[JURIST] US State Department legal advisor John B. Bellinger III [official profile; JURIST news archive],told the Guardian newspaper Tuesday that British troops in Iraq and Afghanistan [JURIST news archives] are not detaining suspected insurgents in those countries due to concerns that the soldiers will be liable for their treatment of the detainees [Guardian report] under UK and European human rights law. Bellinger's comments stem from a 2005 appellate court ruling [text; JURIST report] that British soldiers in Iraqi are forbidden to subject Iraqi prisoners to cruel or degrading treatment while in their custody. The Court of Appeal in London determined that the Human Rights Act 1998 (HRA) [text], which enacted the European Convention on Human Rights (ECHR) [text, PDF] into UK law, applies to any UK military personnel with control over a detainee. The appellate court ruling arose in the course of the Baha Mousa [JURIST news archive] scandal, in which British soldiers were alleged to have caused the death of an Iraqi detainee.
Bellinger's comments come as controversy develops in the UK over the liability of the British government under UK and European human rights law for alleged later ill treatment of US terrorism detainees first taken into custody by British forces. Last week, the All Parliamentary Group on Extraordinary Rendition (APPG) [official website] released a legal opinion [text, PDF; JURIST report] examining UK governmental liability under the ECHR and the HRA. The APPG opinion found that a human rights violation under both the ECHR and the HRA would occur where "an individual in British detention in Iraq is handed over to US military personnel despite substantial grounds for considering that there is a real risk of that person being subjected to torture or inhuman and degrading treatment." The APPG was convened in December 2005 [JURIST report] to call for a formal inquiry into whether the British government violated international law by participating in the CIA extraordinary rendition [JURIST news archive] program.