UK government is told stance on torture has no legal basis

MPs and peers brand government’s definition of complicity in torture as ‘worrying’ and call for urgent independent inquiry

Former Guantánamo Bay detainee Binyam Mohamed, whose alleged abuse in captivity sparked an inquiry into UK government complicty in torture. (Reuters)

The government’s definition of what constitutes complicity in torture has no basis in law, parliament’s joint committee on human rights warns today in a hard-hitting attack on its attitude towards the abuse of terror suspects.

Its narrow definition of complicity is “significant and worrying” and in light of evidence, notably in the Binyam Mohammed hearings, the case for an urgent independent inquiry into claims of involvement in torture is irresistible, the committee says in a report.

It says ministers gave evasive replies when it asked them what would amount to complicity under international law. But in evidence to the committee and in public statements both the home and foreign secretaries, and the head of MI5, came “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”.

The report adds: “This is no defence to the charge of complicity in torture.” The government changed the 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?”

Under international law complicity does not require active encouragement, the committee says. The formula used by the government “appears to us to be carefully designed to enable it to say that, although it knew or should have known some intelligence it received was or might have been obtained through torture, this did not amount to complicity because it did not know or believe such receipt would encourage … torture by other states”.

Lady Manningham-Buller, the former head of MI5, appeared to go further in a speech this month: “Nothing, even saving lives, justifies torture.”

What constitutes complicity in torture and cruel, inhuman or degrading treatment is a key issue behind Gordon Brown’s refusal to publish new guidance given to MI5, MI6, and military intelligence officers, operating abroad.

Brown has also declined to publish criticism of the guidance by the Intelligence and Security Committee (ISC), whose members are handpicked by the prime minister.

Michael Mates, the senior Conservative on the ISC, told the Commons last week: “Torture is absolutely out … However, there are degrees of [cruel, inhuman or degrading treatment] and it is not clearly defined in law, which gives everybody a problem.”

He said the position was not helped by “the lack of any legal definition in UK law of complicity”.

In their report today, the committee members say that ,”paradoxically”, the case for an inquiry into the UK’s role in torture was made by the government’s own senior lawyer, Jonathan Sumption QC, when he wrote to the court of appeal to warn that it could not conclude that the Binyam Mohamed case revealed “systemic” problems at MI5.

They conclude that the letter “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”.

The committee adds: “In our view, the case for setting up an independent inquiry into the allegations of complicity in torture is now irresistible.”

The committee also calls for the publication of the official guidance to intelligence officers interrogating suspects overseas that was in place in 2002 and following years – the period when abuse is known to have occurred- as well as the new, revised, guidelines.

The report says parliament still did not have the information it needed properly to evaluate whether the power to detain terrorism suspects pre-charge for up to 28 days continued to be necessary.

It adds that a thorough independent review should be conducted of the pre-charge detention of all those individuals who were arrested in relation to the Heathrow airline plot and detained without charge for more than 14 days.

The government had still not given up on the possibility that pre-charge detention may be extended to 42 days, it says. A draft bill exists that would be introduced if and when the need arises. The bill should be withdrawn and if it were enacted, it would be likely to be in breach of the European human rights convention in the absence of a derogation from it.

Richard Norton-Taylor and Ian Cobain
Thursday 25 March 2010

Source: The Guardian

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.