Conclusions and Recommendations
1. There
is […] no room for doubt, in our view, that complicity in
torture would be a direct breach of the UK's international human
rights obligations, under UNCAT, under customary international
law, and according to the general principles of State Responsibility
for internationally wrongful acts. (Paragraph 27)
2. We
[…] conclude that complicity has different meanings depending
on whether the context is individual criminal responsibility or
State responsibility:
- for the purposes of individual
criminal responsibility for complicity in torture, "complicity"
requires proof of three elements: (1) knowledge that torture is
taking place, (2) a direct contribution by way of assistance that
(3) has a substantial effect on the perpetration of the crime;
- for the purposes of State responsibility for
complicity in torture, however, "complicity" means simply
one State giving assistance to another State in the commission
of torture, or acquiescing in such torture, in the knowledge,
including constructive knowledge, of the circumstances of the
torture which is or has been taking place. (Paragraph 35)
3. We
agree with Professor Sands's view, that if the Government engaged
in an arrangement with a country that was known to torture in
a widespread way and turned a blind eye to what was going on,
systematically receiving and/or relying on the information but
not physically participating in the torture, that might well cross
the line into complicity. (Paragraph 41)
4. Systematic,
regular receipt of information obtained under torture is in our
view capable of amounting to "aid or assistance" in
maintaining the situation created by other States' serious breaches
of the peremptory norm prohibiting torture. We therefore consider
that, if the UK is demonstrated to have a general practice of
passively receiving intelligence information which has or may
have been obtained under torture, that practice is likely to be
in breach of the UK's international law obligation not to render
aid or assistance to other States which are in serious breach
of their obligation not to torture. (Paragraph 42)
5. It
follows from the above that, in our view, the following situations
would all amount to complicity in torture, for which the State
would be responsible, if the relevant facts were proved:
- A request to a foreign intelligence
service, known for its systemic use of torture, to detain and
question a terrorism suspect.
- The provision of information to such a foreign
intelligence service enabling them to apprehend a terrorism suspect.
- The provision of questions to such a foreign
intelligence service to be put to a detainee who has been, is
being, or is likely to be tortured.
- The sending of interrogators to question a detainee
who is known to have been tortured by those detaining and interrogating
them.
- The presence of intelligence personnel at an
interview with a detainee being held in a place where he is, or
might be, being tortured.
- The systematic receipt of information known or
thought likely to have been obtained from detainees subjected
to torture. (Paragraph 43)
6. We
note that the Foreign Affairs Committee was able to question the
Foreign Secretary on a range of issues associated with torture
and shed some light on matters we have only been able to explore
in writing, as part of its wider inquiry into international human
rights issues. This calls into question the reasons why the Foreign
Secretary (and the Home Secretary) should refuse to give oral
evidence to us. (Paragraph 52)
7. We
fully accept that intelligence co-operation is both necessary
and legitimate in countering terrorism, and that a degree of state
secrecy is justifiable in this area. However, there must be mechanisms
for ensuring accountability for such co-operation. The allegations
we have heard about possible UK complicity in torture in Pakistan,
the evidence which has emerged during the legal proceedings brought
by Binyam Mohamed and the allegations by Craig Murray that the
UK knowingly received evidence derived from torture are all extremely
serious matters for which Ministers are ultimately accountable.
Our experience over the last year is that Ministers are determined
to avoid parliamentary scrutiny and accountability on these matters,
refusing requests to give oral evidence; providing a standard
answer to some of our written questions, which fails to address
the issues; and ignoring other questions entirely. Ministers should
not be able to act in this way. The fact that they can do so confirms
that the system for ministerial accountability for security and
intelligence matters is woefully deficient. (Paragraph 56)
8. We
urge Members of the House of Commons regularly to take the opportunity
to debate the membership of the ISC, to help ensure that the Committee
is subject to frequent scrutiny. (Paragraph 59)
9. The
missing element, which the ISC has failed to provide, is proper
ministerial accountability to Parliament for the activities of
the Security Services. In our view, this can be achieved without
comprising individual operations if the political will exists
to provide more detailed information to Parliament about the policy
framework, expenditure and activities of the relevant agencies.
The current situation, in which Ministers refuse to answer general
questions about the Security Services, and the Director General
of MI5 will answer questions from the press but not from parliamentarians,
is simply unacceptable. (Paragraph 65)
10. A
good first step would be for the Government to propose to establish
the ISC as a proper parliamentary committee, with an independent
secretariat (including independent legal advice), which would
establish ministerial accountability to Parliament in this area
at a stroke. The recent allegations about complicity in torture
should be a wake up call to Ministers that the current arrangements
are not satisfactory. We look to the Government to respond positively
to this suggestion and not to continue to hide behind a wall of
secrecy. (Paragraph 66)
11. We
are concerned that the narrow remit of the Investigatory Powers
Tribunal precludes investigation of individual complaints, where
complainants are reluctant through fear for their safety or otherwise
to approach the Tribunal directly, as well as of systemic issues,
where a series of complaints suggests that there are wider problems
with the policy or operations of the security services. (Paragraph
70)
12. The
ISC's letter on alleged complicity in torture has yet to be published,
over four months after it was submitted to the Prime Minister.
We urge the Prime Minister to make its contents public, with the
minimum of redaction, as soon as possible. (Paragraph 73)
13. We
welcome the Government's decision to consolidate and publish guidance
to security services' personnel on work in detention and interrogation.
We also welcome the Prime Minister's statement that redaction
prior to publication will be kept to a minimum. (Paragraph 75)
14. We
recommend that the Government clarify whether the Government or
the ISC will be revising existing guidance as part of the consolidation
and review process. We also recommend that the Government should
release earlier versions of the guidance, subject to any necessary
redaction. (Paragraph 76)
15. We
welcome the appointment of Sir Peter Gibson to monitor compliance
with Government guidance to security services' personnel on detention
and interrogation issues. We call on Sir Peter to ensure that
he publishes as much information as possible on his work in this
area in his annual reports, which we look forward to scrutinising.
(Paragraph 77)
16. We
recommend that the Government publish immediately all versions
of the instructions/guidance given to intelligence officers and
security service personnel concerning the standard to be applied
in relation to the detention and interviewing of detainees overseas,
including the current draft being considered by the Intelligence
and Security Committee, to ensure that it fully and correctly
reflects the UK's human rights obligations. (Paragraph 87)
17. We
do not accept, in this instance, that it is "in the interests
of good governance" for the Government to refuse to waive
its legal professional privilege by publishing the relevant legal
advice. On the contrary, we consider that good governance demands
it and that the Government's invocation of legal professional
privilege is another disappointing example of resort to state
secrecy to prevent proper parliamentary and public scrutiny of
an issue of great public concern. (Paragraph 93)
18. We
call on the Government to follow the American example by immediately
putting into the public domain all relevant legal opinions provided
to ministers. These should include any opinions concerning the
relevant legal standards on torture and complicity and the implications
of those legal standards for the Government's policies on the
use of information which may have been obtained by torture and
the sharing of information with foreign intelligence services.
They should also include any relevant opinions concerning Article
4 UNCAT and the general principles of state responsibility for
complicity. (Paragraph 96)
19. In
view of the large number of unanswered questions, we conclude
that there is now no other way to restore public confidence in
the intelligence services than by setting up an independent inquiry
into the numerous allegations about the UK's complicity in torture.
(Paragraph 99)
20. We
recommend that the independent inquiry which is set up to investigate
allegations of UK complicity in torture should also be required
to make recommendations about improving the accountability of
the security and intelligence services, and removing any scope
for impunity, having regard to the recommendations recently made
on this subject by bodies such as the UN Special Rapporteur, the
Eminent Jurists Panel of the International Commission of Jurists,
and the Council of Europe. (Paragraph 101)
21. We
also recommend that any inquiry should also look into whether
there was any connection between the UK Government's controversial
view of the limited territorial scope of application of UNCAT
on the one hand and the adequacy of its guidance to its intelligence
and security operatives on the other. (Paragraph 102)
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