Letter to Sir Peter Gibson on the UK torture inquiry

September 14, 2010

An alliance of human rights NGOs has today written to the Chair of the inquiry into British government complicity in torture.

The letter sets out a proposed structure to enable the inquiry to be thorough and fair, and insists that victims must have a voice. The letter may be downloaded below or read here:

Dear Sir Peter

Following the announcement by Prime Minister David Cameron on 6 July of an inquiry into allegations of UK involvement in the mistreatment of detainees held abroad, the AIRE Centre, Amnesty International, British Irish RIGHTS WATCH, Cageprisoners, Justice, Liberty, Redress, Reprieve, and the Medical Foundation for the Care of Victims of Torture, write to offer a number of constructive comments to ensure the success of the inquiry.

A sufficiently empowered and transparent inquiry could discharge the United Kingdom’s duty to effectively investigate damaging allegations of knowledge of and/or involvement by state actors or agents in the torture, ill treatment or rendition of individuals that have arisen in the last decade. Such an inquiry could also play an important role in clarifying how involvement in torture, ill treatment or rendition might be prevented in the future.

It is incumbent on governments to promptly and effectively investigate all allegations of torture and other related human rights abuses. In order to comply with basic human rights standards, it is essential that the inquiry be:

1) Prompt. The earliest events that this inquiry must consider occurred at least a decade ago. Delay has increased the damage caused by allegations of involvement in torture and ill treatment and has already reduced the potential for the inquiry to uncover the truth.

2) Independent. The persons responsible for and carrying out the inquiry must be fully independent of any institution, agency or person who may be the subject of, or are otherwise involved in, the inquiry. Where allegations of involvement in torture and ill treatment have been made, an independent response is particularly important in order to preserve confidence in the administration of justice.

(3) Thorough. The inquiry must be sufficiently empowered, staffed, and resourced to be thorough, wide-ranging and rigorous. It must be able to pronounce on state responsibility for knowledge and involvement in the serious human rights violations that have been alleged and to identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control. The inquiry must be capable of determining whether any conduct was unlawful and thus must be empowered to: secure all relevant evidence and testimony; interview victims and their families; question any eye witnesses; take statements of any officials alleged to have been involved in violations; secure appropriate medical reports; and consider any evidence which implicates any public officials or agents of the state.

(4) Subject to public scrutiny, with the participation of victims. The inquiry must be open to adequate public scrutiny. Survivors or victims must be involved in the process to ensure their right to effective investigation and redress, and special measures must be adopted to ensure this participation is supportive, safe and effective; non-governmental organizations have an important role to play in this regard. The participation of survivors, victims and civil society ensures the adherence of the inquiry to the rule of law, prevents any appearance of collusion in or tolerance of illegal acts, and helps safeguard victims’ rights to an effective remedy and reparations.

It is fundamental to the legality, credibility and utility of the inquiry that it complies with the United Kingdom’s international human rights obligations, including standards arising from the Convention against Torture, the European Convention on Human Rights, and the common law.

Terms of reference

The terms of reference of the inquiry must permit the consideration of the full range of alleged abuses. To that end, we propose the following terms:

“The inquiry shall be empowered to inquire into knowledge of and involvement in theunlawful rendition of individuals, and torture and other cruel, inhuman or degradingtreatment of detainees held abroad, by any UK state actors and agents, includingcorporate bodies, in the lead up to the 11 September 2001 attacks in the USA andsubsequent to them. The inquiry shall examine both policy and practice, and makerecommendations.”

The development of satisfactory terms of reference – in consultation with the survivors and victims of abuses, their representatives, and interested non-governmental organizations – is essential to ensure that the inquiry provides effective redress for all victims of the alleged abusive practices, identifies the policies that gave rise to them, and suggests appropriate reforms.

Conduct of the inquiry

The UK government has noted a variety of reasons for establishing a forensic inquiry – the reputational damage to the country and the security services caused by the allegations; the desire on the part of the security services to establish their integrity; the resource burden on the security services in lengthy court cases; exploitation of the allegations by extremists for propaganda purposes; and the need to systematically get to the truth and ensure that such abuses will not happen again. Our organizations would add to this list the requirement of effective redress for any victims of these alleged abuses and the need to hold accountable those responsible for serious human rights violations.

In order for the inquiry to fulfil its purposes, we recommend the following:

(1) The inquiry must appoint a strong legal team with sufficient expertise to deal with the rangeof human rights, intelligence, and secrecy issues that it is likely to face;

(2) The presumption must be that each stage of the inquiry will be public, with as muchevidence as possible to be heard and considered in public;

(3) The inquiry must ensure that survivors and victims have standing as parties to the inquiryand have a right to legal representation funded by the inquiry. Survivors, victims and theirrepresentatives must be kept informed of all information relevant to the investigation andhave access to hearings and the ability to make submissions;

(4) Other interested parties, including the intelligence services, must also have standing and theright to legal representation funded by the inquiry. They and their representatives must bekept informed of all information relevant to the investigation; and have access to hearingsand the ability to make submissions;

(5) The inquiry must require that all relevant documents be disclosed to the inquiry by thegovernment; the head of the inquiry must have the power to decide whether or not to makesuch documents public;

(6) The inquiry must aim to achieve maximum possible disclosure. Any determination thatcertain information should be kept confidential, including on the grounds of nationalsecurity, should be made applying limited and precisely defined grounds that are specifiedin advance; an independent mechanism should be developed to ensure that any decision bythe inquiry panel to withhold such information is in the public interest;

(7) The inquiry must ensure that any invocation of secrecy or confidentiality on the part of thegovernment, its agents, or the inquiry does not: prevent an independent, impartial, andthorough investigation of alleged human rights violations; prevent the government andindividual perpetrators from being held accountable; prevent a victim from receiving aneffective remedy, including reparation; or prevent full and public disclosure of the truth;

(8) The inquiry must be empowered to require the production of evidence, subject to ordinaryrules of admissibility, and must also be able to require a person to attend the inquiry to giveevidence or to provide a written statement. It must be an offence for a person to fail to doanything that is required of him or her regarding the production of evidence. It must be anoffence to do anything to distort or alter evidence provided to the inquiry;

(9) The inquiry panel must request the cooperation of agents and officials of foreign states whocan provide relevant evidence, and that the government should support such requests;

(10) The inquiry panel should be empowered to enforce cooperation from corporations doingbusiness in the UK who are alleged to have had knowledge of or been involved in any abusesthat are the subject of the inquiry;

(11) It is imperative that the inquiry report be published, and that any redactions for nationalsecurity reasons be agreed by the inquiry panel and be subject to review by a court. Theinquiry must be empowered to not only establish particular facts, practices and policies, butshould also consider the adequacy of measures in place to prevent the occurrence of anywrongdoing in the future. The final report must be made public and should at a minimuminclude the conclusions and recommendations based on findings of fact and applicable law,in sufficient detail to satisfy the requirement of full and public disclosure of the truth aboutUK responsibility for the human rights violations in question.

Involvement of Non-Governmental Organizations

The direct participation of civil society is imperative for the proper conduct of this inquiry.

First, the allegations of UK involvement in illegal conduct are wide ranging in time andnature. Various NGOs have been at the forefront of establishing such patterns of conduct,and are in a position to assist the inquiry in designing its scope and in pursuing certainlines of inquiry.

Second, the participation of survivors and victims, which is a requisite component of aneffective, human rights-compliant investigation, is complicated in many instances. Forexample, some who might have substantial evidence of great relevance to the terms of theinquiry remain in illegal detention in Guantanamo Bay and elsewhere. It is important thattheir voices should be heard.

Third, the credibility of this inquiry rests on the extent to which it properly engages withpublic concerns about these most serious allegations. Allowing for close NGO scrutiny willensure that the inquiry is seen to be robust and fair.

NGOs should have the opportunity to be present throughout the inquiry, including representationby counsel, and have the opportunity to make submissions regarding any aspect of the inquiry.

We believe that a human rights-compliant inquiry that provides full victim and NGO participationby implementing the above modest suggestions has every prospect of success, and encourage theinquiry’s engagement with the victims, their representatives, and the broader NGO sector.

Yours sincerely,

The AIRE CentreAmnesty InternationalBritish Irish Rights WatchCageprisonersJusticeLibertyThe Medical Foundation for the Care of Victims of TortureRedressReprieve

cc:

The Rt. Hon. Dame Janet ParaskevaThe Rt. Hon. Peter RiddellThe Rt. Hon. David Cameron, Prime MinisterThe Rt. Hon. Nick Clegg, Deputy Prime MinisterThe Rt. Hon. Baroness Neville-JonesSir Gus O’DonnellSir Peter Ricketts