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Brits’ Own Gonzo Scandal: AG advised Army to deny
Via NY Transfer News Collective * All the News that Doesn’t Fit
The Independent – May 29, 2007
http://news.independent.co.uk/uk/legal/article2591496.ece
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
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.
International law
* 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.
*
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