Major O’Kane drafted a legal memorandum dated 28 August 2003, (Doc 84) after he visited Abu Ghraib. O’Kane addressed his memo to the Officer in Charge at Abu Ghraib and included his details as the point of contact. O’Kane’s UK superior signed the document.
Major O’Kane’s memorandum concluded that the proposed Abu Ghraib interrogation policy ‘substantially complies with the Geneva Convention’.
In a subsequent interview, Major O’Kane said that he found that there were inadequate control measures to prevent abuse. He stated that, upon reviewing the US Interrogation Manual, ‘there wasn’t sufficient detail or safeguards in place in the manual to stop, for example, a certain technique going too far, I wasn’t prepared to go, “categorically it complies”, but rather “substantially complies”.’ (Doc 40, 12)
Major O’Kane was aware the US Interrogation Manual did not include limits on the use of all interrogation techniques. His legal advice stated: ‘An interrogation TTP, like any physical or psychological duress, will eventually amount to inhume [sic] treatment’ (Doc 84). Major O’Kane concluded that the US Interrogation Manual was open to abuse because it did not provide adequate detail or time limits.
It is particularly significant that Major O’Kane found deficiencies in the interrogation techniques proposed to be used at Abu Ghraib. Major O’Kane’s attitude towards other forms of controversial interrogation techniques is worth noting. For example, in relation to an ICRC report outlining allegations of mistreatment at Abu Ghraib (such as threats, insults and verbal violence, sleep deprivation, being made to walk in the corridors handcuffed and naked with female underwear on the detainees’ heads, and handcuffing for prolonged periods), Major O’Kane said: ‘they [the ICRC] call it ill treatment, but we call it successful interrogation techniques’. His conclusion that there were question marks over the legality of the proposed techniques highlights the serious problems with the proposed techniques.
The 205th MI Brigade asked Major O’Kane to advise on several interrogation techniques: sleep management, dietary manipulation and, possibly, sensory deprivation. The US used some of these techniques, including sleep management, in Afghanistan and at Guantanamo Bay.
The documents released to PIAC do not make clear how the 205th MI Brigade intended to use these proposed techniques. However, subsequent reports into the 205th MI Brigade abuses at Abu Ghraib condemned the use of similar techniques by the military police. One method of sleep deprivation involved guards taking detainees out of their cells, stripping them naked and giving them cold showers. Other methods of controlling detainees’ sleep included banging on cell doors, yelling and playing loud music, and leaving lights on in cells (Doc 55, 21).
Investigations into the abuses at Abu Ghraib also confirm that detainees were subject to sensory deprivation. Detainees were subject to loud music and yelling, (See George Fay, “Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade”, 70 available) placed in excessively cold or hot cells with limited ventilation, and were kept in total darkness.
International law prohibits torture, cruel and inhuman treatment. This prohibition is absolute. It applies during peace and during periods of armed conflict. Similarly, the Geneva Conventions specifically prohibit torture, cruel treatment, inhuman treatment and humiliating and degrading treatment.
It is difficult to assess the legality of the interrogation techniques proposed for Abu Ghraib without knowing the full details of those techniques. However, in the 1970s, interrogation techniques similar to those proposed by the 205th MI at Abu Ghraib were found to be in breach of international law. It is possible the techniques Major O’Kane reviewed for the 205th MI at Abu Ghraib in certain circumstances would breach international law as they may amount to cruel and inhuman treatment and possibly, torture.
Precedents established in the European Court of Human Rights support this assessment of the Abu Ghraib proposals.
The European Court of Human Rights found that five interrogation techniques used in Northern Ireland in the 1970s amounted to inhuman and degrading treatment, and breached the European Convention for the Protection of Human Rights and Fundamental Freedoms (Ireland v United Kingdom (1978) 2 EHRR 25). These five techniques, used on suspected IRA members, were: holding detainees in stress positions for hours; covering a detainee’s head with a bag; subjecting detainees to continuous noise; depriving detainees of sleep; and depriving detainees of food and drink. The Court concluded that these techniques amounted to inhumane treatment when applied in combination, with premeditation and for hours at a stretch.
An earlier decision by the European Commission of Human Rights concluded that the five techniques used in Northern Ireland constituted torture. Controversially, the European Court of Human Rights did not support this finding, despite the Court’s conclusion that the five techniques caused intense physical and mental suffering and led to acute psychiatric disturbances. However, the law in this area has developed during the past 30 years and PIAC believes it likely the European Court of Human Rights would now consider the five techniques used in Northern Ireland and elsewhere to be torture.
The United Nations has considered similar techniques used by Governments against detainees and has concluded such techniques amount to torture. This includes sleep deprivation (Israel), sensorial deprivation (Peru); sleep, food and water deprivation, and placing naked detainees in a freezing, air-conditioned room for extended periods (Mexico).
Although Major O’Kane questioned the legality of the techniques proposed for Abu Ghraib, he did not appear to consider that those techniques amounted to inhuman treatment. Major O’Kane was questioned by Mike Pezzullo, the head of the Iraq Detainee Fact-Finding Team (IDFFT), which was tasked by the Australian Department of Defence to gather information about detainee matters involving Australian personnel in Iraq. When asked about inhumane treatment, O’Kane stated: ‘I rely on certain cases that I viewed both in the European courts of Human Rights… inhumane treatment from the ICTY [International Criminal Tribunal for the former Yugoslavia] judgements… interpretation of those courts and, you know, treatment really does cover things like starvation of people, concentration camp type incidents, not warm clothing through winter, summary execution, rape, you know horrible - it’s called assaults, torture - those sorts of issues’ (Doc 39, 68).
Given the existence of international legal opinion on interrogation techniques such as those proposed for Abu Ghraib, it is fair to say that Major O’Kane’s advice should have been more circumspect and he should have stated definitively that the proposed techniques would be in breach of international law.
Major O’Kane based his legal advice on the premise that ‘security internees’ had forfeited their rights under the Geneva Convention and were only entitled to ‘be treated with humanity’ under Article 5 of Geneva Convention IV (Protection of Civilian Persons in Time of War).
The US and Australia held different views about the exemptions contained in Article 5. Major O’Kane based his advice on the US interpretation of the application of Article 5; this was inconsistent with the Australian Government’s own position.
Article 5 of Geneva Convention IV allows for individuals to be denied rights under the Convention in certain circumstances, it states:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be. [emphasis added].
The different views that the US and Australia held in regard to exemptions under Article 5 can be summarised as follows:
Australian military lawyer, Colonel Paul Muggleton, has been particularly critical of the way the US applied Article 5 to detainees in Iraq. He stated, ‘The way that CJTF-7 used Article V, I questioned for legality and wisdom. They were denying access systematically and it was causing a lot of angst. Particularly when the detainee facilities were so marginal, and my work with the Central Criminal Court showed that there was very little evidence to support the detention of Iraqis, especially to detain them in tough conditions for 3-6 months. I wanted those responsible for the detention system aware of my concerns and take account of Geneva Convention Article V derivations (Matrix, pp.66-7).
Another unnamed Australian Colonel, in an interview with Mr Pezzullo on 9 June 2004, was asked about whether he discussed Article 5 with Major O’Kane. He replied:
Yes, I recall that we had discussion that as Australians and our role as coalition officers that we make sure that our values and our ROEs [rules of engagement] were reflected in everything we did, not the coalition position. I discussed the Geneva Convention and status of Iraqi people on detention. In particular, whether or not they were POWs or security detainees, then what were their rights under the Geneva Convention. Whatever advice we provided as Australian coalition officers had to be consistent with Australia’s interpretation of operational law and the Geneva Conventions (Doc 26, p.2).
Another Australian military lawyer, Colonel Mike Kelly, was also concerned about the US application of Article 5. In an interview on 8 June 2004, he stated:
George [O’Kane] did not consult with me or speak to me about Article V. I did pass on advice to CFTF-7 on this issue as they were not aware of the meaning of this provision. I advised that it obviously applies to some detainees … and the High Value Detainees can fall into that category. However I disagreed with the CJTF-7 interpretation of Article V. They were stretching it to breaking point. … They started abusing Article V.
My main point of contention was that Article V dealt with contact and communications aspects only. It does not allow for any derogation of rights to humane treatment and other rights under the Geneva Convention. I passed that strong advice on to CJTF-7.
Furthermore, the first paragraph of Article V relates only to the domestic territory of the party to the conflict. It does not relate to occupied territory. Paragraph two applies to occupied territory. ?They were not interested in these details.? (Doc 6, pp. 1-2)
Major O’Kane’s view of Article 5 of Geneva Convention IV did not align with the Australian Government view. It is not clear whether Major O’Kane was directed to draft his advice in accordance with the US view of Article 5 or whether he assumed he should draft the advice on that basis. It is also not clear whether he discussed the matter with his superior, the UK Lieutenant Colonel, who signed off on the advice.
Major O’Kane helped draft other important documents on behalf of the US, and these documents also relied on the US view of Article 5. In a letter Major O’Kane drafted on 24 December 2003 to the International Committee of the Red Cross on behalf of US Brigadier General Karpinski, the exemption in Article 5 was used to justify the denial of Geneva Convention rights to detainees. Major O’Kane said his interpretation was the result of discussions in his office, although he later suggested the interpretation originally came from a US fragmentary order from August 2003.
On at least two occasions, Major O’Kane drafted important documents relating to detainee treatment at Abu Ghraib. Major O’Kane’s advice on these occasions relied on an interpretation of the Geneva Conventions that was inconsistent with the Australian Government’s view of the law.
In an interview with Mr Pezzullo, Major O’Kane said both the US Interrogation Manual and the Australian Interrogation Manual failed to put time limits on the use of interrogation techniques.
Following the IDFFT Report, the Department of Defence convened a special meeting to identify problems with the handling of detainees. Vice Admiral Russel Shalders, Air Marshal Houston, and General Cosgrove attended this meeting, together with the Defence Secretary Ric Smith, Shane Carmody and Alan Henderson. The result of this meeting was a document outlining lessons learned and proposed actions (Doc 193). The full details of these recommendations were not revealed to PIAC. The Government has not publicly revealed whether it was recommended that the Australian Interrogation Manual be revised or updated following the abuses at Abu Ghraib.