Saudis freed Britons in a secret swap of prisoners

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Legality of Iraq occupation 'flawed'By Marie Woolf, Chief Political Correspondent
05 July 2004

The senior Foreign Office lawyer who resigned after ministers ignored her advice that the war in Iraq was illegal has issued a damning legal critique of the occupation, claiming that the alleged abuse of prisoners "could amount to war crimes".

In her first newspaper interview since her resignation, Elizabeth Wilmshurst, the former deputy legal adviser to the Foreign Office, said that the basis for going to war should always be based on "facts" rather than an "assertion" about an "imminent threat". Ms Wilmshurst said "it could be alleged that the use of force in Iraq was aggression" while "the kinds of abusive treatment of Iraqi prisoners that have been alleged could amount to war crimes".

Her comments came as Sir Jeremy Greenstock, Britain's former envoy to Iraq, made the clearest admission yet that intelligence that Saddam Hussein had stockpiles of chemical and biological weapons was wrong. He said: "We were wrong on the stockpiles, we were right about the intention."

Ms Wilmshurst expressed concern about the size of the US civilian presence in Iraq. She also said she was worried about the lack of legal protection for Iraqis if they were harmed by allied troops or civilian contractors, including private security guards. She said it was "worrying" that the occupying powers had given immunity to US and British civilians which was "very, very wide" and "not what you would expect". They would be protected from prosecution even if they seriously injured Iraqi women and children.

She said the Bush administration's "war on terror" was legal "nonsense" - conferring no more powers on the US to detain prisoners than "the war against obesity" - and President Bush's policy of pre-emptive self-defence was illegal under international law.

Ms Wilmshurst, who is now head of the international law programme at the think-tank Chatham House, also raised questions about the powers of detention the Americans have in Iraq and Guantanamo Bay. She said it violated the Geneva Conventions to deny inmates in Guantanamo Bay a formal assessment of their status.

Although she said she would not discuss the advice she gave to ministers, she is understood to have told them that British participation in the invasion of Iraq would flout international law. She said there were deep concerns among international lawyers about the implications of the war on terror, which may be used as an excuse to hold prisoners indefinitely. "This rather extraordinary war against terror, which is a phrase that all lawyers hate ... is not really a 'war', a conflict against terror, any more than the war against obesity means that you can detain people," she said.

In a further side-swipe at American foreign policy she said President Bush's policy of pre-emptive self-defence, which would allow the US to invade any country it thought was a threat, was illegal under international law. "What people are worried about is just assertions that there is an imminent threat," she said.

The Butler inquiry report into intelligence on Iraq is to be published on 14 July, and reports suggest it will be critical of the intelligence services.

Sir Jeremy said on BBC's Breakfast with Frost: "There is no doubt that the stockpiles that we feared might be there are not there. We didn't know they were there, but we thought that there was a considerable danger that they were there, because the intelligence, not just in the American and British systems but in the French, German and Russian systems, also was quite compelling at the time." He said Washington was influenced by the Iraqi exile Ahmed Chalabi and underestimated the potential problems of post-war security.

Saudis freed Britons in a secret swap of prisoners
by Andrew Buncombe and Kim Sengupta
05 July 2004


Six Britons convicted on terrorism charges in Saudi Arabia were released last year as part of a secret three-way deal in which the US set free a number of Saudi prisoners being held at Guantanamo Bay. The deal was brokered to obtain Saudi support for the invasion of Iraq.

Diplomatic and intelligence sources have confirmed to The Independent that the Britons, convicted of a fatal car-bombing, were released last August after the US returned five Saudi prisoners, at least two of whom were believed to have trained in al-Qa'ida camps.

At the time, the release of the Saudis was opposed by the Pentagon and the CIA. But the joint releases were subsequently presented as diplomatic triumphs by both the British and Saudi governments.

A senior British source said yesterday: "Of course there were government-to-government talks. We were all anxious to solve the problem. But one must bear in mind that it was the Americans who held the aces with the Saudi detainees, the British government did not have that kind of leverage. So the term 'negotiations' should really be applied to the American-Saudi dialogue. But it was a particularly difficult time with Iraq, and a solution was in everyone's interest."

The Britons - Sandy Mitchell, James Cottle, Les Walker, James Lee, Glenn Ballard and Peter Brandon, and a Canadian, William Sampson - said they were subjected to beating while incarcerated for two years. They had been convicted of a car-bombing in which another Briton, Christopher Rodway, was killed. Many have subsequently said their confessions were forced and are suing the Saudi authorities.

Mr Mitchell, 48, originally from Kirkintilloch, near Glasgow, said last night: "We were definitely pawns in a game. I was sentenced to crucifixion and beheading for a crime the Saudis knew I did not commit.

"They had to tell us during the torture sessions what to confess to. It was a set-up from the very beginning."

The initiative to release the five Saudis from Guantanamo Bay began in July 2002 when Saudi officials visited the camp. According to a report in The New York Times, the proposal was discussed at the highest levels of the US and British governments, both eager to keep the support of the Saudi authorities for the invasion of Iraq. One US official said: "This was something that the Saudis desperately wanted, as a way to show their people that they could get something from the Americans and that it was not just a one-way street."

The following month, a recommendation by the US ambassador to Saudi Arabia, Robert Johnson, outlined a "swap" as a way to keep the Saudis' support. While the Saudi authorities were technically opposed to the invasion of Iraq they allowed the US to use air bases in the kingdom.

The deal that was negotiated deliberately ensured there was a time gap between the release of the Saudis and the subsequent release of the Westerners in order to allow officials to deny there had been a "swap". "We did not want to make it a clear quid pro quo," said a US official. "We did obviously say that we expected [the release of the Westerners] to be resolved."

In March 2003, just days before the American-led coalition invaded Iraq, King Fahd granted clemency to the Western prisoners, though they were not released immediately. On 14 May, the five Saudis were flown to Riyadh. There are contradictory reports as to whether these men have been released by the Saudi authorities or charged with any crime.

Finally, in early August, the Westerners were flown home.

Informed of the secret deal Mr Rodway's widow, Jane, said last night she was shocked by the news and had not been informed of any such swap. "I didn't even know they were coming home until they were on the plane," she said.

A Foreign Office spokeswoman refused to confirm or deny that a deal was done.


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