Case Watch: UN Committee Urges United Kingdom to Confront Iraq Abuses

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

On May 27, 2013, the UN Committee against Torture concluded that the United Kingdom needs to improve the way it addresses hundreds of UK-related detainee abuse allegations in Iraq. The committee made its observations in response to the United Kingdom’s fifth periodic report to the committee on the implementation of the Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment (CAT).

Many of the committee’s observations are unfavourable, as the Guardian’s Ian Cobain has written, but it’s worth noting the committee’s Iraq-related observations because they call for investigation procedures that differ from what a UK court had ordered just three days prior—a decision analyzed in a previous post.

The committee, when assessing the United Kingdom’s Iraq Historic Allegations Team (IHAT), said it was concerned with the IHAT’s composition and structural independence due to its “close institutional links with the Ministry of Defence.” The committee also said that it regretted that the United Kingdom continued “to resist a full public inquiry that would assess the extent of torture and ill-treatment and establish possible command responsibility for senior political and military figures.” Finally, the committee expressed deep concern that there had been “no criminal prosecutions for torture or complicity in torture involving State’s officials, members of the security services, or military personnel.” (The committee did recognize there have been a number of courts martial for other abuses committed in Iraq.)

Due to these deficiencies, the committee urged the United Kingdom to set up a single independent public inquiry “to investigate allegations of torture and cruel, inhuman, or degrading treatment or punishment in Iraq from 2003 to 2009, establish responsibilities and ensure accountability.” The committee also concluded that the United Kingdom should “ensure that all victims of torture, cruel, inhuman, or degrading treatment obtain redress and are provided with an effective remedy and reparations, including restitution, fair and adequate financial compensations, measures of satisfaction, and appropriate medical care and rehabilitation.”

The committee’s concluding observations were, in some ways, in sync with the May 24, 2013, UK court decision, Mousa and others v. Secretary of State. Although the committee focused on ill-treatment abuses under CAT, and the court focused primarily on right-to-life investigative duties under the European Convention of Human Rights, they agreed that the IHAT was deficient, that a more robust investigative mechanism was required, and that the investigation should be public. They also expressed concerns over a failure to prosecute.

But the committee’s concluding observations were also at odds with the UK court decision. Unlike the committee, the court determined that the IHAT did not lack independence, but said it was deficient in its inability to meet other investigative requirements of Article 2 of the convention. The court also rejected the need for a single overarching public inquiry, instead recommending that the Defense Ministry develop an inquisitorial procedure based on coroner’s inquests. The court also did not explicitly chastise, as the committee did, the IHAT’s failure to look into criminal responsibility arising from command responsibility. Finally, it is unclear if the committee would be in agreement with the court’s views that, with regard to the hundreds of ill-treatment allegations, stating “it may well be possible to conduct the inquisitorial inquiry into these cases by taking a sample of the more serious cases.”

What is also unclear is how, or if, the tensions between the committee’s concluding observations and the court’s decision will be resolved. Perhaps, on review, the committee will accept the court’s assessment of the IHAT’s independence and agree that the new court-ordered reforms meet CAT requirements. But the court placed a priority on investigating the allegations of UK-caused deaths over the allegation of ill-treatment, telling the Ministry of Defence to reflect on the Article 2 investigations to inform its approach to the Article 3 investigations. This means, probably to the committee’s frustration, it may be a while before the United Kingdom even embarks on reforming its ill-treatment investigation mechanism.

And, as noted in the our previous post, it also remains to be determined whether the Secretary of State can effectively implement the new inquisitorial inquiry process; whether those who are making the allegations against the United Kingdom find it satisfactory; and whether the new process will ever come before the European Court for further review.

Add your voice