I have written at length here and else where about the moral and policy challenges arising from engagement with wicked regimes elsewhere in the world. See this piece in January about the lawsuit against former MI6 officer Sir Mark Allen over his alleged role in ‘rendition’ to Libya:

In the real world of foreign policy it makes no sense to take a stark “no compromise” position of substance with dictatorships. They exist. They have UN and other votes. They can export trouble. They probably have Ambassadors in London and Washington. Your aircraft may need to fly over their territory. They may agree with you on various obscure but essential international technical issues.

In short, it’s complicated.

You almost always end up with some form of “engagement”. But ad hoc technical exchanges or opportunistically looking for areas to build common ground is not the same thing as having a policy of Engagement — deliberately using a range of options (openly or otherwise) to bring out slow reforms in some other country.

This is what the Blair decision to “engage” energetically with Libya was all about. MI6 was acting under a clear political steer from the top of government to err on the side of “cooperation” rather than confrontation.

Does that mean that “anything goes” in advancing cooperation? Surely not. Lines need to be drawn, and hard decisions taken (see eg Al-Megrahi/Lockerbie).

Which brings us to this new situation: certain decisions concerning Libya under Gaddafi now call to be investigated as (perhaps) they strayed into territory which might be seen as unwise, immoral or even unlawful.

So be it. But let’s remember that MI6 is always very careful to get political clearance for sensitive operations. So while the police are emptying out MI6 filing cabinets, they might start asking T Blair, G Brown, J Straw and other Labour leaders the usual questions: What did you know about these renditions? And when did you know it?

And, as if by magic, Jack Straw and Tony Blair are now being threatened with litigation from Abdel Hakim Belhadj over the British government’s involvement in his transfer to Libya back in the Gaddafi period (2004).

There is (of course) no allegation that any British politicians or officials wanted or intended Belhadj to be mistreated/tortured. Rather that they were ‘complicit’ in the abuse he suffered at the hands of the Gaddafi regime. The argument will run that either they knew, or suspected, or reasonably should have suspected, that such abuse could occur.

So what does ‘complicit’ mean in these circumstances. I have looked at that that one here:

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.

The landmark House of Lords ruling in 2005 looked at various legal questions arising from dealings with regimes which practise torture and at the status of information known or suspected to have been derived from torture. It drew a vital and respectable distinction between the need for the executive part of government to fulfil its duty to protect the UK public, and what might or might not be used in court (eg could information possibly extracted under torture overseas be admissible as evidence against terrorist suspects? No).

What’s the point here?

The point is that dealing with vile regimes involve highly problematic policy choices. In Libya – NB in good part as a response to Nelson Mandela’s personal lobbying of Tony Blair – HMG decided to engage with Gaddfi and offered him a Deal: renounce your WMD and sort out Lockerbie, and in return rejoin the civilised world. This deal started to look very attractive to Gaddafi after Saddam fell, and so it was struck.

Thanks to brilliant British and US diplomacy, Libya’s capacity to wage international mischief using weapons of mass destruction almost completely vanished. But in return for getting that outcome, we had to ‘engage’ a lot more closely with the Gaddafi elite. It looks as if that in part ended up with helping them track down some particularly annoying regime opponents.

Jack Straw and Tony Blair presided over that policy, so if the litigation has to fly around it is right too that they be joined in any action. MI6 operational submissions typically are signed off by top FCO officials or the Foreign Secretary personally, depending on their perceived problematicness if things go wrong. On especially sensitive requests No 10 would be consulted.

Note that there are different ways in which Straw/Blair could have directly endorsed any ‘rendition’ policy:

  • MI6 might have asked for and been given specific authorisation to help send Belhadj back to Libya
  • MI6 might have asked for general authorisation to help with a small number of specific rendition cases as and when opportunity arose, and then got on with it without any further submissions to the Foreign Secretary or No 10
  • MI6 might have been given a broad instruction to use their common sense in developing relations with Gaddafi’s people as part of the Deal, and then decided for themselves what actions might or might not be appropriate

One way or the other, there will be a very clear paper trail.

My view? That this litigation is pernicious, unprincipled and destructive.

Belhadj was abused (if he was abused) by Gaddafi’s people in Libya. The Libyan state should compensate him, not the UK taxpayer.

Under any conceivable accepted legal sense of the word ‘complicit’, HMG were not complicit in any abuse he suffered. If Belhadj wants to sue anyone he should sue the CIA, who apparently helped send him back to Libya. He has shown up in the UK courts only because the UK and ECHR human rights law allows almost any aggrieved person to sue for anything, undeterred by London lawyers who may well hope to get huge fees at taxpayers’ expense.

NOOOOO! hoot the human rights industry. It was torture! The full truth must come out!

Wrong. If we are to have any intelligence effort at all, it must be allowed to operate under reasonable if confidential democratic control and within a decent legal framework.

That does not mean that the UK courts should assert to themselves the right to weigh the balance of fiendishly difficult policy choices. In this case the global cause of reducing weapons of mass destruction in the hands of an unstable dictatorship was a huge prize: if that meant doing Gaddafi some murky favours, so be it. That sort of engagement is the only way to deal with bad regimes and help move them in a better direction.

It can’t be said often enough, so I’ll say it again:

Above all, if you engage with dirty people, how to avoid some of their dirt ending up on you? The promise of Engagement is that it offers the hope of slowly but surely changing things for the better; the danger is that while you are doing that, the key leaders of the regime in fact get far richer and learn how to be oppressive in new, cleverer ways.

So in the Libya case. The stupid/wicked/naive Brits trained the Libyan security forces! Of course we did: if you want to set in motion a process of reform and enlightenment in such regressive institutions, what else to do?

Think about what this means in practice. If the Libyan secret police are known torturers, you will be training them while their torturing ways continue. Even if the total amount of Libyan torture declines sharply as a direct result of Libyans cleaning up their act during the wider normalisation process, your trainers in one way or the other will be helping a torturing regime be more efficient.

Yet without outside democratic engagement (and the high-level civilisational rewards which rightly flow to the regime for behaving in a less extreme way) the chances of reducing Libyan torture at all (and thereby opening some small new space for opposition trends) are hugely reduced…

The whole squalid business will no doubt end up in some sort of pay-off, funded by the UK taxpayer. The imediate risk of course now is that as a way of asserting their own moral rectitude the current British government will be pleased to see former Labour Ministers writhing in legal knots, and so not defend the key principles involved with unrelenting severity.

This weakness in turn will prompt more lawsuits in the English courts designed to create maximum embarrassment and disruptiveness, and so mean that our intelligence services have to pull punches in tackling the planet’s villains on our behalf.

High-order weakness and policy folly – and corrosive of the very liberal values which supposedly inspire this litigation.