UN Report highly critical of rendition, torture and other abuses sanctioned by intelligence services; singles Britain out for specific criticism

March 9, 2009

In a report that has far-reaching implications for the mistreatment of Binyam Mohamed, Martin Scheinin (the UN Special Rapporteur on the Protection of Human Rights While Countering Terrorism) will present his report on intelligence agencies, and their lack of accountability on Tuesday, March 10, 2009.

The report is specifically critical of the UK in many instances, placing the government in the uncomfortable company of various torturing regimes. The report highlights the illegal cooperation between Britain and the US on rendition; Britain is accused of cooperating with various sordid regimes that abuse prisoners (including Morocco, where Binyam Mohamed was tortured; and the report calls for much more careful oversight of the intelligence community.

An overview of the report is included below.

“The UN has accused Britain of cooperating with illegal renditions perpetrated by the US, and of providing intelligence to torturers – all of which is rather familiar to anyone familiar with the abuse of Binyam Mohamed,” said Reprieve Director Clive Stafford Smith. “The government must take this international criticism to heart and, instead of merely repeating platitudes about being opposed to torture, must show that when a British agent discovers some victim in some foreign torture chamber, Britain will take action to stop the abuse.”


Background to tomorrow’s report:

Martin Scheinin (the UN Special Rapporteur on the Protection of Human Rights While Countering Terrorism) is presenting his report on intelligence agencies and their lack of accountability on Tuesday, March 10, 2009 (it is previewed at http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf).

The report is specifically critical of the UK in many instances, placing the government in the uncomfortable company of various torturing regimes. The report highlights the illegal cooperation between Britain and the US on rendition; Britain is accused of cooperating with various sordid regimes that abuse prisoners (including Morocco, where Binyam Mohamed was tortured; and the report calls for much more careful oversight of the intelligence community.

The following are excerpts from the synopsis of the report. For example, the report will say: “In combination with the frequent problem of poor-quality data, which can be wrongly recorded, wrongly interpreted or outdated when matched with other databases, major concerns arise that innocent people are identified as terrorist threats.” Id. at para. 34. The footnote refers to Bisher al Rawi – who was rendered from the Gambia to Afghanistan and Guantánamo Bay based in large part on information fed by the UK to the US.

Closed secret hearings

The report goes on to warn that some countries are skirting the rule of law by using intelligence to hold people after secret hearings:

“The Special Rapporteur is concerned that in several countries the power shift from law enforcement agencies to intelligence agencies for countering and preventing terrorist threats was accomplished precisely to circumvent such necessary safeguards in a democratic society, abusing thereby the usually legitimate secrecy of intelligence operations. This shift can ultimately endanger the rule of law, as the collection of intelligence and the collection of evidence about criminal acts becomes more and more blurred. This leads to a situation where States begin preferring to use undisclosed evidence gathered by intelligence agents in administrative proceedings over attempts to prove guilt beyond reasonable doubt in a criminal trial.” Id. at para. 37. This is a direct criticism of the policy of detaining prisoners without trial in such notorious cases involving Belmarsh.

The report will strongly emphasize the need for close rules governing the intelligence agencies to ensure that they comply with human rights law: “As the main beneficiary of intelligence information, the executive must effectively supervise and direct the actions of the intelligence agency. These directions should be put in writing, and outline in detail which actions the agencies may and must not carry out vis-à-vis which persons.” Id. at para. 42. This is exactly what has not been done in the UK –there is no clear direction (apparently) that when the intelligence services learn that a British resident (such as Binyam Mohamed) is being tortured, they are required immediately to take action to stop that torture. This is precisely what we have asked of the government, without a positive response.

And, seemingly written with Binyam Mohamed’s case in mind: “This legitimate cooperation often poses accountability problems. This is mainly because on the one hand domestic accountability mechanisms only tend to take into account the actions of domestic agencies because their mandate does not cover the cooperation of their agencies with third partners or, where they are mandated to scrutinize cooperation, these powers are often very limited. On the other hand, two key concepts that underlie most top secret intelligence-sharing agreements, namely the “need to know” approach to intelligence distribution and the policy of “originator control”, increase the possibility that many countries, including liberal democracies opposed to torture, become complicit in international crimes. Because of the desire to maintain cooperation from (especially more powerful) foreign agencies, intelligence services have limited incentives to request clarification on how certain information has been obtained or to ensure that the information they share will not be used in a manner that leads to human rights violations. At the same time domestic oversight bodies are often powerless to oversee the adherence of a foreign intelligence agency to any conditions attached to outgoing information.” Id. at para. 48. This is precisely the issue that has arisen in Binyam Mohamed’s case, to the extent that the UK is relying on the “originator control” protocol to withhold evidence of torture from the British public.


The report also deals with rendition: “The Special Rapporteur remains deeply troubled that the United States has created a comprehensive system of extraordinary renditions, prolonged and secret detention, and practices that violate the prohibition against torture and other forms of ill-treatment. This system required an international web of exchange of information and has created a corrupted body of information which was shared systematically with partners in the war on terror through intelligence cooperation, thereby corrupting the institutional culture of the legal and institutional systems of recipient States.” Id. at para. 51.

Britain is singled out in this regard, and is placed in fairly dubious company as a country that has assisted in providing information that has led directly to prisoners being rendered to countries that torture: “States such as Bosnia and Herzegovina, Canada, Croatia, Georgia, Indonesia, Kenya, the former Yugoslav Republic of Macedonia, Pakistan and the United Kingdom of Great Britain and Northern Ireland have provided intelligence or have conducted the initial seizure of an individual before he was transferred to (mostly unacknowledged) detention centres in Afghanistan, Egypt, Ethiopia, Jordan, Pakistan, Morocco, Saudi Arabia, Yemen, Syria, Thailand, Uzbekistan, or to one of the CIA covert detention centres, often referred to as “black sites”.” Id. at para. 52. Once again, Binyam Mohamed was rendered to Morocco (and then Afghanistan) after the UK provided intelligence that very likely resulted in that choice of destination (since the UK suggested he lived in a Moroccan area in London).

The report also talks about the complicity of agents in torture and rendition: “The Special Rapporteur is concerned about the participation of foreign agents in the interrogation of persons held in situations that violate international human rights standards. The difference that some Governments make between intelligence and law enforcement personnel is of limited relevance, as the active participation through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where his rights are violated, can be reasonably understood as implicitly condoning such practices.” Id. at para. 54.

Again, the British are specifically singled out in this regard, in circumstances specific to Binyam Mohamed’s case. See footnote 63 (addressing British, Australian and US interrogation of prisoners in Pakistani custody, etc.). Again, the specific factual scenario of Binyam’s case is addressed in a footnote: the concern about illegality “is particularly the case if – as alleged in Pakistan – persons are held at the request and with the approval of foreign agents.” Id. at footnote 67.

Criminal responsibility evident in Binyam Mohamed’s case against the state 

In terms of the pending issues in Binyam Mohamed’s case, the Rapporteur states as follows: “the Special Rapporteur believes that the active or passive participation by States in the interrogation of persons held by another State constitutes an internationally wrongful act if the State knew or ought to have known that the person was facing a real risk of torture or other prohibited treatment, including arbitrary detention.” Id. at para. 54. In other words, in the Rapporteur’s view, the material discussed by the British judges in Binyam Mohamed’s case would justify the finding of criminal responsibility. This raises the question of the Attorney General’s current review – why is it taking so long?

Finally, the report deals with liability, and the efforts being made by the UK and others to cover up embarrassing and perhaps criminal activity by claiming national security: “While the Special Rapporteur recognizes that States may limit the disclosure to the general public of specific information which is important for the protection of national security, for instance about the sources, identities and methods of intelligence agents, he is nevertheless worried by the increasing use of State secrecy provisions and public interest immunities for instance by Germany, Italy, Poland, Romania, the former Yugoslav Republic of Macedonia, the United Kingdom or the United States to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and – most importantly – liability.” Id. at para. 59.

Recommendations by the Rapporteur: 

  • The Rapporteur makes several recommendations, including the need for genuinely independent oversight committees:
  • Parliamentary oversight committees, ad hoc parliamentary inquiry committees, royal commissions, etc. should have far-reaching investigative powers, access to the archives and registers, premises, and installations of the executive and the agency, in order to fulfil their domestic oversight function. These bodies should also be able to proactively investigate the relationship of a domestic agency with a particular State or service, or all exchanges of information with foreign cooperating services pertaining to a particular case. After their inquiry these bodies should produce simultaneously a confidential report for the executive and a separate report for public disclosure. (Id. at para. 68)
  • The Special Rapporteur makes it clear that the law governing intelligence cooperation must respect human rights:
  • Intelligence cooperation must be clearly governed by the law (including human rights safeguards) and by transparent regulations, authorized according to strict routines (with proper “paper trails”) and controlled or supervised by parliamentary or expert bodies. (Id. at para. 70)
  • There must be full investigations into the renditions that have occurred, including compensation for the victims:
  • The Special Rapporteur urges all relevant authorities of countries that have allegedly participated in extraordinary renditions, torture, disappearances, secret detentions or any other serious human rights violation to investigate fully any wrongful acts of intelligence agencies committed on their territory. States must ensure that the victims of such unlawful acts are rehabilitated and compensated. States must also stop transferring anyone to the custody of the agents of another State, or facilitating such transfers, unless the transfer is carried out under judicial supervision and in line with international standards. (Id. at para. 72)
  • Finally, the states must make sure that their intelligence sharing agreements comply with international law, and make it clear that any material that is shared involving torture and other crimes will be subject to proper review:
  • The Special Rapporteur recommends that States insert a clause in their intelligence-sharing agreements which makes the application of an agreement by a party subject to scrutiny by its review bodies and which declares that the review bodies of each party are competent to cooperate with one another in assessing the performance of either or both parties. (Id. at para. 73)

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