David Davis MP challenges refusal of judge-led rendition inquiry.
As reported in The Guardian:
Two MPs challenge refusal of judge-led rendition inquiry.
Labour’s Dan Jarvis and Tory David Davis go to high court over abandoned promise.
A Labour and a Conservative MP have joined with a human
rights charity to mount a legal challenge against a decision to abandon a
promise to hold a judge-led inquiry into torture and rendition involving
British intelligence agencies after 9/11.
Dan Jarvis and David Davis have submitted an
application for a judicial review in the high court in conjunction with
Reprieve to try to reverse a decision made in the last days of Theresa May’s
government, which contradicted a promise originally made by David Cameron.
Speaking to the Guardian, Jarvis, a former officer in the
Paratroop regiment, said he was behind the action because he wanted Britain to
show “we respect international law, that we are honest and learn from our
mistakes, that we are better than this.”
Jarvis argued that current events in Syria – some Isis prisoners have been taken by the US from Syria to Iraq, while the fate of others remains uncertain as Turkey invades north-east Syria – highlighted the need to act with legitimacy. “Our responses to terrorism must be clear and must be legal,” he said.
Jarvis served in both Iraq and Afghanistan, and he said in
his experience soldiers behaved within the law, but there was evidence other
agencies may have behaved differently. “Our standing in the world is not as it
should be. Some people don’t care about that, but I do,” he said.
Cameron announced shortly after becoming prime minister in
2010 that there would be a judge-led inquiry into repeated allegations that the
security services were complicit in torture and rendition, and he appointed Sir
Peter Gibson to undertake the work.
“The longer these questions remain unanswered, the bigger
the stain on our reputation as a country that believes in freedom, fairness and
human rights grows,” Cameron told the Commons at the time.
The Gibson inquiry was halted in 2012 while civil claims
were being resolved and amid a row with human rights groups over how much of it
would be heard in secret. Parliament’s intelligence and security committee
(ISC) held a more restricted inquiry, and the option of a judge-led inquiry was
held open.
The ISC found in 2018 that British intelligence agencies were involved in dozens of episodes of torture and rendition, mainly in partnership with the US. The UK planned, agreed to or financed 31 rendition operations, British intelligence officers consented to or witnessed the use of torture on 15 occasions, and on 232 occasions agencies supplied questions to be put to detainees whom they knew or suspected were being mistreated.
A month earlier, May issued a public apology to a
Libyan dissident, Abdel Hakim Belhaj, and his wife, Fatima Boudchar, who were
seized in Thailand and taken to Libya with the help of MI6 where they were
imprisoned and tortured. “The UK government’s actions contributed to your
detention, rendition and suffering,” May wrote.
Ministers then invited submissions on what do next, with a
judge-led inquiry remaining an option, until it was suddenly ruled out by
David Lidington, May’s de facto deputy, in one of the last acts of May’s
premiership.
It is that decision that Jarvis and Davis are seeking to overturn, and those involved in the case suggest that a lacklustre initial legal defence from the government suggests ministers may not mind being defeated in court.
As reported in The Independent:
A UN special expert has formally warned the UK its refusal
to launch a judicial inquiry into torture and rendition breaches
international law, The Independent can reveal.
UN special rapporteur for torture Nils Melzer accused the British
government of covering up its involvement in the practices post-9/11,
saying he suspects a cover-up organised to protect figures who are “very high
up”.
He has written a private “intervention” letter to the foreign
secretary challenging the refusal to investigate “credible” claims that UK
officials have been involved in torture.
He told this newspaper it appears the government has engaged
in a conscious policy of cooperating with torture since 9/11, saying it is
“impossible” the practice was not approved or at least tolerated by top
officials.
The letter says the UK government must hold a judicial
inquiry and prosecute government officials found to be responsible, as it is
bound by the UN Convention Against Torture to criminalise all acts of
torture whenever there are credible grounds. Such grounds were established by
evidence published by Parliament’s Intelligence and Security Committee (ISC) in
2018 which showed British intelligence agencies have been involved in torture
and rendition cases since 9/11, the letter said.
“The interesting question is not whether the UK was involved
in torture because you already have the evidence. You already have the
Intelligence and Security Committee saying so,” Melzer told The
Independent.
“You [the UK government] have a legal obligation to
investigate and to prosecute.”
Mr Melzer, who is an expert in international law and has
been deputy head of delegation at the International Committee of the Red Cross,
said the government’s refusal to hold an inquiry is a “scandalous” breach of
the law and a move towards “disabling democracy.”
He is concerned the government is blocking the judicial
investigation to protect senior officials who he believes may have authorised
the involvement.
“It’s not some rogue soldier going crazy … killing a
prisoner somewhere in Afghanistan because he’s mentally disturbed,” he
said.
“Here, we’re talking about a policy of co-operating with
torture and rendition and that goes very high up.
“It’s impossible that it was not green-lighted or at least
tolerated by top officials. And obviously that’s where every government starts
drawing lines, and they don’t want to investigate.”
The Reprieve legal charity and MPs David Davis and Dan
Jarvis launched a judicial review over the government’s “refusal” to hold the
inquiry on Thursday.
Papers lodged at the High Court accused ministers of failing
to deliver on promises to hold a fully independent, judge-led inquiry into
alleged British complicity in US torture and extraordinary rendition as part of
the “war on terror”.
They argue that the failure is irrational and violates
Article 3 of the European Convention on Human Rights as well as common law
prohibition of torture. The government must respond within 21 days.
Maya Foa, the director of Reprieve, said: “The powerful must
be held to account so that victims can move on with their lives, but just as
importantly because if we do not fully investigate our past mistakes, we are
doomed to repeat them.”
Mr Davis, a veteran Conservative MP and former minister,
accused the government of “years of dither and delay”.
“Torture doesn’t produce reliable intelligence, and
involvement in it makes everyone in this country less safe,” he said.
“We must take a clear-eyed look at this dark period in our recent
history, and give victims the redress and accountability they were promised,
and face the future with a clear conscience and determination not to repeat the
mistakes of the past.”
Parliament’s Intelligence and Security Committee published
two reports in June 2018 which revealed the UK’s oversees intelligence service
MI6 and the domestic spy agency MI5 were involved in hundreds of torture cases
and scores of rendition cases since 9/11. Although they found no evidence of
abuse directly carried out by UK personnel, a key passage in the reports said
then foreign secretary Jack Straw authorised MI6 for the cost of
funding a plane which was involved in an individual rendition case, raising
questions about the involvement of senior officials.
Committee chair Dominic Grieve said it was forced to end its
investigation early because then Prime Minister Theresa May denied it access to
key intelligence officials and witnesses. The committee decided to publish
their findings in 2018 and called for the government to establish an inquiry
into the matter “without further delay.”
The same year the British government officially apologised
to a Libyan man, Abdul Hakim Belhaj, for the role MI6 played in kidnapping and
the rendition of him and his pregnant wife to Muammar Gaddafi’s Libya in 2004.
The couple were taken from Malaysia to Thailand, tied to the floor of a
military transport and flown to Libya, where they were imprisoned – and Mr
Belhaj, who was a known enemy of Gaddafi, was tortured.
Letters from MI6 counter-terrorism head at the time, Sir
Mark Allen, were found by Human Rights Watch in 2011 after Gaddafi’s downfall
and revealed the agency was involved.
“This was the least we could do for you and for Libya to
demonstrate the remarkable relationship we have built over the years … The
intelligence about… [Belhaj] was British. I know I did not pay for the air
cargo. But I feel I have the right to deal with you direct on this,” a fax from
Mr Allen said.
On 18 July, Cabinet Office minister David Lidington
announced the government would not hold a judge-led inquiry into torture and
rendition telling the House of Commons it has “no legal obligation” or “policy
reason” to launch one. He added that the guidance and training for UK
personnel dealing with detainees who are held by others has been revised.
Mr Melzer said the decision to rule out the inquiry is both
illegal and a threat to the separation of powers because the government is
dominating the other two branches of the state, the judiciary and Parliament
over the torture investigation, which sets a dangerous precedent if
unchallenged.
“We’re creating absolute power,” Melzer told The
Independent.
“We know … from history, a government that has unchecked
power will abuse that power … we’re allowing people to abuse their power and
this can escalate to the worst. So we’re clearly not there yet … But once we’re
there it’s too late.”
The UK Foreign Office (FCO) referred The Independent to
the statement by Mr Lidington on 18 July which said, “The Government do not
participate in, solicit, encourage or condone the use of torture or of cruel,
inhuman or degrading treatment … To do so … would also be a betrayal of
everything that we stand for as a nation.
“There is no policy reason to… [hold an inquiry], given the
extensive work already undertaken to improve policies and practices in this
area. The Government’s position is also that there is no legal obligation.”
Kenneth Clarke, MP and co-chair of the all party
parliamentary group (APPG) on extraordinary rendition, told The Independent it’s
a “cover-up” and senior officials are hiding in the “long grass”.
“They don’t want to reveal who took the decisions, what
authorisation they have, what was the policy that led to us abandoning our
normal prohibitions on being involved with torture or being involved with
forceful rendition,” he said.
Mr Clarke took a leading role setting up the present ISC
with more powers and believes the government “ground it to a halt,” because “it
was getting too far … exposing too much” and was looking in depth into
things that were “really worrying” including authorisation and motive. He has
spoken to members of MI6 and the government about the need for an inquiry. One
MI6 official whom Mr Clarke declined to name reportedly argued: “Well it’s all
so long ago. It’s all so different now. That doesn’t happen like that now. It’s
all changed. Don’t worry, it’s fine.”
Others in government reportedly told him there have been too
many public inquires and they cannot spend millions of pounds on another. “I’m
afraid I think that’s a cover-up,” Mr Clarke said.
Lord Robin Hodgson, who works on the APPG for extraordinary
rendition alongside Mr Clarke, said public interest in the issue has been worn
out, adding the security services are using their “ace of trumps” which is the
argument that “this is keeping the country safe minister.”
Former MI5 officer and whistleblower Annie Machon told The
Independent she agreed it bore the hallmarks of a cover-up, adding the
intelligence agencies have been “caught with their pants down.” She said in the
nineties MI5 had an “older tribal knowledge” from experience in Ireland that
torture was counter-productive, produced blowback and was an unethical
recruiting drum for terrorists, so they avoided it.
But after 9/11 the US went “helter-skelter” down the path of
extraordinary renditions and extrajudicial killings and the UK agencies with
their close working relationship quickly followed.
There was also tension among the British agencies, with the
head of MI5 Baroness Eliza Manningham-Buller pushing back against the use of
torture, extraordinary rendition and war with Iraq arguing it was dangerous for
national security while MI6 head Richard Dearlove was more willing to do what
the Blair government wanted, she added.
Senior officials have been protected while MI6 officers who
might have come forward about torture and rendition during the Chilcot inquiry
were not given a chance, Ms Machon added.
She believes the Belhaj case contains some of the most
damning and disturbing evidence of UK involvement in torture and rendition
after 9/11.
“I think because they’ve been caught out now particularly
with the Belhaj case… That has caused massive embarrassment,” she said.
“So I would assume that both agencies have pulled back…
again from the idea of ever being involved in torture.”
The UN special rapporteur hasn’t yet had a reply to his 19
August letter, which he said is unusual when dealing with the UK and the other
“mature democracies.”
The Foreign Office told The Independent they
still have time to reply before the deadline, adding that through the FCO’s
Magna Carta Fund for Human Rights and Democracy they have supported “over
£500,000 of programmes aimed at preventing torture around the world”.