The UK & torture: Oh no we don't! Bull****

[davidbfpo]

'Cruel Britannia: A secret history of torture' by Nicholas Cobain is the title of a new book on the history of the UK's military's use of torture from 1944:

http://www.amazon.co.uk/Cruel-Britan.../dp/1846273331

NT on Amazon.com, although it has been published for a month.

The book was discussed at The Frontline Club recently; link to the podcast:http://www.frontlineclub.com/cruel-b...-of-torture-3/

A comprehensive review by Nicholas Mercer:

Firstly, the book is explosive because it reveals direct participation by the United Kingdom in torture since 1944. This probably will come as a great surprise to many readers but the official line that “the British do not participate in torture”, is revealed as just part of a deliberate and well-practised line of deceit....The second reason why the book is explosive is because it exposes the institutional cover up that has been perpetrated throughout the post war years.....Finally, the most explosive part of the book is the fact that complicity in torture and rendition are potentially war crimes and are required to be outlawed in our domestic criminal law.

Link:http://www.opendemocracy.net/ourking...ory-of-torture

Nicholas Mercer being an unknown name to me, I followed a link and had a shock:

The army's former chief legal adviser in Iraq has accused the Ministry of Defence of moral ambivalence and a cultural resistance to human rights that allowed British troops to abuse detainees and beat the Basra hotel worker Baha Mousa to death.

Lieutenant Colonel Nicholas Mercer, now an Anglican priest, spoke exclusively to the Guardian in the week he was presented with an award by the civil rights group Liberty, and the appeal court threw the MoD into turmoil over the latest allegations of ill-treatment by troops in Iraq.

Mercer's advice on how British soldiers should treat prisoners was repeatedly ignored. Instead, he was effectively suspended – "sent into the wilderness," as he puts it.....he was vindicated in 2009 by the supreme court, which upheld the advice Mercer had given six years earlier: that British troops occupying a foreign country were bound by the Human Rights Act.

Link:http://www.guardian.co.uk/uk/2011/no...an-rights-iraq

Now a long time ago I remember the agony and more when it was clear torture had been used in Northern Ireland. Remarkably the 'lessons learnt', which included guidance from an outraged Lord Gardiner, then the head of the judiciary, had been "lost" by time Iraq came along.

Only this week have more documents been produced from the archives on deaths in Hola Camp, Kenya during the Mau-Mau campaign; a civil action is under-way by three Kenyan claimants and the policy 'Oh no we don't' remains:

The government accepts that the colonial administration tortured detainees, but denies liability.

Link:http://www.bbc.co.uk/news/uk-20543140

[davidbfpo]

The torture allegations from Iraq have a scheduled civil court hearing this week and one academic has written:

What happened to Baha Mousa, and how the army and the government responded to his death is emblematic of a whole system in operation … a callous culture that … permeated far up the command chain, both military and government....This is the crucial moment of decision....This is our last chance to get to the truth of what happened. This is what we demand of others, but we do not demand it of ourselves. What kind of message does that give the world about who we are?

Link:http://www.guardian.co.uk/uk/2013/ja...d-iraq-torture

[Jedburgh]

Sad and disappointing. Especially since the British Joint Services' interrogation training is very professional (no torture or 'coercive' methods in the curriculum), and in many ways superior to the manner in which US Army interrogators are trained.

[davidbfpo]

Perhaps our resident legal minds can decipher this odd piece of UK criminal law, Criminal Justice Act 1988, Part XI Torture, Section 134:http://www.legislation.gov.uk/ukpga/1988/33/section/134

This passage caught my attention:

It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

This item was Tweeted AM today, in the belief it gave exemption from prosecution for acts of torture.

[jmm99]

Under the Criminal Justice Act 1988, 1988 c. 33, Part XI, Torture, Section 134, the essence of the crime is that the actor "intentionally inflicts severe pain or suffering on another ...." The US statute (18 USC 2340-2340B) is similar ("specifically intended"), but explicitly enhances penalties where death results.

It is not enough to prove that serious pain or suffering was inflicted. The added requirement is that the actor intended that result. Thus, the actor's state of mind is all important. For example, if the actor inflicts serious pain or suffering negligently or recklessly, the crime of torture is not committed - other crimes are possible, but not torture.

The defense deals with situations where the actor intentionally inflicts severe pain or suffering on another, but where:

(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

For example, a law enforcement officer severely injures (or kills) someone in the course of apprehension, in defense of self or others, or a "fleeing felon" if that is allowed by the applicable local law.

If we have a "wartime" situation, intentional infliction of severe pain or suffering upon enemy combatants is the norm; and, in fact, may extend to civilians - even though they are known to be within the scope of the force applied against the enemy combatants.

For example, a half dozen men (all PID'd as enemy combatants) enter a house by one entrance. A half dozen women and children (with no apparent link to the men) enter it by another entrance. Both groups are fleeing from a surrounding firefight. If a 500 lb bomb is used to level the house, the official calling that shot may well be within the law (Laws of War, LOAC, IHL), even though knowing full well that the strike will result in severe pain or suffering (and likely, death) to the women and children.

We (US) have the "justification defense" generalized in Rule 916 of our 2012 Manual for Courts Martial; at II-110 & II-111:

(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

The major material point of all this is that "justification" situations are very much fact dependent, which requires one to look at those facts from the viewpoint of the actor, his knowledge and his intent.

Regards

Mike