Report of the committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism
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Report of the Committee
of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism
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To the Right Honourable EDWARD HEATH M.P.
1. We, the undersigned Privy Counsellors, were appointed to consider
3. We would like to record at the outset the Committee's appreciation
of the services of Mr. N. E. A. Moore, our Secretary, Mr. S. G.
Evans, our Assistant Secretary, and of all our staff.
4. Unfortunately we have been unable to agree and accordingly submit two reports:
II The minority report of Lord Gardiner.
1. "Terrorism" no doubt connotes violence, and violence for political ends. This could arise under normal conditions, in which case those suspected of such conduct would be dealt with in the same way as any other persons suspected of crime. We do not, however, construe our terms of reference as including in our inquiry ordinary police interrogation. We have accordingly confined our inquiry to interrogation in circumstances where some public emergency has arisen as a result of which suspects can legally be detained without trial.
2. We also read our terms of reference as calling upon us to inquire quite generally into the interrogation and custody of persons suspected of terrorism in such circumstances in the future, and not specifically in connection with Northern Ireland. In particular, we are not called upon to consider afresh matters already dealt with in the Compton Report (Cmnd. Paper 4823). Further, while in our view the use of some if not all the techniques in question would constitute criminal assaults and might also give rise to civil proceedings under English law, we refrain from expressing any view in respect of the position in Northern Ireland in deference to the courts there, before whom we understand proceedings which raise this issue are pending.
3. As our inquiry progressed it became clear that the only "procedures currently authorised", in the sense of authorised by the civil power, were such as could be said to comply with a Joint Directive on Military Interrogation dated 17th February 1965, as amended in 1967 as a result of the Report of Mr. Roderic Bowen Q.C. (Cmnd. Paper 3165). A note summarising the rules of this Directive was published in paragraph 46 of the Compton Report but for the sake of accuracy we set out in the Appendix such extracts from this Directive as are immediately relevant to our inquiry.
4. It will be seen that this Directive, though dealing with Internal Security operations, refers to Article 3 of the Geneva Convention Relative to the Treatment of Prisoners of War (1949) and then sets out the principles contained in that Article. However, that Convention, Convention No Ill, deals with international warfare and the more apt Convention is Convention No IV, dealing with internal civilian disturbances in which Article 3 is in the same terms.
5. Even so, it is arguable that Convention No IV itself does not apply in the emergencies which we are considering and the same can be argued in respect of our other international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3) and under the Universal Declaration of Human Rights (Article 5).
6. Whether any of these international obligations are applicable in circumstances such as have occurred in Northern Ireland and, if so, whether and to what extent the interrogations conducted there conflicted with those obligations is the subject of an application to the European Commission and accordingly we refrain from expressing a view thereon. It is, however, in any event unnecessary for us to express a view as to the applicability of any of these obligations. The principles in paragraph 5 (a) and (b) of the Directive fairly set out the obligations under the Geneva Convention and those to whom it is addressed are enjoined to comply with them. In other words, if that Convention is applicable, operations that are within the Directive will be in conformity with our obligations under that Convention. Moreover, since the obligations in Article 3 of that Convention embrace in all material respects our other international obligations, operations, which are in conformity with the former will also be in conformity with the latter obligations.
7. The first question therefore is whether the techniques in current use in fact comply with the Directive.
8. The Directive moreover merely sets out the limits beyond which action may not go, and does not attempt to define the limits to which it is morally permissible to go. Accordingly a second and more difficult question arises as to whether, even if the use of these techniques complies with the Directive, their application by a civilised and humane society can be morally justified. Some of the witnesses who appeared before us urged that this Country should set an example to the World by improving on the standards in the Geneva Convention and applying what were described as the basic principles of "humanitarian law". They took the line that, even though innocent lives could be and had been saved by the use of the techniques described in the Compton Report, a civilised society should never use them. They argued that, once methods of this character were employed on people in detention in order to obtain information from them, the society which employed them was morally on a slippery slope leading to the deliberate infliction of torture. It was better that servants of the State and innocent civilians should die than that the information which could save them should ever be obtained by such methods. This approach has the attraction of relieving one of the difficult exercises of judgment involved in deciding exactly how far it is permissible to go in particular circumstances.
9. Further, in considering the limits to which action may go,
terminology is not of great assistance. There is a wide spectrum
between discomfort and hardship at the one end and physical or
mental torture at the other end. Discomfort and hardship are
clearly matters which any persons suspected of crime, under ordinary
conditions, will suffer and that is accepted as not only inevitable
but permissible. Equally, everyone would agree that torture,
whether physical or mental, is not justified under any conditions.
Where, however, does hardship and discomfort end and for instance
humiliating treatment begin, and where does the latter end and
torture begin? Whatever words of definition are used, opinions
will inevitably differ as to whether the action under consideration
falls within one or the other definition.
21. I cannot conclude this report without mentioning two points:
"The High Contracting Parties undertake, in time of peace as in time of war to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population"
and as the other three Geneva Conventions contain somewhat similar Articles, and as we do not appear to be complying with these provisions, some step should now be taken to incorporate such instructions in military training.
As we have been told by those responsible that the army never
considered whether the procedures were legal or illegal, and as
some colour is lent to this perhaps surprising assertion by the
fact that the only law mentioned in the Directive was the wrong
Geneva Convention, it may be that some consideration should now
be given to this point.
(2) Finally, in fairness to the Government of Northern Ireland and the Royal Ulster Constabulary, I must say that, according to the evidence before us, although the Minister of Home Affairs, Northern Ireland, purported to approve the procedures, he had no idea that they were illegal., and it was, I think, not unnatural that the Royal Ulster Constabulary should assume that the army had satisfied themselves that the procedures which they were training the police to employ were legal.
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