• Responsibility 'remains with British troops'
• Risks could lead to ban on rendition
By Duncan Campbell
September 29 2008
British troops who hand over prisoners in Iraq to US military personnel could find themselves facing prosecution, according to a legal opinion compiled for parliament. The finding has led to calls for the British government to rethink its current policy and investigate how the US treats its prisoners, and whether torture is employed against them.
Earlier this year the all-party parliamentary group on extraordinary rendition sought legal opinion from Michael Fordham QC on whether a human rights violation would arise under the European convention on human rights (ECHR) and the 1998 Human Rights Act (HRA) if an individual in British detention in Iraq were handed over to US military personnel, "despite substantial grounds for considering that there is a real risk of that person being subjected to torture or inhuman and degrading treatment".
The conclusion reached by Fordham and his colleague Tom Hickman is that an offence would definitely have been committed. If acted on, the opinion could mean that UK troops would not be allowed to "render" detainees to the US military until it was clear that they would no longer face the possibility of torture or ill-treatment.
What prompted the inquiry was a statement made in February this year by Ben Griffin, a former SAS soldier who was on active service in Iraq. In his statement, Griffin said that he was "in no doubt" that individuals handed over to the US military "would be tortured". He cited what had happened to those detained at Guantánamo Bay, Bagram airbase and Abu Ghraib prison.
The opinion adds: "UK forces operating in Iraq are potentially also subject to UK criminal law, tort law and Iraqi law. Notably, the Criminal Justice Act 1988 makes it a criminal offence for a public official, whatever his nationality and wherever located, to commit an act of torture."
Andrew Tyrie, the Conservative MP who chairs the committee which commissioned the report, said there had been a number of allegations that UK forces had been capturing people and handing them over to US authorities, knowing that these detainees were at risk of being tortured or mistreated.
"I commissioned a legal opinion to establish whether the UK acted unlawfully when they were handed over," said Tyrie. "I now have the answer. The UK remains legally responsible for the subsequent treatment of anybody who has been detained by the UK. It is likely that British policy on this area is not only ethically questionable but is also unlawful. The government now needs to radically rethink its policy on this issue."
Clive Stafford Smith, director of the legal action charity Reprieve, also welcomed the findings. "We are delighted that the all-party parliamentary group has recognised the illegality of British troops handing over prisoners to US custody in Iraq, " he said. "These prisoners promptly disappear into an unaccountable prison network in which over 20,000 prisoners are held for illegal interrogation and torture. If it is confirmed that this has been happening, the British government must immediately reveal how many people have been handed over, where they are now, and what has been done to them."
Paul Marsh, president of the Law Society, called on the government to investigate what happens to prisoners rendered from British custody. "Extraordinary rendition has been used by some states as a means of bypassing the formal justice system," said Marsh. "To do so is a breach of the rule of law and puts individuals at risk of ill-treatment. The Law Society calls on the UK government to look beyond assurances from other countries and positively investigate and monitor whether individuals rendered from British custody are receiving equivalent standards of due process. It is time we returned to our values in the rule of law."