Human rights in Iraq: a case to answer
Revealed: How Lord Goldsmith advised Army chiefs to deny detainees ‚full‘ legal protection
By Robert Verkaik, Law Editor 29 May 2007
The Attorney General, Lord Goldsmith, is facing accusations that he told the Army its soldiers were not bound by the Human Rights Act when arresting, detaining and interrogating Iraqi prisoners.
Previously confidential emails, seen by The Independent, between London and British military head-quarters in Iraq soon after the start of the war suggest Lord Goldsmith’s advice was to adopt a „pragmatic“ approach when handling prisoners and it was not necessary to follow the “ higher standards“ of the protection of the Human Rights Act.
That, according to human rights lawyers, was tantamount to the Attorney General advising the military to ignore the Human Rights Act and to simply observe the Geneva Conventions. It was also contrary to advice given by the Army’s senior lawyer in Iraq, who urged higher standards to be met.
Today, rights groups and experts in international law will call on the Government to disclose Lord Goldsmith’s legal opinion, which they say could have helped create a culture of abuse of Iraqis by British soldiers.
Last month, the first British soldier convicted of a war crime was jailed for a year and dismissed from the Army after being convicted of mistreating Iraqi civilians, including the hotel worker Baha Mousa, who died of his injuries at the hands of British soldiers. In 2005, three British soldiers were jailed by a court martial in Germany after „trophy“ photographs emerged, showing Iraqi detainees being abused at an aid centre called Camp Bread Basket. There are about 60 more allegations of abuse being prepared for legal claims by rights groups.
Last week, Parliament’s Joint Committee on Human Rights wrote to the Government to ask for an „explanation“ about the evidence of torture in the Baha Mousa court martial.
Andrew Dismore MP, chair of the committee, said: „We have asked the Ministry of Defence to explain what appear to be stark inconsistencies in the evidence presented to our committee about the use of inhuman and degrading interrogation techniques prohibited as long ago as 1972.“
But emails sent just after the invasion indicate Lord Goldsmith’s belief that British soldiers in Iraq were not bound by the Human Rights Act. The documents also show a wide differing of opinion between him and Lieutenant-Colonel Nicholas Mercer, the Army’s most senior legal adviser on the ground, who wrote to say he felt „the ECHR would apply“ to troops in Iraq.
On one occasion, Rachel Quick, the legal adviser to Permanent Joint Headquarters who had regularly sought and been given guidance from Lord Goldsmith on the treatment of Iraqi prisoners, wrote to Colonel Mercer giving her interpretation of the Attorney General’s advice. His view, she said, „was that the HRA was only intended to protect rights conferred by the Convention and must look to international law to determine the scope of those rights“.
Ms Quick went on say that the advice of the Attorney General, supported by Professor Christopher Greenwood [the barrister who advised Lord Goldsmith on the legality of the war], was that, in the circumstances, the HRA did not apply. „For your purposes,“ she wrote, „I would suggest this means no requirement for you to provide guidance on the application of the HRA. I hope this is clear.“
Ms Quick, who in November 2003, was appointed OBE, added: „With regard to the detention of civilians – I will look at your documents in more detail and discuss with FCO, MoD legal advisers. Although my initial thoughts are you are trying to introduce UK procedures to a Geneva Convention IV context. Whilst this may be the perfect solution it may not be the pragmatic solution. Again we raised this issue with the AG and got a helpful steer on the procedures. I’ll aim to try to produce guidance, taking into account their advice on the detention of civilians.“
Such were the concerns of legal advisers on the ground over the Attorney General’s views that the MoD arranged for the senior legal adviser at the Foreign Office, Gavin Hood, to visit Permanent Joint Headquarters to settle any worries. Crucially, the emails make clear Lord Goldsmith’s legal opinion was not shared by Colonel Mercer, who contacted his superiors in London to ask for guidance after he had witnessed the hooding of 40 Iraqis at a British PoW camp in March. The men were all forced to kneel in the sun and had their hands cuffed behind their backs. Worried this could leave the soldiers vulnerable to prosecutions, he told the MoD that in his view soldiers should behave in accordance with the „higher standard“ of the Human Rights Act.
But the response from the military’s Permanent Joint Headquarters in Qatar was that Lord Goldsmith had told the MoD the human rights law did not apply and soldiers should simply observe the Geneva Conventions.
When Colonel Mercer said he disagreed with the Government’s most senior law officer he was told that „perhaps you should put yourself up as the next Attorney General“. Colonel Mercer also asked for a British judge to be flown out to oversee the procedures for the detention of Iraqi prisoners, but this also was blocked at a high level.
Colonel Mercer’s interpretation of the law has since proved correct. Thirty months after he first raised his concerns during the Iraq conflict, the Court of Appeal ruled that British soldiers were bound by the Human Rights Act, which bans torture or degrading of prisoners.
The emails, part of court documents being prepared to support a judicial review in the High Court this year, reveal considerable disquiet among the military about the Attorney General’s advice.
The documents show that as early as March 2003, the International Committee of the Red Cross had begun investigating complaints of possible war crimes by British soldiers at the same PoW camp in south-east Iraq that had prompted Colonel Mercer’s original intervention. The Government was so worried about this that it flew out a political adviser from London to address the Red Cross’s concerns about hooding and other practices.
* Torture is defined by international law as any threat or use of severe pain, physical or mental, against an individual with the intention of obtaining a confession or other information. Under the UN Convention Against Torture, 40 states – including Britain – have agreed not to engage in such practices.
During military conflict the third and fourth Geneva Conventions protect prisoners of war and civilians who are held by soldiers. Torture is also defined as a war crime by the International Criminal Court, which describes it as the unlawful infliction of severe pain.
Many of the incidents of abuse committed by British soldiers on Iraqi civilians may fall outside the strict definition of torture under international law.
But under the European Convention of Human Rights, incorporated in the Human Rights Act 1998, there is no requirement that the threat or use of pain should be severe for an act to fall foul of the law.
Lord Goldsmith argued that because UK forces did not have full control of Iraq, the country was not part of its jurisdiction and therefore the Human Rights Act did not apply. He lost this argument when the Court of Appeal ruled that Iraqi civilians held in custody and the soldiers detaining them were subject to the Human Rights Act. The case is to be settled later this year by the House of Lords. If the Government loses then it is expected that full and independent inquiries will be held into the deaths, disappearances and torture of Iraqis by British soldiers.
Leading article: An abuse of human rights – and a blot on our integrity
Published: 29 May 2007
The abuse of Iraqi detainees at the hands of British and American forces in Iraq has left a dark stain on the reputations of both countries in the Middle East, and in the wider world beyond. Claims once confidently advanced by Britain and the United States to be occupying the moral high ground in dealings with tyrannical regimes have been severely discredited over the last four years. It will take much longer than that to shake off the shame. The fact that the events at Abu Ghraib were more serious and more damaging to America’s reputation than those at Camp Bread Basket were to Britain’s is of little comfort.
It is, therefore, shocking to discover that the Attorney General, Lord Goldsmith, was not merely a passive spectator in the process by which the Army lost its moral compass in Iraq; he appears to have actively assisted matters, assuring the Army just after the war started that „pragmatism“ and the Geneva Convention, rather than the European Convention of Human Rights, should form the basis of the treatment of any Iraqis detained or interrogated by the military.
Apart from the hypocrisy of the Government’s chief law officer publicly upholding the value of the Human Rights Act at home while privately suggesting that the Army could ignore it abroad – and the obvious connection that may be drawn between his recommendations and the subsequent abuses committed in Iraq – it suggests a remarkably callous attitude on his part towards British troops. At the time, Colonel Mercer made it very clear that he was worried that abandonment of the Human Rights Act would not only encourage maltreatment of Iraqi prisoners – which it clearly did – but expose British troops to subsequent prosecution. According to human rights lawyers, that concern did not appear to bother Lord Goldsmith – not when weighed against the higher need to smooth away all obstacles in the way of Tony Blair’s policy of unflinching support for the US occupation forces.
What are the consequences of this dereliction of duty? In the Army, one British soldier has already been convicted of war crimes, and more may follow. More than 60 allegations of abuse are now being prepared for legal claims. In Iraq, we leave with our heads bowed, an object of mocking jeers as well as accusations that we have been exposed as indifferent to the deaths of 700,000 Arabs and Muslims.
This is not to suggest that Lord Goldsmith should take the sole or even primary responsibility for this. The entire Government and most of the Labour Party – and opposition – were swept along by Mr Blair’s steely determination to get his way in Iraq. In the process they all connived, more or less, in the burial or suppression of inconvenient facts and in the systematic vilification and rubbishing of doubters and nay-sayers.
The Attorney General will soon be gone, so calls for his resignation are superfluous. What’s important is that his successor try to recover more of the spirit of independence in relation to the executive that Attorney Generals used to enjoy, and so rebuild the reputation of the office, which Lord Goldsmith by his actions has regrettably diminished.
Shami Chakrabarti: We risk the values that make Britain worth defending
Published: 29 May 2007
More than 50 years ago, with Britain as midwife, the European Convention on Human Rights was born of the ashes of the Second World War. Conceived by the generation who saw the horrors of the Holocaust, one of its non-negotiable articles is the complete prohibition on torture and inhuman or degrading treatment.
Thirty-five years ago a British prime minister addressed Parliament and made clear that the military practice of hooding terrorist suspects was at an end. Even while staring terrorism in the face, democracies can never resort to torture.
These are great milestones in our democratic heritage. They reflect real consensus across the political spectrum which should span the ages. How tragic then is the story of the mistreatment of detainees in Iraq.
At the very least, what must come from this scandal is a firm commitment to train British troops in policing and detention functions.
We must not send young people into dangerous situations like Iraq with little more than a nod and a wink that mistreatment might be permitted. If we allow such behaviour by our forces, I firmly believe that we only jeopardise their safety in the hands of opponents. If we continue to argue that „the rules of the game“ have changed since the twin-towers and London atrocities, we risk surrendering the values that make our country worth defending. I know this argument has had great currency in parts of the Government in recent times.
I note that during his brief spell as Defence Secretary, John Reid questioned whether the Geneva Conventions had kept pace with world events. Now in the dying days of his short term at the Home Office, he questions whether the Human Rights framework retains its relevance.
It is to be hoped that his gallop through the great offices of state is coming to an end.
I also look forward to a new prime minister dumping divisive rhetoric and re-building a security consensus inspired and sustained by the rule of law.
This consensus would remember that some values are universal and timeless. When the next chapter in our human rights history is written, there will be a special place for Lt-Col Nicholas Mercer and the many in the military and the law who think like him.
They know that there is no more important British value than the complete prohibition on torture and inhuman and degrading treatment. They know the human „wrongness“ of hooding and beating detainees anywhere.If the Attorney General did not fight for this value in his advice, his place will be somewhat less attractive. Shami Chakrabarti is directtor of Liberty