Note on an Informal Meeting with REDRESS
and Public Interest Lawyers
Kevin Laue, REDRESS and Phil Shiner, Public
Tuesday 29 April 2008
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
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
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
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
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.