A recently released report of the UK Intelligence and Security Committee of Parliament under the chairmanship of conservative MP Dominic Grieve QC has received remarkably little media coverage in Australia. There are a number of reasons to be concerned about the information contained within the report, not least because it raises serious questions about the level of Australian complicity in the behaviour described in the report.
Following the events of 11th of September 2001 the administration of US president GW Bush announced its “war on terror.” Components of this “war” including the setting up of secret and not so secret detention camps. Prisoners were “rendered” (i.e. kidnapped) to these camps where many have been held indefinitely, without trial, without due process of law, and as the UK report makes clear, tortured.
Information gained by torture, or enhanced interrogation is it was euphemistically described, was then shared by the US with its allies. Two Australian citizens, David Hicks and Mamdoub Habib, were victims of this process.
The UK report makes clear that the British were fully complicit in this process. They knew what the Americans were doing. They were present when interrogations were carried out. They supplied questions to be asked under torture, and in 198 cases documented by the Committee received information they knew to have been obtained by torture.
The definition of torture is found in a number of legal instruments. Its most common form refers to “any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes all of training from them or a third person information or a confession.”
Torture is prohibited for example, in the International Covenant on Civil and Political Rights; (ICCPR) the UN Convention against Torture and other Cruel Inhuman and Degrading Treatment or Punishment (UNCAT); and the statute of the International Criminal Court (ICC).
The UK and Australian governments have ratified all of these Conventions and other Articles of international law. The US has neither signed nor ratified the Optional Protocol of the Convention against Torture, although it did ratify the original Convention. It has signed but not ratified the statute of the ICC.
To render someone for the purposes of torture, to torture them yourself, or to aid or abet a third party country to do so on your behalf, as happened for example in Poland, Egypt, Syria and Thailand which were all “black sites” where torture was either done by or on behalf of the United States, is clearly illegal under international law.
While the Grieve Committee could determine no instances of UK personnel actually conducting the torture, it was beyond question that they were a party. This conduct was carried on under the Blair and Brown Labour governments in the UK, as well as their Conservative successors. Yet when the UK parliament’s Committee on Foreign Affairs questioned Jack Straw, the relevant Cabinet Minister in the Labour governments about illegal renditions, he claimed that such allegations were “conspiracy theories,” and that there was “simply no truth in the claims that the UK has been involved in renditions.”
That was plainly a lie, and Straw was equally plainly misleading parliament, a particularly serious matter. Yet neither he, nor any other government minister or senior bureaucratic official have ever been held to account.
Such a lack of accountability was not confined to renditions and torture. The 2016 Chilcot Report also made clear that the UK government of the time (under Blair) had willfully lied and mislead both Parliament and the public about Iraq’s alleged weapons of mass destruction. The British and the Dutch governments to their credit at least held inquiries, which produced damning reports, which is more than can be said of the Australian government. That latter body has consistently refused to conduct a proper enquiry, much less hold any ministerial or governmental officials accountable for their part in taking Australia into a disastrous and illegal war.
The culture of cover up was not confined to Iraq. One of the most revealing passages in the Grieve committee report (at paragraph 14) is their recounting of how UK Prime Minister Theresa May refused to allow senior officials to give evidence, claiming “legal uncertainty” over their protection from prosecution. As the Committee notes, this claim was made despite statutory immunity being given to witnesses under the committee’s empowering Act.
Only four of 23 requested witnesses were allowed by May to appear before the Committee and even they were not allowed “to talk about the specifics of the operations in which they were involved, nor fill in any gaps in the timeline of events” (paragraph 13).
The Committee understandably considered that these restrictions hampered their ability “to conduct an authoritative Inquiry and produce a credible report” (paragraph 14). They wrote to the Prime Minister on 23 March 2017 requesting a reconsideration of her decision. They did not even receive the courtesy of a reply.
Apart from the above-mentioned two Australian citizens, it is not known what role if any Australian officials played in the rendition and torture program which, as a recent (June 2018) Amnesty International report makes clear, in turn corroborating a June 2017 Associated Press report, is ongoing in Yemen and elsewhere.
Mr Habib had alleged that when he was first tortured in Pakistan an Australian consulate official was present (Sydney Morning Herald 7 January 2005) and later also when he was tortured in Egypt (SMH 8 January 2011). The matter was settled out of court and Mr Habib paid compensation. Because of the secrecy surrounding the settlement we do not know, and may never know, the full truth.
The other reason for drawing an inference that Australia was at the very least aware of the renditions and torture being carried out by its “joined at the hip” US ally is its membership of the Five Eyes intelligence sharing arrangement with the US, Canada, the UK and New Zealand.
Under this secretive arrangement the five parties have an agreement, inter alia, to share intelligence obtained and by any of the other parties. It would defy commonsense to deny that at least some of that intelligence was obtained from the torture program that is demonstrably part of the information-gathering mode of Australia’s US ally (Sands, Torture Team 2008).
Again, we are unlikely to ever fully know the truth, as this government, so fond of reiterating its belief in and support for, the rules based international order, goes to considerable lengths to conceal any information that might expose that claim for the falsehood that it is. As the recent decision to prosecute a lawyer and a former intelligence officer for disclosing Australia’s disgraceful conduct in bugging the cabinet room of the East Timor government to obtain a commercial advantage in contested oil and gas rich waters shows, it is not the perpetrators who are punished but those who reveal the illegal conduct.
The reluctance of the Australian media to publicize the findings of the Grieve Committee and draw some inevitable conclusions about likely Australian complicity is a matter of concern. The studied silence from the government further illustrates the hypocrisy of their protestations about its commitment to international law.
James O’Neill, an Australian-based Barrister at Law, exclusively for the online magazine “New Eastern Outlook”.