in Article 4, and wider obligations than the requirements of the ECHR, e.g. the obligation to take preventative measures and to ensure that victims get proper reparation. It was important to keep trying to find out why the Government kept saying that UNCAT was not needed. Phil Shiner agreed that UNCAT made a big difference. For example, in Al-Skeini, the Court held that Convention rights under the HRA would apply only when an individual was in detention, so not on the streets of Basra or in the back of a van.. Its reasoning was based principally on the regional nature of the ECHR. By contrast, UNCAT is an international agreement which requires systematic review of interrogation under any form of arrest (Article 11). It is difficult to see how UNCAT couldn't add significantly. The Government's position that it did not apply in Afghanistan or Iraq was extraordinary.

The Chair asked about evidence of detainees being transferred from UK control to other countries, for torture or inhumane treatment. Phil Shiner said there were examples in Afghanistan and Iraq. In the Al-Sweady, case five survivors detained in May 2004 were handed over to the Iraqis in October. In Afghanistan the British Government appeared to think that the ECHR obligation not to transfer where there was a real risk of torture did not apply if no international boundaries were crossed. Lord Bowness asked what the British could do if they captured Saddam Hussein: could they have handed him over to either the Iraqis or the US? Phil Shiner explained that under the ECHR, the UK would have been obliged not to hand him over if it knew he would be subject to the death penalty.

The Chair asked if the UK's National Preventive Mechanism under the Optional Protocol to UNCAT covered military detention facilities. Phil Shiner said yes. It certainly would if the jurisdiction of UNCAT were coterminous with that of the ECHR, as he was sure a court would rule. Andrew Dismore asked if UNCAT, by contrast with ECHR, also applied in the back of a van as well as in military detention facilities. Phil Shiner said that it did, as he would argue in a new case.

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