Public Interest Lawyers (PIL) has lodged an application for judicial review at the High Court in London on behalf of two Iraqi civilians, Qais Jithii’ Talib Al-Saadoon and Gatii Hilal Zughair.
Mr Al-Saadoon and Mr Zughair are challenging the UK’s policy of transferring prisoners detained by British forces to the Iraqi national authorities despite the clear risk of torture inherent in such transfers. Both men were brutally tortured by the Iraqi police following their transfer from British custody in 2004.
The papers served by PIL are the initial step in a judicial review challenge that will bring the UK’s Iraqi prisoner transfer policy under the scrutiny of the UK Courts for the first time.
Both Claimants are from Basra and were arrested by Iraqi police and members of the Coalition Forces in November 2004 as they were leaving dawn prayers at a mosque in Az-Zubayr.
They were initially taken to a UK Armed Forces base, before being transferred into the custody of the Iraqi police. Mr Al-Saadoon and Mr Zughair were then subjected to serious and sustained acts of torture over a prolonged period. Following their ill-treatment, both were returned to the custody of UK Armed Forces at the Al-Shaibah Logistics Base and, again, were subjected to inhuman and degrading treatment, although this time at the hands of UK forces. Like over 140 other Iraqi nationals, they have previously issued a claim against the UK in respect of that direct ill-treatment.
This new judicial review challenge relates to the policy of the UK in transferring people detained in Iraq to the country’s national authorities in spite of the fact it was clear that such detainees were routinely subjected to torture and abuse by the Iraqi Police and Armed Forces. The legal challenge argues that to allow such transfers to take place breached the UK’s obligations under Article 3 of the European Convention of Human Rights (the prohibition on torture and inhuman or degrading treatment or punishment) as well as its obligations to uphold standards of international law prohibiting torture. It also argues that the UK’s failure to investigate the torture of the two men and to request their return when it became clear that they were at risk of torture breached Article 45 of the Fourth Geneva Convention.
The torture experienced by the Claimants following their transfer was medieval in its brutality. They were electrocuted, whipped with electrical cables, held by hooks in the ceiling in what is known as the ‘reverse strappado’ position so as to cause dislocation of their shoulders, and subjected to repeated beatings and physical abuse. The two men, who are Sunni Muslims, were also subjected to sectarian abuse by Shia members of the Iraqi police into whose custody they were handed.
At the time of their transfer, it is argued, British Forces would have been well aware of the serious risk of torture faced by those detained by the Iraqi national authorities. In February 2004, the International Committee of the Red Cross issued a confidential report to the UK and United States which raised serious concerns as to the evident systematic torture of of detainees in Iraqi detention centres. That report was leaked to the media. That report, combined with concerns raised by international human rights monitors, ought to have alerted Coalition forces to the need to exercise extreme caution when shaping their transfer policy and practice.
However, transfers such as those of Mr Al-Saadoon and Mr Zughair continued despite the UK’s positive obligations to ensure those in its custody did not experience torture or ill-treatment. This failure, and the policy of prisoner transfer as a whole, will now be considered by the UK Courts to determine whether the UK Government and British forces acted unlawfully.
Last year, WikiLeaks released some 400,000 secret US military logs that demonstrated more than ever before the endemic nature of torture by the Iraqi authorities following the US and UK-led invasion in March 2003. They also revealed a US Fragmented Order known as FRAGO 242 in which the chain of command made clear that breaches of the law of armed conflict not directly carried out by Coalition Forces but by Iraqi agents were not to be investigated.
PIL have been involved in cases that have already seen the establishment of two public inquiries into the conduct of British forces in Iraq: the now concluded Baha Mousa Inquiry, and the Al-Sweady Inquiry, which is in its initial stages. PIL have also previously brought a challenge to the British Armed Forces’ policy of prisoner transfer in Afghanistan (R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)). That case saw the Divisional Court rule that the Ministry of Defence was unable to transfer detainees to Afghan prisons and, in particular, to the National Directorate of Security in Kabul, where there was a real risk that torture and/or serious mistreatment would occur. It is hoped that this new challenge will see the High Court enforce the same obligations in the Iraqi context.
PIL’s Jim Duffy said today:
“The last US and UK troops might have left Iraq, but their legal obligations to its people will follow them home. If, like the US, British Forces turned a blind eye to the torture of Iraqis it transferred into the custody of known torturers, then that is a very serious breach of the prohibition of torture which might have resulted in the extreme suffering and in some cases killing of many people.”
The case calls for a declaration that the Claimants’ transfer was unlawful, in breach of the MoD’s policy and national and international law, and demands an independent investigation. The Secretary of State for Defence, Philip Hammond, is required to respond to the claim on 3 January 2012.
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