Perhaps, due to the very tough libel laws in Britain, the editor of the article I’m citing in this diary saw fit to include the following disclaimer. In the interest of CMOA, (coverin’ my own ass) I shall also include it.
Editor's note: This story is shaping up to be a significant scandal in the United Kingdom. It should be noted that Lord Goldsmith has vigorously denied the charges contained in this article.
U.K. Attorney General Lord Goldsmith is presently facing accusations that he told the Army that its soldiers were not bound by the Human Rights Act when arresting, detaining and interrogating Iraqi prisoners. Hmm, sounds vaguely familiar.
Anyway, It seems previously confidential emails, observed by the Independent, sent between London and British Military Headquarters in Iraq soon after the start of the occupation, suggested that Lord Goldsmith advised Officers in the field to adopt a "pragmatic" course when handling prisoners, saying it was not necessary to abide by the "higher standards" of the protections afforded by the Human Rights Act (HRA)
According to human rights attorneys in Britain, Lord Goldsmith’s actions were tantamount to advising the military to disregard the Act, and instead, abide only to the Geneva Conventions. As it turned out, the British Army’s senior attorney in Iraq gave contradictory advice to field officers to abide by the higher standards dictated by the Act.
Yesterday, various international experts and rights groups called on the British government to disclose the attorney general’s legal opinion, which they claim, if followed by soldiers in the Iraqi theater, could have helped create a culture of abuse of Iraqis.
The Independent has the story: (via AlterNet)
Last month, the first British soldier convicted of a war crime was jailed for a year and dismissed from the Army after being convicted of mistreating Iraqi civilians, including the hotel worker Baha Mousa, who died of injuries at the hands of British soldiers. In 2005, three British soldiers were jailed by a court martial in Germany after "trophy" photographs emerged, showing Iraqi detainees being abused at an aid center called Camp BreadBasket. There are about 60 more allegations of abuse being prepared for legal claims by rights groups.
Last week, Parliament's Joint Committee on Human Rights wrote to the government to ask for an "explanation" about the evidence of torture in the Baha Mousa court martial.
Chairman of the committee, Andrew Dismore MP, said:
"We have asked the Ministry of Defense to explain what appear to be stark inconsistencies in the evidence presented to our committee about the use of inhuman and degrading interrogation techniques prohibited as long ago as 1972."
Apparently, emails sent just after the invasion indicate the attorney general’s belief that British soldiers in Iraq weren’t bound by the Act. But that’s not all. The emails also exhibit a wide difference of opinion between Lord Goldsmith and the Army’s most senior legal advisor on the ground, Lt. Col. Nicholas Mercer, who insisted that:
"... the European Court of Human Rights (ECHR) would apply" to troops in Iraq.
The legal advisor to Permanent Joint Headquarters, Rachel Quick, wrote to Col. Mercer on one occasion, giving her interpretation of Lord Goldsmith’s advice. She said his view:
"... was that the HRA was only intended to protect rights conferred by the convention and must look to international law to determine the scope of those rights."
She continued by saying that Lord Goldsmith’s advice -- supported by the barrister who advised the attorney general on the legality of the war -- Professor Christopher Greenwood, was that in the circumstances, the HRA did not apply:
"For your purposes," she wrote, "I would suggest this means no requirement for you to provide guidance on the application of the HRA. I hope this is clear. With regard to the detention of civilians, I will look at your documents in more detail and discuss with FCO, MoD legal advisers. Although my initial thoughts are you are trying to introduce U.K. procedures to a Geneva Convention IV context. Whilst this may be the perfect solution, it may not be the pragmatic solution. Again, we raised this issue with the AG and got a helpful steer on the procedures. I'll aim to try to produce guidance, taking into account their advice on the detention of civilians."
Legal advisors on the ground in Iraq voiced such concerns over Lord Goldsmith’s advice that the MoD sent the senior advisor at the foreign office, Gavin Hood, to visit the Permanent Joint Headquarters to quell apprehension.
Back to the article:
Crucially, the emails make clear Lord Goldsmith's legal opinion was not shared by Col. Mercer, who contacted his superiors in London to ask for guidance after he had witnessed the hooding of 40 Iraqis at a British POW camp in March. The men were all forced to kneel in the sun and had their hands cuffed behind their backs.
Worried this could leave the soldiers vulnerable to prosecutions, he told the MoD that in his view soldiers should behave in accordance with the "higher standard" of the Human Rights Act.
The response from the Permanent Joint Headquarters in Qatar indicated that Lord Goldsmith had told the MoD the human rights law did not apply in Iraq, and that soldiers should just observe the Geneva Conventions in general.
When Col. Mercer voiced his disagreement with the government’s most senior law officer, he was told:
"... perhaps you should put yourself up as the next attorney general."
But Col. Mercer was blocked again at a "high level" when he requested that a British judge fly out to oversee procedures used in detaining Iraqi prisoners. However, his interpretation of the law has since proven to be correct. Subsequently, the Court of Appeal issued a ruling saying British soldiers were indeed bound by the HRA, which effectively bans all forms of torture or the degradation of prisoners.
Released documents show that as early as March 2003, the International Committee of the Red Cross had begun to investigate complaints of alleged war crimes by British soldiers at the very same POW camp in southeast Iraq that had originally led Col. Mercer to intervene. Apparently, The British government worried so much about it that they sent in a political advisor from London to smooth over Red Cross disconcertions.
According to International law:
"Torture is defined by international law as any threat or use of severe pain, physical or mental, against an individual with the intention of obtaining a confession or other information. Under the U.N. Convention Against Torture, 40 states, including Britain, have agreed not to engage in such practices."
During military conflict, the third and fourth Geneva Conventions protect prisoners of war and civilians who are held by soldiers. Torture is also defined as a war crime by the International Criminal Court, which describes it as the unlawful infliction of severe pain.
Many of the incidents of abuse committed by British soldiers on Iraqi civilians may fall outside the strict definition of torture under international law.
But under the European Convention of Human Rights, incorporated in the Human Rights Act 1998, there is no requirement that the threat or use of pain should be severe for an act to fall foul of the law.
Finally, in a pseudo Orwellian explanation Abu Gonzalez would indeed be proud to put his ‘X’ on, (are these guys somehow related?) Lord Goldsmith argued that due to the fact that British forces did not have complete control of Iraq -- the country was not included in their jurisdiction – and therefore the HRA did not apply. HUUHHH? (<-- best Scooby Doo voice)</p>
Inevitably, the attorney general lost his argument. The Court of Appeal handed down a ruling saying Iraqi citizens in custody and the soldiers detaining them were/are all subject to the HRA. The House of Lords will settle the case later this year. If the government loses, it’s expected that the upper house will hold full and independent inquiries into every allegation of every death, every ‘disappearance’ and every complaint of torture against British soldiers in Iraq.
I’m heartened by the British high court ruling. But I wonder if it’s enough inevitably. In recent years -- on both sides of the Atlantic – in countries that once shunned even the thought of "torture," the inhuman practice of inflicting pain and anguish has reemerged – and it’s stronger than ever.
Bush was right in a way; this is a battle of civilizations. But where does it lead us? What happens in a war if neither side deserves to win?
Peace