United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 87. Humane Treatment
Section D. Persons deprived of their liberty
The UK Military Manual (1958) provides that prisoners of war “must at all times be humanely treated”.
According to the manual, all violations of the 1949 Geneva Conventions that do not amount to grave breaches are also war crimes. In the non-exhaustive list of such war crimes, the manual includes “ordering punishment drill for internees” and “exposing prisoners of war to public insults or mob violence”.
The UK LOAC Pamphlet (1981) provides with respect to prisoners of war (PW): “PW must at all times be humanely treated.”
The UK LOAC Manual (2004) states: “Prisoners of war must be humanely treated and their persons and honour respected at all times.”
In its chapter on the definition of armed forces, the manual states:
“Once [combatants] have become ill or have been injured or captured and as a result in any such case stop fighting, they have a right to humane and honourable treatment as prisoners of war. Their lives must be spared and it is the duty of their captors to protect and maintain them.”
In its chapter on internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.
Lastly, the manual provides that “the law of non-international armed conflict clearly requires that any person (whether a combatant or a civilian) detained by either dissident or government forces must be treated humanely”.
In 2003, in reply to a written question in the House of Lords, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
British Embassy staff in Kabul are in frequent contact with the ICRC, which monitors closely the situation and welfare of all prisoners in Afghanistan. However, the ICRC cannot provide full reports.
We are concerned about reported conditions in prisons across Afghanistan and have made clear to the Afghan Transitional Administration, which includes former Northern Alliance members, that we expect them, as the responsible authority for prisoners in Afghanistan, to respect their international obligations. This includes treating their prisoners humanely and in accordance with the Geneva Conventions and international human rights law.
In 2003, during a debate in the House of Commons, the UK Prime Minister replied to a question by a Member:
Mr. John Lyons (Strathkelvin and Bearsden): The Prime Minister will soon meet President Bush. Will he tell the President that the whole House deplores the degrading and demeaning treatment of US prisoners, servicemen and servicewomen? Will he also tell him that we expect the terms of the Geneva convention to extend to every prisoner, irrespective of nationality or location?
The Prime Minister: We will obviously ensure that any Iraqi prisoners are treated by us in accordance with the Geneva convention. If my hon. Friend is referring to Guantanamo bay – if that is the purpose of his question – I must tell him that those people are not the combat troops of a Government. As I have said before, however, it is important for them to be treated with dignity and for their human rights to be respected.
We have visited the British nationals in Guantanamo bay many times, and have investigated each allegation of abuse of their human rights, but let me say this to my hon. Friend. There is still information that is checked with people in Guantanamo bay that is of vital significance to protecting people in Europe. I am afraid that that is simply the reality of the situation, although, as I have said before, it cannot continue indefinitely: I agree that, at some point, it will have to come to an end.
As for what my hon. Friend said about the Iraqi treatment of American prisoners of war, I will certainly convey that message.
In 2003, in a reply to a written question in the House of Commons asking whether the UK Foreign Secretary had “called for the status of the prisoners held at Guantanamo Bay to be decided by a tribunal”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
Although the Foreign Secretary has not called for a tribunal to decide the detainees’ status, he has raised the issue of the detainees with Colin Powell several times, most recently on 23 January. Officials are in frequent contact.
We have made clear that whatever their status the detainees are entitled to humane treatment and, if prosecuted, a fair trial. We have been encouraging the US to move forward with the process of determining the future of the British detainees. We shall continue to do so.
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
My Lords, I repeat what I said a few minutes ago that captured Iraqis will be given prisoner of war status until they are proved otherwise and they will be treated according to our obligations under the Geneva Conventions. Captured Iraqi forces are likely to be prisoners of war unless they conceal weapons in the conduct of operations, in which case, as the noble Lord will know, they are unlawful combatants. Although unlawful combatants do not have prisoner of war status, we would have a duty, under international humanitarian law, which we would fulfil, to treat prisoners in a reasonable and humane manner. I hope that that answers the noble Lord’s question.
In 2003, in a reply to a written question in the House of Commons, the UK Minister of State for Defence wrote: “Any individuals captured or detained by United Kingdom of Great Britain and Northern Ireland forces in the Gulf will be afforded the appropriate status and enjoy the protection afforded by the Geneva Convention.”
In 2003, in reply to oral questions in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Government have long made plain that they will act in conformity with international law. The taking of prisoners of war is a recognised and legitimate means of reducing an enemy’s strength and fighting capacity. Iraqi military personnel who fall into the hands of United Kingdom of Great Britain and Northern Ireland forces are prisoners of war and therefore will be treated in accordance with the Geneva Conventions.
Baroness Williams of Crosby: My Lords, I am most grateful for that reply from the Minister. However, perhaps I may ask him about the position of those who are known as “unlawful combatants” and who may be paramilitaries of one form or another. Does the Minister agree that those people fall under Article 5 of the third Geneva Convention, to which the United Kingdom of Great Britain and Northern Ireland is a signatory, and should therefore, as in the first Gulf War, be brought before a competent tribunal to determine their status? Can the Minister assure us that neither POWs [prisoners of war] nor this group of people will in any circumstances be sent to Guantanamo Bay?
: My Lords, if such people are taken into the custody of the United Kingdom of Great Britain and Northern Ireland forces, they will be treated under the terms of humanitarian law and will of course be looked after both humanely and safely. If they are passed on to another coalition partner – for example, the United States – to be guarded, then an arrangement is in place between the coalition forces that the following will happen. First, there will be no transfer outside the borders of Iraq without the consent of the detaining power, which will in those circumstances be the United Kingdom of Great Britain and Northern Ireland. Secondly, jurisdiction will be exclusive to the detaining power – at least for events that occurred before their first detention. Thirdly, as the noble Baroness suggests, where there is any doubt about their status – sometimes there may be no doubt about it either way – the United Kingdom of Great Britain and Northern Ireland may well have to convene tribunals.
In 2003, in a reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:
Under the Geneva Convention, treatment of prisoners taken during hostilities is a matter for the Detaining Power. We will adhere to our obligations under the Geneva Convention towards all prisoners we capture. We are confident that the United States will do likewise.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
The assessment of the status of the detainees is a matter for the US, as the detaining power. We have, however, discussed the detainees’ status with the US authorities. They have told us that they do not consider any of the British detainees to be entitled to prisoner of war status. The US authorities have assured us that the detainees are being treated humanely and consistently with the principles of the Geneva Conventions.
Whatever their status, the detainees are entitled to humane treatment and if prosecuted, a fair trial.
In 2004, in a written answer to a question concerning, inter alia, instructions to treat prisoners and detainees in accordance with the 1949 Geneva Conventions, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
All British forces personnel in Iraq have the authority to detain persons who pose a threat to their safety or security and are, therefore, briefed in prisoner handling. This includes guidance that prisoners should be treated, at all times, fully in accordance with the Geneva Conventions.
In 2004, in a written answer to a question concerning, inter alia, the occupation of Iraq and compliance with international humanitarian law, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
All UK military personnel deploying to Iraq receive an aide-mémoire card on the law of armed conflict which clearly states that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture or inhuman or degrading treatment.
In 2004, in a written answer to a question concerning “the document issued to service personnel announcing the ban on the use of hoods for Iraqi prisoners”, the UK Secretary of State for Defence stated:
An amended Standard Operating Instruction on the Policy for Apprehending, Handling and Processing Detainees and Internees was issued on 30 September 2003. The following section of the document contains the relevant information.
a. Apprehended individuals are to be treated at all times fairly, humanely and with respect for his or her personal dignity;
b. Apprehended individuals are to be protected from danger and the elements;
c. Apprehended individuals are not to be kept in direct sunlight for long periods;
d. Medical care is to be provided if required;
e. Food and water are to be provided as necessary, having regard to any national, ethnic or religious dietary requirements;
f. Physical and mental torture, corporal punishment, humiliating or degrading treatment, or the threat of such, is prohibited;
g. The use of hooding and stress positions are prohibited;
h. Females are to be segregated from males;
i. Juveniles (under 15) are to be segregated from other apprehended individuals unless to do so would impose solitary confinement on the individual; and
j. It is a command responsibility to ensure that all apprehended individuals are treated in accordance with these principles.
In 2004, in a written answer to a question concerning, inter alia, measures to ensure respect for the prohibition on torture and other forms of ill-treatment in Iraq, the UK Minister of State for Defence stated:
Members of the United Kingdom armed forces are liable under both UK and international law for their conduct while on operations in Iraq. As such, military personnel are fully informed of their responsibilities and obligations under international human rights and humanitarian law, not only through training received prior to deployment, but also through specific Standard Operating Procedures. All UK military personnel deploying to Iraq receive an Aide Memoire card on the Law of Armed Conflict, which clearly states that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture or inhuman or degrading treatment.
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The British Government’s view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment ... We have made that clear to the United States authorities … In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
In 2007, in a written answer to a question in the House of Commons concerning sharing intelligence with States that permit torture, the UK Foreign Secretary wrote: “… our intelligence agencies routinely seek assurances from foreign liaison services on humane treatment of detainees.”
In 2010, the UK Secretary of State for Defence set out the Ministry of Defence Strategic Detention Policy, stating:
1.2 This Policy Statement, which is to be observed whenever UK Armed Forces undertake detention in an operation theatre, reflects the importance which I attach to ensuring the humane treatment of those it is necessary to detain in the course of our operations.
1.3 This is essential to ensure that we uphold our international obligations, to promote the legitimacy of an operation internationally and amongst the British public and to maximise support within the country where operations take place. …
2.1 This policy applies across the MOD and the Armed Forces and to all detention activities undertaken in military theatres of operation. It sets out the minimum standards which must be applied. All members of the Armed Forces, civilian employees and others (including contractors) who are involved with operational detention must comply with it. …
3.1 I require the Ministry of Defence and the Armed Forces to:
b. Ensure that all Detained Persons held by UK Armed Forces are treated humanely at all times, in accordance with applicable host state law, international law and UK law;
c. As a minimum, without prejudice to the legal status of a Detained Person, apply the standards articulated in Common Article 3 to the  Geneva Conventions. Where other standards are applicable they must be applied;
d. Ensure that the UK provides (as far as practicable in the operational circumstances) a safe and secure environment for Detained Persons;
i. Ensure that procedures are in place to investigate any allegations of abuse of detained persons by UK Forces promptly and effectively and to alert the host nation or relevant coalition partners to any allegations made to the UK of abuse by coalition partners or the host nation forces, so that an investigation can be conducted by the relevant authorities, alerting other detaining nations appropriately.
4.5 Intelligence collection is an important part of detention. It is governed by separate policy and oversight arrangements. However, the minimum standards set out in this policy apply equally to periods of intelligence collection during detention.
[footnotes in original omitted]
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated: “The Ministry of Defence is wholly committed to the humane treatment of captured persons … and to ensuring that practical and effective systems are in place to prevent a recurrence of abuse such as that which led to the death of Baha Mousa.”
The Ministry of Defence also stated: “Art. 10(1) ICCPR [1966 International Covenant on Civil and Political Rights] imposes a duty to treat detainees with humanity and respect for their inherent dignity but again this says nothing that is not already provided for in IHL.”
In 2010, the UK Army Inspector examined and assessed the implementation of policy, training and conduct of detainee handling by UK armed forces on operations. The Final Report by the Army Inspector states:
22. In 1972 the UK Government prohibited the use of 5 techniques (wall-standing; hooding; subjection to noise; sleep deprivation; deprivation of food and drink) as an aid to interrogation. … [E]arly in its work the Review identified that although the prohibition of those five techniques was clearly set out in JDP [Joint Doctrine Publication] 1-10, it was not set out clearly and unambiguously in the Tactical and Individual Aide Memoires; a reprint for the forces deploying to Operation HERRICK 12 [in Afghanistan] from April 2010 now does set them out in such terms. Similarly, although the Army Field Manual states the need to treat any captured persons lawfully with no inhumane or degrading treatment or punishment of anyone, and that “Under no circumstances may hoods or sandbags over the head be used on detainees”, it does not specify the other four techniques; this will be addressed during the next revision of the Manual, but in the meantime clear direction is provided by JDP 1-10, PJHQ SOI [Permanent Joint Headquarters Standard Operating Instruction] J3-9 and the aide-memoires …
23. The Review noted that the aide-memoires also did not specify the prohibition on “trophy” photographs of detained persons. That, too, has been corrected in the latest versions.
24. Notwithstanding the absence of specific reminders in the previous editions of aide-memoires, the Review has found that these prohibitions are clearly and fully covered in training. …
28. … The current MOD Policy on Tactical Questioning and Interrogation refers explicitly to the prohibited 5 techniques which are reiterated as techniques that are expressly and explicitly forbidden as an aid to interrogation.
[footnotes in original omitted]
The report also states:
30. In its discussions with deployed personnel, the Review has identified two areas in which some individuals were uncertain as to the policy to be followed: [One area concerns] their responsibilities when mentoring Afghan National Security Forces (ANSF) as to the conduct of the members of those forces with respect to detained persons …
a. SOI [Standard Operating Instruction] J3-9 states that “ANSF working alongside UK forces are, wherever possible, to take the lead in detention operations and the role of UK forces should be to ensure that there is a safe and secure environment in which such operations can take place and to assist if necessary”. It further states that “if it is believed that an ANSF detainee will be mistreated or that the ANSF are unable to safely and correctly facilitate the detention process, the detainee is to be processed by the [Temporary Holding Facility/Detainee Transfer Facility] staff in accordance with normal procedures. UK personnel should take control of the detainee and then carry out action in accordance with [the SOI]”. Nevertheless, UK personnel recognise that they are partnering Afghans within the latter’s sovereign state, and that they need to maintain a good working relationship with those partners. Although PJHQ [Permanent Joint Headquarters] explained to the Review that their guidance is that where an issue cannot be resolved face-to-face for whatever reason then soldiers should raise their concerns up the UK chain of command, the Review found that there is uncertainty in some soldiers’ minds over whether to impose perceived western standards; whether to intervene at the time where they perceive Afghans to be treating a detainee inappropriately; or whether to report any such incident to be addressed higher in the chain of command. It is recommended that PJHQ should examine whether there is a need to provide clearer guidance for such situations.
[emphasis in original]