By Philippe Sands and Alex Bailin
Thursday 18 June 2009 00.00 BST
Courtesy Of The Guardian
Very little is known about Britain's policy on the overseas treatment of detainees by British intelligence personnel after September 11. What is known is deeply troubling. In early 2005 a report by the intelligence and security committee on the handling of detainees by UK intelligence personnel included extracts of instructions sent to British intelligence personnel in Afghanistan.
These require British personnel not to engage in abuse, but they do not require them to intervene to prevent abusive behaviour if they see detainees being treated by others in a manner that does not meet "appropriate standards". In such circumstances, if possible, they need to do no more than consider drawing concerns "to the attention of a suitably senior US official locally".
These instructions are striking for what they do not require: where abuse or torture has occurred or may occur, there is no requirement to prevent it or to disengage from the interview process. This opens the door to complicity in torture: provided that coercion is not "in conjunction with an SIS [MI6] interview", British involvement may continue. Knowledge of prior abuse, or knowledge as to the risk or likelihood of later abuse, would not be a bar to continued British involvement.
One should be cautious about reading too much into an incomplete extract and where there is no information as to the underlying legal advice. But the tenor of this text raises serious concerns. Did the instructions allow crimes to be committed? It seems they may have done so.
Article 4 of the 1984 UN convention against torture, to which the UK is a party, criminalises "an act by any person which constitutes complicity or participation in torture". Parliament's joint committee on human rights has taken evidence on the meaning of "complicity". The English courts have not interpreted Article 4 and any case will turn on its particular facts. But before 2002, when the "instructions" were circulated, international law provided guidance on the standard needed to avoid charges of complicity.
The 1998 Rome statute of the international criminal court extends criminal responsibility where military commanders and civilian superiors "should have known" that international crimes were being committed but "failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission".
The 1984 convention's committee against torture has ruled that there is acquiescence where the police have been informed of an "immediate risk" of abuse and, if present at the scene, did not take steps to protect the victims. In this way, turning a blind eye or failing to take steps to prevent abuse is not enough to avoid liability.
This is consistent with a 1998 judgment by the international criminal tribunal for the former Yugoslavia. Its appeal chamber treated "complicity" as being akin to "aiding and abetting" or "assistance" that could be "physical or in the form of moral support". A crime could be committed even if the abettor did not take any tangible action, provided the actions "directly and substantially" assisted and where there was "knowledge … that torture is being practised". The Appeals Chamber did not mince words:
"if an official interrogates a detainee while another person is inflicting severe pain or suffering, the interrogator is as guilty of torture as the person causing the severe pain or suffering, even if he does not in any way physically participate in such infliction."
In a 2005 House of Lords judgment, Lord Bingham said that "the prohibition of torture requires member states to do more than eschew the practice of torture".
This is consistent with the view recently expressed by Martin Scheinin, the UN special rapporteur on human rights, that "active participation through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where his rights are violated, can be reasonably understood as implicitly condoning such practices".
On these principles it is difficult to avoid the conclusion that the 2002 "instructions" were incompatible with Britain's international obligations. They may have caused British personnel to cross a line into complicity, with responsibility ensnaring ministers who approved a policy which basically said: so long as you don't directly participate in physical abuse you can press on with interviews, passing on questions.
That, presumably, is why the policy changed in 2004, after the Abu Ghraib abuses came to light. And that is why we need a full inquiry on the evolution of the policy: who decided what and when.
Alex Bailin is a criminal barrister at Matrix Chamber
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