High Court to hear challenge over Govt. refusal to hold independent, judge-led inquiry into torture and rendition

December 2, 2019

The High Court will hear a judicial review challenge over the U.K. government’s refusal to hold a fully independent, judge-led inquiry into UK involvement in rendition and torture, a judge has ruled.

Human rights NGO Reprieve, politicians David Davis (Conservative) and Dan Jarvis (Labour) launched judicial review proceedings against the Government in October of this year.

In granting permission for the case to proceed, Mr Justice Hilliard wrote:

“The argument for an unmet investigative obligation emerges from the history of previous investigations which were not completed…witness testimony is particularly important where records may not tell the full story…systemic failings may not be satisfactorily identified in separate proceedings initiated by individuals. Although some lessons have undoubtedly been learned and improvements made, it is open to argument whether all the necessary lessons can have been learned if the facts have not been fully established.”

The British Government has never delivered on promises to hold a fully independent, judge-led inquiry into UK complicity in US torture and extraordinary rendition of individuals as part of the so-called ‘war on terror.’

In 2010, then-Prime Minister David Cameron announced the so-called Gibson inquiry to investigate UK complicity. The Gibson inquiry lacked the independence and powers needed to get to the truth of the UK’s role in post 9/11 abuses, and was boycotted by NGOs including Reprieve before being scrapped altogether by then-Justice Secretary Kenneth Clarke in 2012.

Sir Ken promised that a fully independent inquiry would be launched once ongoing police investigations were concluded, but this never materialised, and Sir Ken maintains that a fully independent inquiry is needed. In 2014, the Government announced an inquiry run by the Intelligence and Security Committee (ISC), but in delivering its report the ISC accepted its findings could only be treated as provisional, as Downing Street had blocked it from interviewing multiple witnesses.

Mr Justice Hilliard referenced the ISC’s findings extensively in his judgment granting permission for the judicial review to proceed:

“…the ISC found 232 cases recorded where UK personnel continued to supply questions or intelligence to liaison services after they knew or suspected (or should have suspected) that a detainee had been or was being mistreated. [And], there is reference to the impossibility of establishing the full facts from the documents alone. More generally, the ISC had said…that it was essential to hear from witnesses if the inquiry was to be thorough and comprehensive and in a position to reach properly considered, balanced and fair views about the facts. In the event, witnesses were not made available.”

In July of this year, then-Deputy Prime Minister David Lidington told Parliament: “I can confirm today that the Government has decided that it is not necessary to establish a further inquiry. There is no policy reason to do so, given the extensive work already undertaken to improve policies and practices in this area. The Government’s position is also that there is no legal obligation.”

In May last year, the Government was forced to give an unprecedented public apology to two people, Abdul-Hakim Belhaj and Fatima Boudchar, for British involvement in their rendition to torture. Mr Belhaj and Ms Boudchar were kidnapped by the CIA with the help of British intelligence in 2004, before being tortured in CIA custody. The couple were subsequently rendered to Gaddafi’s Libya. But evidence of UK complicity was uncovered essentially by accident.

In a fax discovered in an abandoned building after the fall of Gaddafi, former MI6 head of counter-terrorism Sir Mark Allen congratulated spy chief Mr Koussa on the “safe arrival” of Mr Belhaj and claimed that the intelligence about Mr Belhaj “was British”. Without that discovery, the UK’s role in Mr Belhaj and Ms Boudchar’s torture may never have been known. An independent, judge-led inquiry is urgently needed to uncover what may be many more cases that have thus far gone un-investigated.

Maya Foa, Director of Reprieve, said: “We are very pleased that the court has found that the Government has a case to answer over its failure to properly investigate ‘war on terror’-era torture and rendition. When the Government broke its promise to survivors of torture, it also broke the law. The powerful must be held to account so that victims can move on with their lives, but just as importantly because if we do not fully investigate our past mistakes, we are doomed to repeat them.”

David Davis said: “This is an excellent result. The court recognised in terms our argument that on the question of torture and rendition we cannot be certain that all the necessary lessons have been learned without a proper and full investigation of the facts.

Our argument all along has been that for our country to be confident that we occupy the moral high ground in any future conflicts we have to be certain that we are behaving with complete propriety. To do this we have to know and understand where we have gone wrong in the past. That was why Ministers like Ken Clarke gave the undertaking to have a judge led inquiry in the first place. It is clear from the Intelligence and Security Committee’s report that there are still incidents that remain un-investigated, which is why I believe that the government should stand by its original promise, and that is why this case is so important.”