1950s Kenya, for example, the Mau Mau rebellion against British colonial rule was met with tactics that included forced confessions, shoot to kill, mass executions, and large-scale internment (Anderson 2005). For much of the colonial administration, and a great deal of British public opinion, this was simply what was necessary to preserve the Empire and put down a brutal uprising. There was some opposition, not least from the Kenyans themselves but also from the British-appointed judiciary, missionaries, and a few MPs. By and large, the language of torture was rare, and very few references were made to international human rights agreements.32 Instead, the dominant image was that of the gulag or concentration camp (Anderson 2005). Common references were made to “extreme pressure,” “maltreatment,” “serious beatings,” and the “third degree.”33 When the International Committee of the Red Cross visited the Kenyan detention camps in 1957, it noted the use of corporal punishment and “drew attention to its severity.”34 Following specific allegations of the “beating up of prisoners” and the offering of financial rewards for the killing of Mau Mau, Captain G. S. L. Griffiths was convicted in 1954 of “disgraceful conduct of a cruel kind” after he threatened detainees with mutilation.35 Although some perpetrators were brought to trial for and convicted of crimes such as murder or assault, torture was not a crime or even a civil offense under either Kenyan or English law at the time.
At the same time as the Mau Mau uprising, the British colonial authorities were dealing with growing unrest in Cyprus. The counterinsurgency methods of the British were challenged by the Greek government in 1956. As the ECHR applied to Cyprus, the Greeks lodged allegations of atrocities with the European Commission of Human Rights (see Simpson 2001, 924–1052). In lodging their case, the Greeks argued that the “case of the Cypriots differs from that of other peoples of the world still fighting for their freedom in that the Cypriots are Europeans nourished on Western civilization” (Simpson 2001, 929). The applications alleged “many cases of torture, degrading punishment and inhuman treatment,” as well as collective punishments; detention without trial; deportation; and violations of the rights of privacy, freedom of expression, and assembly.36 The initial reaction of the British government was shock and surprise that the ECHR could actually apply to its actions in Cyprus (Simpson 2001, 13). The British government also objected to the protest about whipping, with one senior diplomat arguing that it was commonly used in public schools and “is a mild and humane treatment…. If anyone can think of a more humane and effective treatment … H.M.G [Her Majesty’s Government] would be glad to hear of it.”37 The European Commission of Human Rights never issued any public findings on the case, however. The case was quietly dropped when, in early 1959, the Zurich Agreement paved the way for the independence of Cyprus.
Internment and Northern Ireland
Trouble, when it came, came much closer to home. Following the outbreak of civil unrest in the late 1960s and a bombing campaign by the Irish Republican Army (IRA), internment without trial was introduced in Northern Ireland on 9 August 1971. More than 340 arrests of Republicans were made on the first day alone. By the end of the week, allegations of brutality had made their way into the British press (Sunday Times 1971). In response to the allegations, the British Conservative government, led by Edward Heath, set up a Committee of Enquiry in late August 1971. The committee was chaired by Sir Edmund Compton, a former civil servant and a man who, according to former Labour Prime Minister Harold Wilson, was “one of the shrewdest, cleverest, and nicest, men in Whitehall” (Dalyell 1994). The committee’s mandate was to “investigate allegations by those arrested … of physical brutality” (Compton 1971, 1). However, almost all the internees refused to cooperate, fearing reprisals from the British security forces. The British army did not contest the use of four interrogation techniques—wall-standing, hooding, noise, and a bread-and-water diet—but argued they were an essential part of the security operations. There was an initial denial that sleep deprivation was used, but this denial was later dropped. The Compton Committee reported in November 1971 and made the general finding that what had become known as the “five techniques” were in use, but the committee made few specific statements on individual cases (Compton 1971). Most famously, the report concluded that the use of the five interrogation techniques was justified given the circumstances in Northern Ireland at the time.
Under continued pressure, the Heath government set up another committee to look at the future of interrogation methods. The Parker Report was led by Lord Parker of Waddington, formerly the most senior judge in England and Wales. It also included Lord Gardiner, who as Lord Chancellor had been the head of the English judiciary. Earlier in his career, Parker had been a supporter of corporal punishment, whereas Gardiner was one of the founders of Justice, the British branch of the International Commission of Jurists. The brief of the Parker Report was more specific than the Compton Report, namely to “consider whether, and if so, in what respect, the procedures currently authorized for the interrogation of persons suspected of terrorism … require amendment” (Compton 1971, iii). Looking at the medical risks posed by the five techniques, Lord Parker concluded that if the interrogations were conducted with care, the effects of the use of the five techniques were acceptable, as even under normal domestic circumstances it was reasonable for detainees to be subjected to some discomfort (Parker 1972, 40). He also argued that the techniques, if used correctly, could elicit useful information (1972, 5). As such, the report concluded that given the civil unrest in Northern Ireland, it was wrong to rule out use of the techniques on moral grounds (1972, 7). However, Lord Gardiner refused to let his name appear on the report and issued his own minority version. In his report, Gardiner was far more concerned about the physical and mental impacts of the use of the five techniques, quoting the medical evidence before the committee that it was impossible to set firm objective limits on the use of the techniques, as people had individual thresholds as to what they could endure (Gardiner 1972). He was also worried about the effect the use of the five techniques would have on Britain’s international reputation, as they “marked a departure from world standards we have helped to create … (and) gravely damage our own hard won reputation” (1972, 21).
The Heath government was somewhat bemused by the uproar. Both the prime minister and his home secretary, Reginald Maudling, argued in Cabinet committee meetings that it “had to be remembered that the lives of British soldiers and of innocent civilians depended on intelligence. We were dealing with an enemy who had no scruples and we should not be unduly squeamish over methods of interrogation in these circumstances.”38 Heath expressed exasperation that the accusations against British troops amounted to the claim that “anyone not given three-star hotel facilities suffered hardship and ill-treatment.”39 There was also a feeling that similar techniques had been used elsewhere by the British army—in Palestine, Malaya, Kenya, Cyprus, Brunei, and Aden—without the same level of fuss. Indeed, a 1966 publicly available report by Roderic Bowen QC, a former deputy speaker of the House of Commons and Liberal MP, had implicitly cleared many of the same techniques for use against the counterinsurgency in Aden (1966). Bowen had pointed out that soldiers were bound by the Geneva Conventions. At the same time, however, he made it clear that “permissible techniques” could be used to overcome resistance to interrogation.
The key distinction being made by the Heath government, as well as by the Compton and Parker reports was between “brutality” on the one hand and “ill-treatment” on the other. There is hardly any mention of torture. Even Gardiner in his minority report argues that words such as torture are vague and open to doubt, and therefore he does not use them (1972, 15). For Parker and Compton, the distinction between brutality and ill-treatment, which has no legal meaning, rests on the intention of the perpetrator. Brutality is a worse form of ill-treatment. Compton defined brutality as “an inhuman or savage form of cruelty, and that cruelty implies a disposition to inflict suffering, coupled with indifference to, or pleasure in, the victim’s pain” (1971, 15). Compton’s report found that British soldiers had been responsible for forms of ill-treatment but not brutality. What is noticeable here is the emphasis on morals rather than on legality, and for Compton the use of the five techniques was morally justifiable. The Parker Report was not explicitly mandated to look at the legality of the techniques, but given that
