The British government are not planning on holding an enquiry into their possible complicity in overseas torture:
Kim Howells, Labour chairman of the Intelligence and Security Committee which scrutinises the secret services, said the issue of UK complicity in torture had been "clarified as far as it can be on the evidence that we have".
"I can tell you that we’ve found no evidence that there has been collusion between the intelligence services, any Government department and governments that torture their individuals," Mr Howells told the BBC Radio 4 Today programme.
… "So I’m very worried that these calls for judicial inquiries and so on are really treating the intelligence agencies as guilty until proven innocent and that’s very, very dangerous for the security of this country."
Mr Howells said "no government on Earth" could guarantee that prisoners who had been picked up and held in another country had not had their human rights abused in some way.
But, he added: "If we don’t have that information from other intelligence agencies, how can you be sure that there aren’t jihadists who are trying to murder citizens on the street or Irish republicans who want to blow people to pieces in order to further their cause? You have no way of knowing that."
What is all this ‘complicity’ stuff about anyway? The term is used in the UN Convention Against Torture. According to the best available formal legal pronouncement upon the subject (namely by the Hague Tribunal dealing with war crimes in former Yugoslavia) it means this:
(1) knowledge that torture is taking place;
(2) a contribution by way of assistance, which
(3) has a substantial effect on the perpetration of the crime of torture itself
Complicity is quite tightly defined here. Anyone complicit in torture would have to be close to the act of torture and ‘assisting’ it to the point of helping perpetrate the crime.
This is all very technical on one level, but very simple on another. Thus, if (say) HMG are getting via the CIA a stream of reports from eg Uzbekistan which might well have been produced by Uzbek torture, are HMG thereby ‘complicit’ in that torture by virtue of ‘acquiescing’ in it?
On the face of it, clearly not. There may well be knowledge or at least very strong suspicions, but there is no British ‘assistance’ or other contribution which impacts on the acts of torture (if any) themselves.
Hence strenuous efforts (a) to expand the definition, and (b) to get that expanded definition accepted as the new standard. The UK Parliamentary Joint Committee on Human Rights proposes this:
“complicity” means simply one State giving assistance to another State in the commission of torture, or acquiescing in such torture, in the knowledge, including constructive knowledge, of the circumstances of the torture which is or has been taking place.
‘Constructive knowledge’ means things you would have known about had you asked the questions you should have asked, or done what you should have done.
Whereas Craig Murray’s evidence to the Committee was rather too full of his own self-importance and lacking logical rigour (albeit with some strong and cogent points), the following evidence of Professor Philippe Sands (via same link) drills right down into these distinctions:
… one can easily imagine a situation where a government becomes aware that certain practices are being followed and makes it clear it does not accept that such practices are tolerable and that if they continue it will take further steps in order to indicate displeasure with what is going on. The “do nothing” option in effect can be seen as encouragement and in that sense may constitute in an indirect way a contribution to what is happening.
What I have just said is not that helpful in that everything turns on the specific facts of the scenario.
Exactly. It all turns on facts.
And how a court might look at such facts and their practical implications, weighing (ultimately) the risks of getting too close to nasty foreign regimes in their torturing ways against the risks which might come from ignoring intelligence reports going to threats to UK citizens.
See that House of Lords judgement. Professor Sands picks out the passages he likes in building his case for the Committee, but there are many others going in a quite different direction.
So it looks as if the government are comfortable (enough) that if the ‘complicity’ issue were to go a serious court, their arguments that in fact British officials and agents had kept sufficient distance from any overseas torture to stay within the best available legal standard (laid down by ICTY) and so not be ‘complicit’ would win the day.
Not an easy or even noble position to defend. But given the current state of international law not, perhaps, shameful or disgraceful either?
One final noteworthy point.
Craig throughout this matter has put a great emphasis on the minute written by FCO Legal Adviser Michael Wood to advise the FCO dealing with Craig’s many allegations, which he ‘published’.
It is obvious that this minute does not support Craig’s claims to any significant degree or at all. The minute narrowly answers a specific question said to have been raised by Craig himself, and does so accurately.
Professor Sands explains why:
I would not treat this document as a formal legal advice in that sense; it is a letter (sic) addressed to another civil servant that purports to address a very narrow question and does not purport to give a full reasoned legal opinion on the subject.
What I say in my written evidence is that insofar as the letter seeks to address a very narrow question it is not formally inaccurate but it misses the bigger point which was addressed in the previous witness’s contribution, namely in what circumstances might the receipt of information obtained through torture constitute complicity within the meaning of article 4 of the convention.
Which (alas) is what reasonable people are arguing about.