The United Kingdom’s potential complicity in rendition and torture is more extensive than previously known: an internal review of MI6 in October 2018 uncovered 15 files of torture or rendition which had not previously been discovered by internal reviews or inquiries into the British security services. The existence of the review and the cases were revealed in a witness statement of an MI6 officer known only as “AA” in a hearing for a judicial review on 9 June 2020. The challenge was brought by the human rights NGO Reprieve, David Davis MP, and Dan Jarvis MP.
The judicial review, which will be heard this autumn at the earliest, challenges the decision made by the government not to hold a public, judge-led inquiry into the involvement of British intelligence in torture and rendition against the backdrop of the post-9/11 war on terror. The June hearing was to determine whether the judicial review would be heard in secret.
The government’s position following the internal review, as set out in AA’s statement, was that “none of these 15 cases presents an extant and unmet investigative obligation”. In fact, the then-Deputy Prime Minister David Lidington, said in 2019 that there was no legal obligation to establish a further inquiry. The government is arguing for the judicial review to take place in secret as the claimants are not victims and therefore do not need to hear details of the cases in open court.
The claimants in the judicial review are not satisfied with this response, and believe that these 15 cases are just the tip of the iceberg. David Davis MP said that holding the judicial review in an “un-British, Kafkaesque, secret courts process” was a way for the government to “sweep any embarrassing revelations into a dark corner.” They are calling for a public inquiry and the publication of details of the cases, to properly test the conclusion not to investigate the allegations of complicity in human rights abuses.
The cases are suspected to be like those of Abdel Hakim Belhaj and Fatima Boudchar, who had been subject to rendition by the CIA and torture in Libya following a tip-off from British intelligence in 2004. Whilst MI6 officers are said not to have witnessed Belhaj’s torture, they did interrogate him afterwards. The UK government issued an apology to both Belhaj and Boudchar in 2018, stating that it had “learned many lessons from this period.”
PREVIOUS ENQUIRIES
There have been two recent inquiries into the potential complicity of British intelligence in rendition and torture. The first inquiry, led by Sir Peter Gibson, identified 200 cases of alleged involvement of the UK in mistreatment of detainees. It was boycotted by NGOs (including Reprieve) and was said to lack independence and the powers needed to get to the truth of the UK’s role in post-9/11 abuses. The inquiry was halted by the then-Justice Secretary Kenneth Clarke in 2012, who promised a fully independent inquiry once on-going police investigations into allegations from newly surfaced classified documents had been concluded, including the allegations made by Belhaj. This has not happened.
A 2014 inquiry by the government Intelligence and Security Committee (“ISC”) identified 232 cases in which the UK supplied questions or intelligence to liaison services knowing or suspecting that the detained had or was being mistreated. It also found that in 198 cases UK personnel received intelligence from liaison services obtained from detainees who they knew or should have suspected had been subjected to mistreatment. The ISC published its findings in 2018 but said that they were provisional and incomplete as the Committee had been blocked from interviewing multiple witnesses.
SECRET COURTS
The closed material procedures mechanism allows secret intelligence to be introduced by the government in claims for damages for mistreatment. The intelligence is only seen by the judge and a special advocate, who is appointed to represent the interest of the individual claimant. The special advocate is only allowed to provide a loose summary of the material to the claimant.
The so-called secret courts allow the government to properly defend a claim for damages rather than settle out of court due to not being able to produce relevant evidence on the grounds of national security. The closed material procedures have been criticised for creating an imbalance between the individual claimant and the government as the claimant will not be aware of all the allegations and information.
