Phil Shiner | ukwatch.net

Unlawful Combat

Ellie Keen — Wed, 09 Apr 2008 02:44:54 +0000

The Guardian's Seumas Milne reports on a secret framework agreement between the Iraqi and US governments that would authorise the US (and thus, by implication, other coalition forces - including the UK) to "conduct military operations in Iraq and to detain individuals when necessary for imperative reasons of security" without time limit. This agreement would replace the existing UN mandate from various security council resolutions, starting with resolution 1546 from 8 June 2004. The question arises as to whether any of this is lawful within international law.

The answer could not be clearer. It is not lawful, for two main reasons. First, there is the question of attributability. In the House of Lords in December 2007 in the al-Jedda case the UK lost an argument that in Iraq, because there was a UN mandate provided by resolution 1546, all the actions of UK forces were attributable to the UN and not the UK. The Lords distinguished the mandate in Iraq from that in Kosovo (the government relied on the Behrami case where the grand chamber of the European court of human rights had held that the actions of troop contributing nations in Kosovo were, for different reasons, attributable to the UN). However, under this framework agreement there would be no UN mandate, and so there could be no doubt that the actions of the US and UK would be attributable to the individual states.

Second, there is the question of jurisdiction. In the al-Skeini case (which included the case of Baha Mousa, who was brutally killed in a UK detention facility) of June 2007, the Lords also held that the Human Rights Act 1998 and the European convention on human rights (ECHR) did apply to UK detention facilities. Thus, there is jurisdiction for the purposes of article 1 of the ECHR. By implication there would also be jurisdiction for the purposes of article 2 of the international covenant on civil and political rights (ICCPR). Article 5 of the ECHR provides for no detention without due process. Article 9 of the ICCPR is in similar terms. The former applies to the UK and European coalition partners. The latter applies to the US too (leaving aside its successful efforts to render its ICCPR obligations unenforceable). Thus, internment "for imperative reasons of security" by the US and others is in fundamental breach of these rights, that is, in breach of international human rights law.

Thus, if the US and UK have jurisdiction, as they certainly do in a detention facility, they cannot intern under this framework agreement. Even if there were to be a security council UN mandate, it is extremely doubtful whether a UK court, or the European court of human rights, would allow such a fundamental right as that protected by article 5 of the ECHR to be displaced in this way. Without a mandate, it is completely out of bounds.

The Iraqi government should refuse to sign any such agreement as it is in flagrant breach of international law - and of Iraqi law, which provides for no detention without due process by article 37 of the new Iraqi constitution.

It is understood that the US and UK find compliance with international law hugely inconvenient. However, we should not allow our governments to sign up to this framework agreement, and neither should the Iraqi government or Iraqi civil society have anything to do with it.

Atrocity Exhibition

Ellie Keen — Sat, 01 Mar 2008 13:52:31 +0000

Writing about torture in the Guardian, Philip Zimbardo emphasises systemic issues in explaining how "ordinary people could be led to behave in ways that qualify as evil." His context is images, many previously unseen, of "documented depravity and dehumanisation" by US soldiers of Iraqis at Abu Ghraib.

He is absolutely right to emphasise systemic issues, and it is important for the British public in that context to understand two points about the UK's detention policy in Iraq. The first is the massive similarities between the insights these images give into human rights violations in US detention facilities and the publicly available evidence as to violations of Iraqis' most fundamental of human rights in UK detention facilities. The second is to understand the source and nature of the systemic failings within the UK's policy.

The Abu Ghraib images depict [disturbing content] male Iraqis forced into sexual positions with one another, into simulated oral sex, being threatened by soldiers' punches or of US soldiers alongside what are either badly abused or dead Iraqis. Most UK citizens seem to believe that we would never do such things. Nothing could be further from the truth. The photographs from the Camp Breadbasket court martial show male Iraqis forced by UK soldiers to simulate anal and oral sex with one another.

In the incident that led to the death of Baha Mousa, UK soldiers flushed dirty toilet water over male Iraqis. Later, at the military facility, they photographed each other punching hooded detainees, some of whom were threatened with execution. One was offered release in exchange for sex with his sister.

The litany of sexual and religious humiliation is endless. There appears to be no material difference between the two forces, US and UK, when it came to degrading treatment. Worse still, there are now witness statements prepared for UK High Court proceedings by myself and my colleague Martyn Day, which suggest that, in May 2004, UK soldiers in Abu Naji facility may have executed up to 20 Iraqis, tortured another nine, and subjected some of the 20 dead to unspeakable atrocities before final dispatch.

The systemic failings that underpin these violations go to the top of government, the civil service and the military. We had a written policy allowing stressing and hooding, and our interrogators were trained to do so. Scores of Iraqis now complain of torture, abuse, and killings in UK detention facilities.

When the Head of Army Legal, Nicholas Mercer, blew the whistle on hooding, stressing and the use of noise in March 2003 - and, in May, complained of a "number" of Iraqi deaths in custody with "various units in theatre" - he was rebuked, ridiculed and overruled. The civil servants at Permanent Joint HQ knew but did nothing, telling themselves, for example, that the ban on the five techniques from Northern Ireland in 1972 (hooding, stressing, sleep deprivation, food and water deprivation and noise) only applied to the UK and Northern Ireland. Nobody seemed to have recognised that what was happening breached every possible humanitarian and human rights provision, including the European Convention on Human Rights (which was held by the House of Lords in June 2007 to apply).

The next time you see these images, just remember what UK forces did in our name. We must face up to this national disgrace.

A Catalogue of Abuse

Tim Holmes — Fri, 19 Oct 2007 14:43:22 +0000

What will it take for our government to face the awful facts of British detention policy in Iraq? Evidence now publicly available proves that UK forces had a systematic policy that led to the execution of scores of Iraqis in detention, and the torture of countless more. But most people remain blissfully unaware of the truth, while the government chooses to ignore it. It seems that it is too painful for the nation to recognise that what we did in Iraq is no more than what we have always done in times of conflict, and that an arrogant, brutal racism that harks back to colonial times requires urgent exorcism.

The starting point in understanding what we have to confront is the repeated accusation from the most senior military figures that Britain failed to plan for the occupation. It was assumed that the United Nations would be responsible because the security council would authorise military invasion and occupation in early 2003. When it refused, the US and UK invaded illegally and found themselves with no plan for occupation. Britain made up policy on the hoof - with deadly consequences. To make matters worse, our detention policy reflected our partnership with the US, who ran detention facilities with us. When Lieutenant Colonel Nicholas Mercer, the army's senior legal adviser at the start of the occupation, complained to senior civil servants and others about hooding, stressing and the use of noise (all authorised techniques amounting to torture), he failed to get the policy changed partly because the US considered our interrogation techniques too soft.

Our current detention policy includes the reintroduction of the five techniques banned by the Heath government in 1972: hooding, stressing, sleep and food deprivation, and noise. These techniques are a direct breach of the Geneva conventions and the UN convention against torture. Nobody in the chain of command, including at the highest level politically and within the civil service, attempted to bring our policy into line with basic legal standards even when they were told what was happening, by the Red Cross among others. And there were no command structures in place to inhibit the average soldier, who was expected to operate all the functions of central and local government in temperatures of up to 60C, without any training whatsoever in prisoner treatment.

It is no wonder that senior military figures seek to place the blame for the horrors of our detention policy on those in political command. While individual criminal culpability for these atrocities cannot be escaped, it is easy to see why the military felt so let down.

The public are not meant to know too much, as evidenced by the desperate, but ultimately unsuccessful, attempt to block my team's access to the documentation from the court martial into the case of Baha Mousa, who died with 93 separate injuries while in British custody in September 2003. However, what is already in the public domain should be more than enough to cause outrage. We now have to confront the Amara incident in May 2004, as reported in yesterday's Guardian. It appears that 22 Iraqis were taken into detention alive, only to be returned in body bags 20 hours later.

But worse still, the evidence suggests a catalogue of abuse: first, that soldiers had earlier executed Iraqis in front of a number of witnesses; second, some of them were executed by shooting at close range or strangulation; third, many of the bodies show clear evidence of torture; fourth, bodies had been mutilated with eyes gouged out, and multiple stab wounds and body parts severed (including a penis); and fifth, trained Iraqi medical operatives attest that many of the wounds were fresh and that deaths had occurred just before the bodies were returned. A survivor's statement gives shocking evidence of hearing the screams of Iraqis being tortured, and hearing one of my client's relatives executed by shooting.

The government's response is pathetic. It asserts that a military investigation (held, of course, in secret) concluded in May 2005 that there was no evidence of criminal wrongdoing and that all the deceased died of injuries sustained before detention. This is consistent with the decision of the present foreign and defence secretaries to shut their eyes to this evidence of systematic abuse and worse. My offers to show the foreign secretary this new evidence were ignored. The defence secretary ignores correspondence from various Christian churches and their leaders to open these matters up to public scrutiny.

Both prefer to rely on the advice of civil servants, despite it being obvious that it is the senior civil service that has most to lose. What makes this response so utterly depressing is that they have deluded themselves into believing that their response is justified. Ultimately, whether those responsible, including those who inhabit the shadowy corridors of power, are held accountable seems to depend on the response of the public to this evidence.

· Phil Shiner is a solicitor at Public Interest Lawyers, which acts for all the victims mentioned above

phil_shiner@publicinterestlawyers.co.uk

A Deliberate Torture Policy

Alex Doherty — Thu, 14 Jun 2007 13:03:27 +0000

The House of Lords yesterday put an end to this government's shameful efforts to shirk responsibility for multiple acts of torture and abuse - sometimes fatal - of Iraqi civilians detained during the occupation of their country. The Lords held by a four-to-one majority that the Human Rights Act and the European Convention on Human Rights did apply in south-east Iraq in detention cases, including that of Baha Mousa, who died in British military custody in September 2003 after sustaining 93 separate injuries. Following yesterday's damning verdict, there must now be a full, independent and public inquiry.

It is now clear that Britain went into Iraq with a written policy allowing hooding, which reflected verbal and written Nato policy. This despite the fact that, three decades earlier, in 1972, the Heath government had banned hooding, along with other interrogation techniques used in Northern Ireland, including stressing and sleep deprivation. Ahead of the war in Iraq, British interrogators and tactical questioners had been trained in all these methods, and they were used by all battle groups.

In temperatures that rose as high as 140F, hooding could involve up to three sandbags or even old plastic cement bags. It wasn't primarily about security - the 11 Iraqis in the Mousa incident were introduced into the camp without hoods - but reflected a policy of prolonging the shock of capture: keeping detainees fearful and vulnerable prior to interrogation.

Not even an appeal by the army's senior legal adviser in Iraq could derail the appalling policy on torture. In March 2003 Nicholas Mercer wrote to his bosses objecting to the hooding techniques, but was sharply rebuked. He was told that the attorney general had advised that the Human Rights Act did not apply but much lower legal standards did, and that if he thought he knew better he should apply for the attorney general's job.

A trail of obfuscation and cover-up has emerged. There are 146 photographs showing the 93 injuries sustained by Mousa and the multiple injuries to the others. The Guardian published a photograph of Mousa's severely beaten face in April. But unbelievably, and in complete contradiction of fundamental medical standards, the doctor in charge told the court martial he saw only a single injury, a "small trace" of dried blood around Mousa's nose. Although the injuries to another man were so severe that he nearly died from acute renal failure, this was diagnosed as "a muscular injury". Another medic apparently asked for a performance of "the choir" (when the men were kicked in turn and gave out different howls) and found it very funny.

The plain fact is that our behaviour towards detainees was no different from that of the US and, indeed, reflected US policy. At some point the 1972 ban was conveniently lost. All relevant policy documents must now be published, along with the attorney general's guidance and a full explanation as to whether he was ever told of the operational implications of his advice to apply legal standards in defiance of the UN convention against torture.

And what of those politicians at the top table? They knew what was happening, or at very least ought to have known. They must now face up to this shameful evidence, and be called to account. At the same time they need to listen to those of us in the human rights community who want to strengthen our military by ensuring that, when it comes to winning hearts and minds, our services and our nation cannot afford ever to be disgraced again by another Mousa incident. Is that too much to ask of our military and political leaders?

*Phil Shiner is a solicitor acting for the family of Baha Mousa and other civilians tortured and killed in Iraq*
*phil_shiner@publicinterestlawyers.co.uk*

Torture Coverup

Alex Doherty — Mon, 23 Apr 2007 12:18:17 +0000

Images of the battered, bloodied, bruised face of Baha Mousa, tortured to death while in detention with British troops under the Iraq occupation, should have shocked the nation when they appeared last week. Instead, most media outlets chose to ignore them. By comparison, when Canadian troops meted out similar treatment to a prisoner in Somalia in the 1990s, the result was a five-year public inquiry and spring-clean of the military justice system. What is going on?
To answer that question is to dig into what was described as a cover-up by the judge advocate at the conclusion of the court martial into the incident. What follows arises from publicly available material, most of it in the House of Lords case, which finishes tomorrow, into whether the Human Rights Act applied to protect Mousa and others. There are four clusters of issues we have to face.

First, the incident led to more than just a single death. Photographs and medical evidence show our troops nearly killed another civilian, and badly injured five others. The judge found that a group of soldiers had engaged in systematic torture and humiliation, but none had been charged because of an "obvious closing of ranks". Who were the torturers?

Second, the torture included the use of four techniques banned by the government in 1972: hooding, stressing and sleep and food deprivation. And it was not just one rogue battalion, 1st Queen's Lancashire Regiment (QLR), but others. Further, we are asked to believe that only a single battalion relied on senior brigade legal advice, which said it would not be breaching international humanitarian law to hood and stress civilian detainees. Is this credible?

Third, the facility where Mousa and others were tortured was small. The soldiers' shouting and detainees' screaming were audible to anyone on the site. So, who are those in command who knew, or ought to have known, what was going on in the critical 36 hours before Mousa's death? Even more potentially damning to the chain of command responsibility, who knew, or ought to have known, of the complete breakdown in the system of training troops? There was a failure to train troops to observe the law and also, it seems, to teach them the basic principles to enable them to fulfil their role.

The evidence on the training of tactical questioners is striking. They have an important balance to strike. They need to obtain evidence from detainees that may, for example, save the lives of our troops. And they must do so without using torture or ill-treatment. This is about prisoner handling. The evidence shows the tactical questioners in the Mousa incident had precisely 1.25 hours training on this. Further, those responsible did not ensure that rules of engagement appropriate to an occupation, not a war, were promulgated to reflect the change for 10 weeks. There is a risk that during this period our troops were following the wrong rules.

The final cluster of issues is where it starts to get really ugly. What are we supposed to make of material that shows it was standard to refer to Iraqis as "Ali Babas"? Or of military operations that had similar racist connotations from an earlier era? Or material that indicates a remorseless disregard of Iraqis' human rights, which dehumanised them in the eyes of the troops who were supposed to protect them? When our troops were supposed to be exercising policing functions, we appear to have shot first and asked questions later.

Uncomfortable questions about our complicity in war crimes with the US also lurk beneath the surface. The evidence from prosecution witnesses in the court martial shows that the US was putting pressure on us to adopt its interrogation techniques.

Consider that the facility involved in the Mousa incident was in the middle of an urban area and the abuse occurred in broad daylight. By comparison, our theatre internment facility, Camp Bucca in southern Iraq, was in the middle of nowhere. But the government claims the US ran Camp Bucca. The evidence in the court martial is clear. We had two compounds for UK detainees, they had six. We had jurisdiction over UK detainees who were subject to questioning by our tactical questioners. So why the blatant denial of responsibility where it is obvious the UK did have jurisdiction? The MoD admitted in 2004 that six other Iraqis had died while in detention with British troops, and we know all British detainees were taken to Camp Bucca until Christmas 2003. We also know that US forces killed Iraqis during "riots" at the facility and that three US soldiers were discharged in 2004 after being found guilty of abusing prisoners. If Mousa died in our custody where he did, what was happening in the British section of Camp Bucca?

Most of this iceberg of disgrace will remain hidden unless there is an independent and public inquiry. What is our government's response to Mousa's death and its implications? Sadly, it knows no shame. Despite the shocking facts and images, it argues in the Lords that the Human Rights Act does not apply outside the territory of the UK. If it succeeds in this argument, we can all give up hope of there being any proper domestic accountability for any human rights abuses by UK personnel outside the country. I can almost hear the howl of anguish from Baha Mousa's grave.

*Phil Shiner is a solicitor and acts for the family of Baha Mousa and in 40 other cases of torture, beatings and killings by UK forces in Iraq*

phil_shiner@publicinterestlawyers.co.uk