NGO Letter to Chair of UK Torture Inquiry, Raising Concerns About Possible Whitewash

In a recent article, Lawyers and Human Rights Groups Criticize Proposed UK Torture Inquiry, As the Government Fails to Address the Return of Shaker Aamer, the Last British Resident in Guantánamo, I addressed the concerns raised by nine NGOs — Amnesty International, Cageprisoners, JUSTICE, Liberty, the Medical Foundation for the Care of Victims of Torture, Redress, Reprieve, the AIRE Centre and British Irish Rights Watch — about the terms of reference for the British government’s proposed inquiry into British complicity in torture, and their fears that the government is planning a whitewash. For further information, I refer you to that article, but for the full details of the NGOs’ concerns, I’m cross-posting below the latest letter sent by the nine groups to Sir Peter Gibson, the judge appointed to head the inquiry. Please note that a version of this letter with detailed footnotes (providing references to legal precedents) is available here.

NGOs letter to Sir Peter Gibson, February 8, 2011

The Rt. Hon. Sir Peter Gibson
The Detainee Inquiry
35 Great Smith Street
London SW1P 3BQ

08 February 2011

Re: Submission to the Detainee Inquiry

Dear Sir Peter,

Thank you for the opportunity to raise and discuss a number of issues with respect to the conduct of the Detainee Inquiry at the non-governmental organization (NGO) stakeholder meeting on 20 January 2011; the openness of the discussion was much appreciated. Following your suggestion, we have put in writing our views on a number of the issues raised.

This submission seeks to address an issue of fundamental importance to the Detainee Inquiry Panel: what constitutes a human rights-compliant inquiry under the United Kingdom’s international legal obligations, in particular the general requirements deriving from Article 3 (prohibition against torture) of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and other relevant international standards.

More specifically, the latter section of this submission addresses two issues with respect to the disclosure of evidence, including recommendations for how the Inquiry should handle material which the government claims cannot be made public due to considerations of national security and the need for powers to compel the production of documents and attendance of witnesses.

General requirement of an Article 3 inquiry

At the 20 January meeting, we discussed the need for the Detainee Inquiry to comply in letter and spirit with the international obligation to investigate allegations of torture and other ill-treatment. The protocols for other inquiries were mentioned, such as the Chilcot and Saville Inquiries, but it is important to recognise that the Detainee Inquiry was established specifically to examine allegations of torture and other ill-treatment, which give rise to particular requirements under Article 3 ECHR.

The European Court of Human Rights case law requires that any investigation or inquiry into allegations of torture adhere to the following principles: in general, it must be independent, impartial, subject to public scrutiny, and include effective access for victims to the process. Persons conducting the inquiry must act with exemplary diligence and promptness, and the investigation must be capable of establishing the facts and identifying those who were responsible for the violations. The state’s obligation to investigate is not relieved by its inability to obtain cooperation from other states that have access to some of the relevant information. Every effort must be made to seek and secure information regarding torture violations, including from other states and despite their unwillingness to cooperate (see section below on what constitutes a “thorough” inquiry).

The duty to investigate allegations of torture obtains even when the state in question is not alleged to have directly perpetrated the violations in question, but is alleged to have had knowledge of, been complicit or involved in, or provided help or assistance to another state which has had a substantial impact with respect to the perpetration of the violation. In situations where there appears to be a pattern of serious human rights violations, the investigation should be expansive enough to examine broader questions of the systemic nature of the violations, the chain of command and management within the system, and the institutional culture of the agencies and other governmental apparatus alleged to have perpetrated or been complicit in the violations.

The Detainee Inquiry must be carried out in a manner capable of producing tangible results. It is an obligation of means, not of result. As a consequence, “[a]ny deficiency in the investigation which undermines its abilityto establish the circumstances of the case, or the person responsible, is liable to fall foul of the required measure of effectiveness.” Thus, a failure to conduct the Inquiry properly would constitute a violation by the UK of its obligations under Article 3 that is additional to and independent of any violation of Article 3 arising from the torture itself.

Constituent elements of an Article 3 inquiry

An Article 3 compliant inquiry into allegations of torture and other ill-treatment must be 1) prompt; 2) independent; 3) thorough; 4) capable of leading to the identification and prosecution of persons responsible; and 5) provide for public scrutiny and victim participation. While our letter of 8 September 2010 referred to these elements, this submission provides more detail regarding the legal basis for the requirement of each element and some policy considerations for ensuring adherence to them.

Prompt: European Court of Human Rights jurisprudence has interpreted an implicit requirement for promptness and reasonable expedition into the obligation to conduct an effective investigation capable of leading to the identification and punishment of those responsible for human rights violations. Some of the events that the Detainee Inquiry will examine occurred at least a decade ago, which may present challenges to establishing some facts with regard to the allegations. It is thus vital that the Inquiry is provided immediately with all the necessary resources, both human and material, to enable it to investigate these allegations in as expedient a manner as possible. It is important, however, that the inquiry not be limited to one year if a longer period is required to effectively investigate the allegations.

• The Detainee Inquiry Panel should publicly announce now that, should it become evident that an extension of the one-year time period provided by the Prime Minister is necessary for the Panel to complete an effective investigation, it will make such a request to the Prime Minister and would expect such an extension to be granted.
• The Detainee Inquiry Panel should request adequate resources to ensure that the inquiry commences at a pace that complies with the legal requirement that it be concluded in as prompt and expeditious a manner as possible, without sacrificing efficacy.

Independent: An effective investigation requires that the persons responsible for and carrying out the investigation are independent from those implicated in the events. An independent investigation “means not only a lack of hierarchical or institutional connection but also a practical independence” of the investigating authority. The need for independence is particularly important where agents of the state are suspected of having been involved in the violation of Article 3, because, in the European Court of Human Rights’ view, a prompt and independent response subject to public scrutiny is essential to preserve confidence in the administration of justice.

• The Detainee Inquiry Panel should disclose any conflict of interest that might jeopardize the independence of the investigation;
• The Detainee Inquiry Panel should consider policies and practices that ensure its practical independence from the government, such as the publication on a public website of as many transcripts and as much evidence as possible, the holding in public of as many hearings as possible, and public acknowledgment of any limitations that have been imposed on the Inquiry by the government or by any state agency.

Thorough: In order to comply with the requirements of Article 3 ECHR the Detainee Inquiry must be thorough, wide-ranging and rigorous, and capable of leading to the identification and punishment of those responsible for human rights violations. It thus must be able to:

• Establish the facts of the alleged violations and publicly disclose the truth of the allegations to the fullest extent possible;
• Pronounce on state responsibility for knowledge of and involvement in the serious human rights violations that have been alleged;
• Investigate the policies and practices that led to involvement in violations of human rights;
• Identify where government practices or policies deliberately, or inevitably (if not through lack of due diligence), gave rise to human rights violations;
• Identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control;
• Refer information regarding criminal conduct and human rights violations to the relevant authorities;
• Identify measures to prevent reoccurrence of involvement in human rights violations, including recommendations for effective independent oversight of the intelligence services, aimed at ensuring their full accountability.

It is critical to note that the procedural obligation of thoroughness is stricter where the state, as opposed to private individuals or other non-state actors, is implicated in an offence, and requires a wider examination than simply investigating individuals who may have been involved in the violations. For example, wider examination is required if the investigation fails to address the full scope of the state’s involvement in the violations. The European Court of Human Rights has also found that there may be circumstances where issues arise that have not, or cannot, be addressed in a criminal trial, such as where government policy or practices deliberately or inevitably gave rise to unlawful conduct, including by their concealment. In such instances, a wider inquiry may be warranted, as the European Court of Human Rights had found in several of the UK cases related to the killings of alleged IRA members.

A review of European Court of Human Rights case law suggests that the following measures are required of those persons responsible for conducting an inquiry or investigation into allegations of torture and other ill-treatment:

• (i) take all reasonable steps to secure evidence concerning the incidents under investigation, including forensic evidence and testimony of eyewitnesses and other key witnesses;
• (ii) attempt to interview the victims/survivors of the alleged violations;
• (iii) attempt to question eyewitnesses in the immediate aftermath of an incident when memories are fresh;
• (iv) identify all officials involved in the violations;
• (v) take careful and prompt statements of officials involved in the violations;
• (vi) resolve uncertainties and ambiguities in accounts of key witnesses and physical evidence;
• (vii) secure an independent medical report in cases of alleged torture and other ill-treatment where one is reasonably required;
• (viii) secure the evidence of a forensic specialist where one is reasonably required;
• (ix) make efforts to locate and secure key evidence, (including not simply accepting allegations of facts by state authorities, but rather investigating whether there is actually any evidence in support of them);
• (x) take account of evident or visible evidence;
• (xi) take account of evidence which supports allegations of involvement of state agents;
• (xii) not give undue weight to unsupported conclusions or inferences and conclusions that lack sufficient evidentiary support; and
• (xiii) not reach factual conclusions that require assumptions contrary to the principles under Article 3.

We thus recommend that:

• The Detainee Inquiry ensure that it has relevant and adequate expertise in terms of staffing to ensure that the skill set required to thoroughly and effectively investigate the allegations of torture and other ill-treatment is secured on the Inquiry team;
• The Detainee Inquiry ensure that it has powers to compel the disclosure of evidence and the testimony of relevant witnesses (see section below on disclosure issues);
• The Detainee Inquiry identify and establish the responsibility of individuals for human rights violations, and refer that information to relevant authorities.

Public Scrutiny and Victim Participation: In order to maintain public confidence in the UK’s adherence to the rule of law and to prevent any appearance of its ongoing collusion in or tolerance of unlawful acts, “there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.” This is particularly so where there are serious issues of public interest at stake, in which case the findings must be given the widest possible exposure.

Aside from determinations regarding public access to information, victims must be afforded effective access to the investigatory procedure and must be involved in the procedure to the extent necessary to safeguard their legitimate interests. (see section below on disclosure)

European Court of Human Rights case law also requires the particularly vulnerable situation of victims of torture to be taken into account during investigations. We were heartened at the 20 January meeting by indications that legal representation will be afforded to the victims (or ‘survivors’ as many prefer to be called) at the Inquiry’s expense. The panel also appeared receptive to NGO representations on the importance of both properly assessing the needs of victims who will be involved in the inquiry and developing appropriate processes that facilitate disclosure by victims whilst minimising the risk of re-traumatisation and other forms of harm.

We propose that:

• The Detainee Inquiry work with clinical and other specialists from NGOs to develop a written protocol to guide the Inquiry’s approach to involving victims and the special measures that will be adopted to support their participation.

The right to effective remedy and redress for victims

The UK’s obligation to carry out an effective investigation into allegations of torture and other ill-treatment also derives from the right of victims of human rights violations to effective remedy and redress, as firmly rooted in Article 13 ECHR (right to an effective remedy) and other international legal standards.

An effective remedy includes, among other things, the right of victims, their families and society as a whole to know the truth regarding the violations suffered, including the identity of the perpetrators, the causes and facts of such violations, and the circumstances under which they occurred. The right to an effective remedy and redress also includes guarantees of non-repetition which should include measures to ensure that such violations are not repeated in the future. Allegations of UK involvement in serious human rights violations of individuals detained abroad in the context of counter-terrorism operations reaches beyond cases connected to the CIA-led programme of rendition and secret detention. Accordingly the need to learn lessons in order to prevent future violations from occurring is paramount to securing public confidence that such violations will not be repeated.

The need for an independent mechanism for disclosure

The issue of whether material considered by the Inquiry should be kept confidential is one of the most important issues the Panel will have to deal with. In some cases, this may involve a difficult balancing exercise. On the one hand, there may be, in limited circumstances, a public interest in ensuring that, for instance, the identity of a confidential informant whose life may be at risk is not made available to members of the public. On the other hand, there is the clear and constant public interest in the fair administration of justice. In the context of this Inquiry, we take this to mean the public interest in identifying any wrongdoing by those public bodies charged with its protection, based on evidence which is open to the public itself to assess. An inquiry which reaches its conclusions based entirely or substantially on closed material cannot be expected to command the confidence of the general public, let alone the confidence of the individual victims of the human rights violations it will investigate.

As Collins J noted concerning the 2007 inquest into the death of a British soldier in Basra, it is fundamental that any official inquiry does not simply accept at face value the claims of secrecy made by the government:

[A]ny claim that material should not be disclosed on national security grounds must be considered by the coroner. His is an inquisitorial, not an adversarial, process. He must have all the information, but he must bear in mind the requirements of the procedural obligation which include enabling the family to play a proper and effective part in the process. (Smith v Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin) at para 36, emphasis added).

At the very least, then, compliance with the investigative obligation under Article 3 requires that as much material as possible is made public.

In addition to the well-established purposes applicable to every Article 3 inquiry, it is clear from the Prime Minister’s statement to the House of Commons on 6 July 2010 that there were further pragmatic reasons for commissioning this particular Inquiry. He spoke of a need to “resolve issues of the past” where allegations have been made about the UK’s involvement in the mistreatment of detainees held by other countries, in order to restore the reputation of the security services. He warned: “Our reputation as a country that believes in human rights, justice, fairness and the rule of law … risks being tarnished.”

This additional purpose can only be achieved if the victims and the public can have confidence in the Inquiry’s conclusions. This will depend in large part on how much of its work takes place in public. Lord Neuberger recognised the dangers of closed proceedings in this regard in Al Rawi and others v the Security Service and others [2010] EWCA Civ 482 (para 56):

“While considering practical considerations, it is helpful to stand back and consider not merely whether justice is being done, but whether justice is being seen to be done. If the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”

We respectfully suggest that the same considerations apply with even greater force to the work of the Inquiry. The Prime Minister’s letter to you of 6 July 2010 also implicitly acknowledged that, notwithstanding sensitive subject-matter of the Inquiry, as much of the Inquiry’s work as possible should be done in public (emphasis added):

“The Inquiry will have access to all Government papers it requires as relevant to its examination. There are obvious limitations to what can be considered in public. Almost all of the operational intelligence details will need to be reviewed in closed session.

I invite you to consider what can take place in public. It is open to the Inquiry to invite evidence from those who allege mistreatment and other interested parties from outside Government, including in open session. I would look to you to agree with Government a protocol on the treatment of information and the balance of public and private evidence. This protocol will be published.

… I intend to publish the report and any supporting documents you recommend, with redactions only where necessary in order to avoid damage to the public interest.”

In light of the above, we believe that the protocol for the Detainee Inquiry must:

• (a) expressly recognise the need for as much material as possible to be made public;
• (b) set out the grounds on which information may be kept confidential, limited to those which are strictly necessary;
• (c) establish an independent mechanism for determining whether material should be withheld from the public, which includes the ability of the Inquiry Counsel or other independent counsel to test, including through cross-examination, the government’s claims; and
• (d) ensure that any such determination properly balances the public interest in disclosure against the public interest in withholding the material in question.

Powers to compel evidence

Notwithstanding the Prime Minister’s assurance that the Cabinet Secretary and heads of the intelligence services will “require staff in their departments and agencies to cooperate fully with the Inquiry”, we have serious concerns about the lack of any current powers to compel the production of documents or the attendance of witnesses.

We believe that both the effectiveness and the credibility of the Inquiry risk being seriously damaged by the absence of such powers and we would ask the Panel to convey to the government an urgent need to remedy this. Even assuming all existing members of staff cooperate with the Inquiry, it is quite possible that those who have left office will – unless compelled – refuse to do so. As for private companies whose activities may be relevant to the Inquiry (such as those who are alleged to have facilitated the use of UK airports and airspace for extraordinary rendition flights), it is almost inevitable that those implicated will refuse to cooperate.

An expression of disapproval or disappointment by the Inquiry is simply an inadequate deterrent to anyone who is reluctant to comply with a request to attend or produce documents.

Further submissions on relevant issues

This submission provides legal analysis to support the proposition that the Detainee Inquiry must include specific elements in order to comply with the UK’s obligation to conduct a human rights compliant inquiry. The Inquiry can expect to receive additional submissions from the NGO community regarding specific topics of interest (e.g. the liability of corporations for their role in the operations that led to the human rights violations under scrutiny) and we hope that further engagement will be invited in relation to the operational aspects of some of the key issues of concern (e.g. participation and protection of victims and witnesses), among others.

Yours sincerely,

The AIRE Centre
Amnesty International
British Irish Rights Watch
Cageprisoners
JUSTICE
Liberty
The Medical Foundation for the Care of Victims of Torture
Redress
Reprieve