Tuesday, 16 December 2014

The truth, the whole truth and nothing but the truth

The Torturer has long been regarded as the enemy of mankind (Hostis humani generis).  Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor v Furundzija

The US Senate "Torture" report:

The US Senate Select Committee on Intelligence has released an important summary of a report covering the period September 2001 to January 2009 - Committee Study of the Central Intelligence Agency's Detention and Interrogation Program .  The document contains the Executive Summary, Findings and Conclusions of a much larger report that remains classified though declassification may be considered later.  In the Foreword to the document, the Chairman of the Committee (Senator Dianne Feinstein) stated - " .... it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured ....".  She goes on to add, " ... conditions of confinement and unauthorised interrogation and conditioning techniques were cruel, inhuman and degrading ..."   See the comments of 9th December by Senator Feinstein on her website.

Criticism and and concerns:

The report has been criticised, mainly by political opponents of its authors (see New York Times 8th December), but it is a very candid statement of  how various detainees were treated.  The document contains no reference to any United Kingdom involvement with the treatment of detainees though it has long been suspected that, for example, UK aerodromes were used by rendition flights and that British authorities supplied questions to be put by others - (perhaps more brutal others) - to detainees.  (In 2008, there was a government admission that two rendition flights had used Diego Garcia in 2002).  Such suspicions are damaging to the UK's international  standing and there is no surprise that, given the publication of this report,  there are demands for some form of UK inquiry.  At the present time, the most likely form of inquiry will be an investigation by Parliament's Intelligence and Security Committee - BBC 14th December - MPs and Peers seek material on any UK 'torture' role.    

According to that BBC article, Labour's shadow home secretary (Yvette Cooper) has concerns that the intelligence committee lacks the capacity or scope to be able to get to the truth.  Conservative MP Andrew Tyrie, who chairs the all-party parliamentary group on extraordinary rendition, called for the government to "reconstitute a judge-led inquiry" with "wide-ranging powers" and a "substantial investigative capability" to look into the UK's role in the CIA's interrogation programme.  Clare Algar, from the charity Reprieve, told the BBC that Prime Minister David Cameron had previously said only a judge-led inquiry could get to the bottom of the UK's involvement, adding: "I think that is still the case."

The ISC:

The Intelligence and Security Committee has extensive powers.  The committee's website states:

"The Intelligence and Security Committee of Parliament (ISC) was first established by the Intelligence Services Act 1994 to examine the policy, administration and expenditure of the Security Service, Secret Intelligence Service (SIS), and the Government Communications Headquarters (GCHQ). The Justice and Security Act 2013 reformed the ISC: making it a Committee of Parliament; providing greater powers; and increasing its remit (including oversight of operational activity and the wider intelligence and security activities of Government). Other than the three intelligence and security Agencies, the ISC examines the intelligence-related work of the Cabinet Office including: the Joint Intelligence Committee (JIC); the Assessments Staff; and the National Security Secretariat. The Committee also provides oversight of Defence Intelligence in the Ministry of Defence and the Office for Security and Counter-Terrorism in the Home Office."

There are claims that the ISC lacks powers to adequately investigate these matters.  Possibly, if Parliament (or Government) were so minded, any lacunae in the powers could be addressed.  The present position of the ISC can be found in the Justice and Security Act 2013 Part 1 and Schedule 1.

Alternative inquiries:

The alternative to an ISC investigation would be a statutory inquiry under the terms of the Inquiries Act 2005 but that is a form of inquiry which has also been the subject of criticism given the degree of control exercisable by Ministers - see Local Government Lawyer 20th March 2014 and Law Society Gazette 27th March.  Further, the government could set up a non-statutory inquiry such as it did with the Child Abuse Inquiry announced earlier this year.  The government would set the terms of reference for such an inquiry.  Even when set up, inquiries can be a lengthy (not to mention expensive) process and the final report may be delayed (as with the Chilcot Iraq Inquiry) or perhaps either not published or published just in redacted form.  The lengthy delay with regard to the Chilcot Inquiry appears to be undermining whatever public confidence existed in the Inquiry.  In any event, the Chilcot Inquiry will first report to the Prime Minister.

Gibson Inquiry:

An inquiry set up in 2010 under the Chairmanship of Sir Peter Gibson was closed down by the government in 2012 though a report was prepared for the Prime Minister in late 2013.  (See Report of the Detainee Inquiry - December 2013).   The Gibson Inquiry was set up to inquire into the question of British complicity in torture conducted abroad - BBC 6th July.

The Open Society Justice Initiative report:

Rendition by the United States of America's Central Intelligence Agency (CIA) is the subject of a report by the Open Society Justice Initiative (OSJI) - see "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition" - (PDF 216 pages).  This report states that some 54 countries (including the United Kingdom) offered some level of support for rendition.  The United Kingdom is discussed in Section V at para 51.

The publication of the report was covered by The Guardian (5th February 2013) CIA rendition: More than a quarter of countries offered covert support  

The UN Torture Convention:

The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by the UK December 1988 and the Criminal Justice Act 1988 section 134  defines the offence of torture for the purposes of the criminal law.

Universal Jurisdiction is an aspect of international law that seeks to ensure that there is no safe haven for torturers.

A former UN Special Rapporteur on Torture (Professor Manfred Nowak) has argued that the UK must probe its role in torture - The Guardian 20th December.

The Al-Sweady Inquiry:

This Inquiry has reported - see Watching the Law 18th December 2014.


It remains to be seen whether the UK will hold a truly effective investigation or inquiry into the various allegations of involvement in the matters set out in the reports of the US Senate and others such as Sir Peter Gibson's report of December 2013.  The government would do well to ensure that there is such an investigation or inquiry and that the truth, the whole truth and nothing but the truth is established.  Furthermore, a secretive process will not address public concern.


1 comment: