3 Complicity in torture
The meaning of complicity
29. Our report, Allegations of UK Complicity in
Torture, was published in August 2009.[24]
We concluded that complicity in torture is a direct breach of
the UK's international human rights obligations, and that, if
the relevant facts are proved, complicity in torture exists where
a state:
- asks a foreign intelligence
service known to use torture to detain and question an individual;
- provides information to a foreign intelligence
service known to use torture, enabling that intelligence service
to apprehend an individual;
- gives questions to a foreign intelligence service
to put to a detainee who has been, is being or is likely to be
tortured;
- sends interrogators to question a detainee who
is known to have been tortured by those detaining and interrogating
him;
- has intelligence personnel present at an interview
with a detainee in a place where he is being, or might have been
tortured; or
- systematically receives information known or
thought likely to have been obtained from detainees subjected
to torture.
30. States are also complicit when they act in these
ways in circumstances where they have constructive as well as
actual knowledge - that is, they should have known of the use
of torture.
31. We pointed out that the Government appeared to
have been determined to avoid parliamentary scrutiny on this issue,
and called on the Government to take a number of steps, including:
- Setting up an independent inquiry
into the allegations about the UK's complicity in torture, without
ruling out the possibility of future prosecutions;
- Publishing all versions of the guidance given
to intelligence and security service personnel about detaining
and interviewing individuals overseas;
- Publishing all relevant legal opinion provided
to ministers; and
- Making the Intelligence and Security Committee
a proper parliamentary committee, with independent legal advice,
and reporting to Parliament not the Prime Minister.
32. Shortly after the publication of the Committee's
Report, on 9 August 2009, the Foreign Affairs Committee raised
very similar concerns about the UK's complicity in torture in
its Report on the FCO Annual Human Rights Report:[25]
We conclude that it is imperative that the UK
fulfils its legal obligations in respect of the prevention of
torture, including any duty to act positively to prevent it, investigate
allegations that it has taken place, and expose it. We further
conclude that there is a risk that use of evidence which may have
been obtained under torture on a regular basis, especially where
it is not clear that protestations about mistreatment have elicited
any change in behaviour by foreign intelligence services, could
be construed as complicity in such behaviour.
33. The Government's Reply to our report on Complicity
in Torture rejected all of our recommendations:[26]
The Government unreservedly condemns the use
of torture and our clear policy is not to participate in, solicit,
encourage or condone torture.
It would not be appropriate for the Government
to comment on whether hypothetical examples would amount to complicity
in torture or the provision of aid and assistance to the commission
of torture. As the evidence before the Committee made clear, such
hypothetical examples are generally not amenable to a straight
yes or no answer in the abstract. Such matters need to be considered
in light of all the facts and circumstances.
With regard to the question of receipt of intelligence,
the suggestion from some quarters that the Government has a policy
of accepting intelligence gained through torture is misleading.
The reality of the situation is that the precise provenance of
intelligence received from overseas is often unclear. However,
we ensure that our partners are well aware that we find the use
of torture unacceptable. The Government's position is that
the receipt of intelligence should not occur where it is known
or believed that receipt would amount to encouragement to the
intelligence services of other States to commit torture.
(Emphasis added)
34. We were struck by the new formulation of the
Government's position in the last sentence of the passage cited
above. As far as we are aware, this goes beyond previous Government
formulations relied on, which have tended to stay at the level
of general assertion, such as that in the first sentence of the
extract cited. The new formulation states the Government's position
in relation to the specific example of receipt of intelligence.
Our view, as stated in our Report, is that the systematic receipt
of intelligence which is known or thought likely to have been
obtained from detainees subjected to torture, or in circumstances
where the use of torture should have been known, amounts to complicity
in torture. The Government's view of what amounts to complicity,
however, is very much narrower. Its view appears to be that receipt
of intelligence obtained through torture only amounts to complicity
"where it is known or believed that receipt would amount
to encouragement to the intelligence services of other States
to commit torture."
35. We sought some clarification about the Government's
apparent change of position on complicity from the Home Office
Minister of State, the Rt Hon David Hanson MP, when he gave oral
evidence to us on 1 December 2009. We thought it appropriate to
ask him because, as the Home Office counter-terrorism minister,
he is accountable to Parliament for the actions of officials of
the Security Service in relation to counter-terrorism. We wanted
to ascertain what the basis is for the Government's position,
in its Reply to our Report, that the receipt of intelligence information
obtained by torture only amounts to complicity where it is known
or believed that receipt would amount to encouragement to the
intelligence services of other States to commit torture. We asked
him whether he agrees with our view, expressed in our report,
that the systematic receipt of intelligence which is known or
thought likely to have been obtained from detainees subjected
to torture, or in circumstances where the use of torture should
have been known, amounts to complicity in torture.
36. We regret to say that we found the Minister's
answers to our questions on this subject unsatisfactory. In response
to each of our questions[27]
about whether different factual scenarios would, in the Government's
view, satisfy the definition of "complicity" in international
law, he repeated the formula that he and the Government "condemn
the use of torture, do not endorse the use of torture, want to
see the eradication of torture, will not support the use of torture
by other regimes passing information to us and want to ensure
that the information that we get has been secured through means
which are supportive of human rights and are supportive of the
non-use of torture."[28]
This was not an answer to the questions we were asking. We
sought the Government's view as to whether a range of different
situations would amount to complicity in torture, as defined in
international law, if the relevant facts were proved. The Government
refused to answer those questions in its response to our Report
and the Minister's evasive replies maintained that refusal. These
important questions therefore remain unanswered by the Government.
37. The Minister did, however, candidly indicate
that the Government was aware that some information which it had
received and acted upon since 9/11 had come from sources of which
it was not aware, and, implicitly therefore, that there was a
risk that such information might have been obtained by torture:
I think it is fair to say, Chairman, that there
will be information supplied to the British Government which potentially
could save lives at certain times in the cycle since 9/11, and
sometimes it is not clear about where that information has originally
derived from. However, I think it is the duty of the Government
to use that information for the protection of British citizens,
while still maintaining … that we believe, overall, that
the use of torture is not a thing that we would support.[29]
38. This acknowledgment by the Minister reflects
similar statements made by the Director-General of the Security
Service and the Home and Foreign Secretaries following the publication
of our report on complicity. In October 2009 the Director General
of the Security Service, Jonathan Evans, addressed the question
of complicity directly in his public lecture Defending the
Realm. The significance of what he says warrants its citation
at length:
We had seen nearly 3000 people killed in the
United States, 67 of them British. We were aware that 9/11 was
not the summit of Al Qaida's ambitions. And there was a real possibility
that similar attacks were being planned, possibly imminently.
Our intelligence resources were not adequate to the situation
we faced and the root of the terrorist problem was in parts of
the world where the standards and practices of the local security
apparatus were very far removed from our own.
This posed a real dilemma. Given the pressing
need to understand and uncover Al Qaida's plans, were we
to deal (however circumspectly) with those security services who
had experience of working against At Qaida on their own territory,
or were we to refuse to deal with them, accepting that in so doing
we would be cutting off a potentially vital source of information
that would prevent attacks in the West? In my view we would have
been derelict in our duty if we had not worked, circumspectly,
with overseas liaisons who were in a position to provide intelligence
that could safeguard this country from attack. I have every confidence
in the behaviour of my officers in what were difficult and, at
times, dangerous circumstances. This was not just a theoretical
issue. Al Qaida had indeed made plans for further attacks after
9/11: details of some of these plans came to light through the
interrogation of detainees by other countries, including the US,
in the period after 9/11; subsequent investigation on the ground,
including in the UK, substantiated these claims. Such intelligence
was of the utmost importance to the safety and security of the
UK. It has saved British lives. Many attacks have been stopped
as a result of effective international intelligence co-operation
since 9/11.
I do not defend the abuses that have recently
come to light within the US system since 9/11. Nor would I dispute
the judgement of the Intelligence and Security Committee, in its
2005 Report on the Handling of Detainees and its 2007 Report on
Rendition, that the Service, among others, was slow to detect
the emerging pattern of US practice in the period after 9/11.
But it is important to recognise that we do not control what other
countries do, that operational decisions have to be taken with
the knowledge available, even if it is incomplete, and that when
the emerging pattern of US policy was detected necessary improvements
were made. And we should recall that notwithstanding these serious
issues, the UK has gained huge intelligence benefits from our
co-operation with the US agencies in recent years, and the US
agencies have been generous in sharing intelligence with us.
To quote the article written earlier this year by
Alan Johnson and David Miliband:
Intelligence from overseas is critical to our
success in stopping terrorism. All the most serious plots and
attacks in the UK in this decade have had significant links abroad.
Our agencies must work with their equivalents overseas... we have
to work hard to ensure that we do not collude in torture or mistreatment.
Enormous effort goes into assessing the risks in each case. But
it is not possible to eradicate all risk. Judgements need to be
made.
That is the reality of the situation: we do not solicit
or collude in torture. We do not practice torture. But we are
operating in a difficult and complex environment.
39. It seems to us that the Minister (in his evidence
to us), the Director General of MI5, and both the Home and Foreign
Secretaries, in their recent public statements, come very close
to saying that, at least in the wake of 9/11, the lesser of two
evils was the receipt and use of intelligence which was known,
or should have been known, to carry a risk that it might have
been obtained under torture, in order to protect the UK public
from possible terrorist attack. This is no defence to the charge
of complicity in torture.
40. We cannot find any legal basis for the Government's
narrow formulation of the meaning of complicity in its Response
to our Report on Complicity in Torture. The Government's formulation
of its position changes the relevant question from "does
or should the official receiving the information know that it
has or is likely to have been obtained by torture?" to "does
the official receiving the information know or believe that receipt
of the information would encourage the intelligence services of
other states to commit torture?" As we made clear in our
earlier report, 'complicity', in the sense used in the relevant
international standards, does not require active encouragement.
The systematic receipt of information obtained by torture is a
form of aquiescence, or tacit consent, and the relevant state
of mind is whether the official receiving the information knew
or should have known that it was or was likely to have been obtained
by torture.
41. The Government's formulation appears to us
to be carefully designed to enable it to say that, although it
knew or should have known that some intelligence it received was
or might have been obtained through torture, this did not amount
to complicity in torture because it did not know or believe that
such receipt would encourage the use of torture by other States.
Guidance on interrogation overseas
42. In March 2009 the Government agreed to provide
the ISC with its guidance to the intelligence services on the
detention and interrogation of suspects overseas. In September,
the ISC expressed its disappointment at the delay in providing
it with the guidance, despite repeated requests, which meant it
could not begin its inquiry. Following the ISC's public criticism,
the Government finally provided the ISC with the guidance on 18
November, a delay of 8 months. The ISC states on its website:
We have been told that this delay was due to
the complex legal nature of these issues, and the need to consolidate
previously separate guidance into one version. The Committee
will consider the material, take further evidence and seek independent
legal advice, before reporting our findings to the Prime Minister.
43. We asked the Minister and his official, Ms Byrne,
a number of questions about exactly what guidance has been provided
to the ISC and in particular whether it has been provided with
unedited versions of all the guidance that existed at the time
of the various allegations of complicity. However, we remained
unclear about whether all of the earlier versions have been provided.
Ms Byrne said, for example (Q32), that "they have all the
sets of material that we were able to give."
44. We therefore wrote to the Minister after our
evidence session asking him to confirm that the ISC has been provided
with all versions of the guidance that were current at the time
of the various allegations of the UK's complicity in torture,
and that nothing had been deleted from those versions of the guidance.
The Minister's response was that "all current versions
of relevant guidance were provided to the ISC in May. These were
then consolidated into a single version which was provided to
the ISC on 18 November 2009".[30]
If all relevant versions were indeed provided to the ISC in May
2009, why would the ISC complain publicly in September that they
had not received the guidance and why was it necessary to provide
a consolidated version in November 2009?
45. We regret to say that, despite the clear intent
of our questions, the Government's answers leave us no clearer
about whether the ISC has been provided with all versions of the
guidance which was current at the time of the various allegations
of complicity, which date back to 2002. We look to the ISC to
provide clarification on this point.
46. It is, however, clear that the Government does
not intend to make public the guidance which was current at the
relevant time to which the various allegations relate. The Prime
Minister, in his evidence to the Liaison Committee, confirmed
that the Government is refusing to publish the earlier guidance.[31]
Asked whether he will make public the guidance which was in place
at the time the complicity in torture was alleged to have taken
place, he said "I would not want to go back in time and publish
previous recommendations. I would want to publish the recommendations
that are going to be in force from now on." He gave no reason
for that refusal, other than to refer generally to the fact that
there are cases about the allegations of complicity being dealt
with at the moment through the courts.
47. We welcome the Prime Minister's commitment
to publish the new guidelines which will be drawn up by the Intelligence
and Security Committee. However, the Prime Minister's statements
on this issue, from his first written statement on 18 March 2009
on, are in the present tense. He draws a clear line between the
new guidance, which will come out of the process that he has set
in motion, and the old guidance, which the Government has decided
not to publish. No convincing justification has been offered for
the decision not to publish the previous guidance. As we have
pointed out before, in the United States, the Obama administration
has put into the public domain significant Justice Department
memos, including legal advice, about matters as sensitive as interrogation
techniques. In our view, there can be no justification for not
publishing the guidelines that were in place at the time the alleged
complicity in torture took place. In order to learn lessons for
the future, as well as to ensure proper accountability for past
wrongs where appropriate, it is essential that the earlier guidance
be published. We also repeat our earlier recommendation that the
relevant legal advice also be made public. The Government has
not convincingly explained what makes the UK different from the
United States, where the legal advice has been published.
The urgent need for an independent
inquiry
48. In our report on Complicity in Torture, we concluded
that, in view of the large number of unanswered questions, there
was 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.[32]
Since the publication of our report, there has been a number of
significant developments which have led to many further calls
for a public inquiry into these allegations about complicity in
torture, both from within and outside Parliament.
49. On 24 November 2009 Human Rights Watch ("HRW")
published its Report, Cruel Britannia: British Complicity in
the Torture and Ill-Treatment of Terror Suspects in Pakistan.
The HRW Report contains accounts from victims and their families
about the cases of five UK citizens of Pakistani origin who were
tortured in Pakistan by Pakistani security agencies between 2004
and 2007. It claims that, while there is no evidence of UK officials
directly participating in torture, UK complicity is clear. It
argues that the UK government was fully aware of the systematic
use of torture in Pakistan, and that UK officials knew that torture
was taking place in these five cases. Some of the individuals
are said to have met UK officials while detained in Pakistan,
in some cases shortly after the individuals had been tortured.
UK officials are said to have supplied questions and lines of
enquiry to Pakistan intelligence sources in cases where detainees
were tortured, and to have put pressure on Pakistani authorities
for results, passing questions and offering other co-operation
without ensuring that the detainees were treated appropriately.
The Report claims that members of Pakistan's intelligence agencies
have corroborated the information from the detainees themselves
that UK officials were aware of specific cases of mistreatment.
50. On 10 February 2010 the Court of Appeal rejected
the Foreign Secretary's attempt to prevent the publication of
seven redacted sub-paragraphs in the judgment of the High Court
in Binyam Mohamed's case.[33]
The paragraphs were immediately published. In our view they represent
strong evidence to suggest that the Security Service was complicit
in the torture of Binyam Mohamed by the US authorities. Sub-paragraph
(ix) states:
We regret to have to conclude that the reports
provided to the SyS [Security Service] made clear to anyone reading
them that BM was being subjected to the treatment that we have
described and the effect upon him of that intentional treatment.
51. The publication of the previously withheld paragraphs
led to a renewed flurry of calls for an independent inquiry into
the extent of the UK's complicity in torture. These calls were
fortified by the suggestion in the Court of Appeal's judgments
that the apparent complicity in Binyam Mohamed's case called into
question the reliability of the Security Services's denials of
allegations that there was a wider problem of the Security Services'
complicity in torture. In particular, the Master of the Rolls,
Lord Neuberger, said in para. 168 of his judgment:
"168. Fourthly, it is also germane that
the Security Services had made it clear in March 2005, through
a report from the Intelligence and Security Committee, that 'they
operated a culture that respected human rights and that coercive
interrogation techniques were alien to the Services' general ethics,
methodology and training' (paragraph 9 of the first judgment),
indeed they 'denied that [they] knew of any ill-treatment of detainees
interviewed by them whilst detained by or on behalf of the [US]
Government' (paragraph 44(ii) of the fourth judgment). Yet, in
this case, that does not seem to have been true: as the evidence
showed, some Security Services officials appear to have a dubious
record relating to actual involvement, and frankness about any
such involvement, with the mistreatment of Mr Mohamed when he
was held at the behest of US officials. I have in mind in particular
witness B, but the evidence in this case suggests that it is likely
that there were others. The good faith of the Foreign Secretary
is not in question, but he prepared the certificates partly, possibly
largely, on the basis of information and advice provided by Security
Services personnel. Regrettably, but inevitably, this must raise
the question whether any statement in the certificates on an issue
concerning the mistreatment of Mr Mohamed can be relied on, especially
when the issue is whether contemporaneous communications to the
Security Services about such mistreatment should be revealed publicly.
Not only is there some reason for distrusting such a statement,
given that it is based on Security Services' advice and information,
because of previous, albeit general, assurances in 2005, but also
the Security Services have an interest in the suppression of such
information."
52. Paradoxically, the case for a wide-ranging inquiry
was forcibly made by the barrister representing the Foreign Office
in the Binyam Mohamed case, Jonathan Sumption QC, in his letter
to the Court of Appeal asking for the first draft of this paragraph
in the draft judgment to be removed. The essence of his objection
was that there is a limit to the extent to which the litigation
of an individual case can lead to credible findings on systemic
issues. Objecting to a part of the paragraph which suggested that
there was an obvious reason for distrusting any UK Government
assurance based on Security Service advice and information, because
of previous 'form',[34]
which Mr. Sumption said constituted an exceptionally damaging
criticism of the good faith of the Security Service as a whole,
he identified a number of questions which would need answering
before the Court was able to make findings as to how systemic
the problem was, for which a much wider inquiry would be needed:
To categorise a problem as systemic is rarely
a straightforward matter. In this case at the very least it would
be necessary to examine the methods and procedures of the Security
Service in relation to the interviewing of detainees as well as
the giving of information and advice to ministers; the basis on
which the statement to the Intelligence and Security Committee
was made, and what further information was provided to them, in
particular about the treatment of detainees; what (if any) other
instances there are of the Services' knowledge of ill-treatment
of the detainees interviewed by them, how information of this
kind is stored, on what occasions it is retrieved, how widely
it is disseminated within the Service and what the Service's response
was. The Court has not been in a position to do any of this. It
simply does not have the material.
53. To the extent that the analysis in the letter
of Jonathan Sumption QC draws attention to the inherent limitations
of litigation as a means of inquiring into a wider systemic problem,
we agree. It powerfully makes the case for an independent inquiry
into these grave matters, which would not be constrained from
looking at the wider issues in the way that the court adjudicating
on Binyam Mohamed's claims inevitably is. In our view, the case
for setting up an independent inquiry into the allegations of
complicity in torture is now irresistible.
24 Twenty-third Report of Session 2008-09, Allegations
of UK Complicity in Torture, HL Paper 152/HC 230 (hereafter
"Report on Complicity in Torture"). Back
25
Seventh Report of Session 2007-08, Human Rights Annual Report
2008, HC 557 at para. 83. Back
26
Government Reply to the Twenty-Third Report of the Joint Committee
on Human Rights 2008-09, Cm 7714 (October 2009), p.3. Back
27
Qs 2-17, Ev 1-3 Back
28
Q2, Ev 1 Back
29
Q15, Ev 3.See, to similar effect, Q3, Ev 1: "we have to look
at these issues in the round; there will be occasions when information
will come to us where we are not, occasionally, aware of the source
of that information"; and Q6, Ev 2: "we will work with
a number of regimes to secure information for the protection of
the Birtish public … we have to look at what the security
of the British public is and what regimes we work with, and there
are regimes, occasionally, that we do not agree with, we do not
support but, ultimately, we also have to work with." Back
30
Letter from David Hanson, 13 January 2010, above n. 10 (emphasis
added). Back
31
Oral evidence taken before the Liaison Committee on 2 February
2010, HC (2009-10) 346-i, Qs 81-83 Back
32
Report on Complicity in Torture, above n. 24, at para. 99 Back
33
R (on the application of Binyam Mohamed) v Secretary of State
for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 (10
February 2010). Back
34
The first draft of the relevant paragraph of Lord Neuberger's
draft judgment (para 168) is set out in full at para 18 of the
Court of Appeal's judgment in R (on the application of Binyam
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
(26 February 2010). Back
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