RAF surveillance flights over Gaza make the UK complicit in torture

About the authors: Alessandra Cao and Réann O’Neill are recent graduates in International & European Law and Anglophone Studies respectively, and are currently pursuing an LLM in International Human Rights Law at the Irish Centre for Human Rights (ICHR) at the University of Galway. As part of the ICHR’s International Human Rights Law Clinic, they are involved in policy and advocacy work in the area of strategic human rights litigation for the Global Legal Action Network.

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Since December 2023, the United Kingdom’s Royal Air Force (RAF) has conducted at least 518 aerial surveillance flights over Gaza according to AOAV’s study of publicly available flight data, purportedly to search for and locate British hostages held by Hamas and to pass relevant information on to Israeli authorities. These surveillance flights usually take off from RAF Akrotiri, the UK’s airbase in Cyprus and are in the air for 6 hours. As Gaza is around 30 minutes flight time away from the base, the RAF gathered around 1000 hours of surveillance footage over Gaza over the past months. These flights rely on the exchange of information with Israel’s military, which stands accused of systematically using torture in intelligence gathering. In operating these surveillance flights, the UK makes itself complicit in such human rights violations.

RAF flights over Gaza are based on torture information and may lead to further torture

In September 2024, UK Prime Minister Keir Starmer suspended 30 of its 350 arms export licenses to Israel due to concerns about “credible claims of mistreatment of detainees”. This decision was taken in response to a case brought before the High Court by Al-Haq together with the Global Legal Action Network, challenging UK arms exports licenses on the basis that Israeli security forces systematically interrogate Palestinians under extreme torture and use such forced false statements to justify targeting decisions in violation of international humanitarian law. While the Starmer government has admitted that “there is a clear risk of Israel using British weapons to commit serious violations of international humanitarian law”, it nevertheless closes its eyes, and instead continues to rely on Israel’s assurances that it “operates in accordance with international law”. While some arms export licenses remain suspended (only 16 out of the initial 30 as of December 2024), over 300 are still active. Moreover, the UK continues to supply components for the lethal F-35 warplanes and to run surveillance flights over Gaza to this day. Journalists for Declassified contend that intelligence received from Israel ahead of surveillance flights “may have been obtained under torture”. Various retired UK military sources, including Richard Kemp, a retired British army colonel, told Declassified that “it was plausible that Israel shared intelligence on possible hostage locations with Britain” before the RAF surveillance flights took off. Freedom from Torture expressed similar concerns, saying that the UK was taking receipt of or making use of intelligence provided by Israel where there was a real risk that it has been obtained by torture or other ill-treatment.

Another connection that the UK government continues to ignore is the real risk that UK-supplied surveillance footage could be used by Israeli forces to conduct future military operations in Gaza which violate international law. Furthermore, intelligence received from the RAF will likely be used as a basis to forcibly extract additional information from Palestinians. Among other things, false confessions obtained through torture have been used by Israeli forces to “justify targeting of medical personnel”. In short, this means that for their surveillance flights, RAF officials are receiving information potentially obtained through torture and are handing intelligence to Israel which might be used to commit torture. Considering the pervasiveness of torture within the Israeli intelligence system, this is more than probable – and assurances from the Israeli government cannot be considered sufficient clearance to carry on cooperation.

The prohibition of torture under International Law and the Exclusionary Rule

To understand why the UK could be complicit in torture, it is important to look at the domestic and international framework that applies to using, receiving or sending information tainted by torture. Starting with the international framework, torture is absolutely prohibited under international law through various international treaties, including the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the UN Convention Against Torture (CAT). It is also recognized as a principle of customary international law and constitutes a peremptory (jus cogens) norm from which no derogation is permitted.

The so-called ‘exclusionary rule’, codified in Article 15 CAT, prohibits the use of evidence obtained through torture, stating that “each state shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings”. While Article 15 does not explicitly prohibit the use of information obtained by torture as basis for executive decisions, scholars have argued that the formulation “any proceedings” includes executive decision-making processes. Human Rights Watch states that “a distinction between ‘legal’ and ‘operational’ use of torture information is difficult to sustain” because information used to, for instance, launch a criminal investigation leading to arrests and indictments, “has been introduced into the judicial process”.

The duty not to encourage torture and to ensure respect for its prohibition

However, the prohibition of torture in international human rights law has further implications. Firstly, Article 3 ECHR (prohibition of torture) contains a negative duty not to encourage foreign states to commit acts of torture. As Human Rights Watch confirms in a 2010 report on “the regular or repeated receipt and use of foreign torture information as basis for any kind of operational decisions by the executive branch implicitly validates the use of unlawful methods to acquire information and may create a demand for torture intelligence”, thus encouraging foreign acts of torture.

Secondly, jus cogens norms (due to their very nature) contain an obligation for states to ‘ensure respect’ for the prohibition, to distance themselves from and refuse to give recognition to the legitimacy of breaches of such norms, and to bring such violations to an end. According to Human Rights Watch this means that states should repudiate publicly the use of information obtained through torture and take reasonable steps to ensure they never knowingly send or receive such information. Third, Articles 2(1) and 16(1) of CAT and Article 2 ICCPR contain state obligations to take measures to prevent public authorities of other states and other persons from committing or being complicit in acts of torture. According to the former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, the prohibition of torture requires states to abstain from acting within their territory in a manner that exposes individuals outside their territory to a real risk of torture. This would apply to passing on information that will likely be used to torture people.

State Responsibility for complicity in torture

Lastly, the use of foreign torture information may also give rise to state responsibility for complicity in the breach of the prohibition of torture, since reliance on information obtained through torture in another country inevitably implies the ‘recognition of lawfulness’ of such practices, triggering state responsibility for internationally wrongful acts.

Former Special Rapporteur on torture, Juan E. Méndez, suggests that state responsibility is triggered when a state collects, shares or receives information where it knew or ought to have known that there was a real risk it could lead to or was acquired through torture. Moreover, receiving or sharing information from a country that is known, or ought to be known, to use torture in a widespread or systematic way, even without actual evidence that torture is involved in this specific case, is automatically tantamount to complicity in torture, as it tacitly acknowledges such acts and fails to prevent or discourage them. Importantly, former Special Rapporteur on torture Juan E. Méndez, states that assurances by providers of information that torture was not involved in producing it, are not sufficient to permit cooperation where a real risk is identified, as such promises by governments that practice torture are not reliable and do not provide effective safeguards against a real risk of torture.

UK Legislation and Jurisprudence on torture

The UK is party to the ICCPR, CAT and ECHR and the prohibition of torture applies to it also under customary international law and because of its jus cogens character. Furthermore, section 134 UK Criminal Justice Act 1988 authorizes universal jurisdiction over torture. In A & Others v. Secretary of State for the Home Department (2005), the UK House of Lords held that the use of evidence obtained through torture in any court proceedings is unlawful. In a 2008 report, the UK Parliament’s Joint Human Rights Committee went even further by recognizing that “[s]ystematic, regular receipt of information obtained under torture is (…) capable of amounting to ‘aid or assistance’ in maintaining the situation created by other states’ serious breaches of the peremptory norm prohibiting torture and is tantamount to complicity in torture”. It held that a “general practice of receiving intelligence which has or may have been obtained under torture” is likely to give rise to state responsibility for complicity.

The Fulford Principles

The ‘Fulford’ Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees, published by the UK government in June 2019, and in force since January 2020, provide further guidance. While not legally binding, these principles constitute authoritative guidance and apply to the MI5, the Secret Intelligence Service (SIS), the Ministry of Defence, the National Crime Agency (NCA) and other government intelligence units. Principle 6 relates to the passing and receipt of intelligence to or from a foreign authority. It provides that when there is a real risk that or when personnel know or believe that torture will result from the passing or receipt of intelligence, personnel should not proceed, ministers need to be informed, and senior personnel be consulted as to whether the risk can be effectively mitigated through reliable assurances. Compliance with these principles is overseen by the Investigatory Powers Commissioner (IPC), however, it offers very little possibility for litigation as it is unlikely that the IPC would refer criminal conduct to the relevant authorities.

International criticism for failure to investigate allegations of complicity in torture

The UK has a track record of involvement in both inhuman and degrading treatment, and torture of detainees, both at home and overseas. For instance, in a 2018 report on detainee mistreatment and rendition between 2001-2010, the UK Intelligence and Security Committee found 198 instances where “UK personnel received intelligence from liaison services which had been obtained from detainees who they knew had been mistreated”. In 2019, the UK was criticized by the UN CAT Committee and various civil society organizations including Amnesty International, Redress, Freedom from Torture and Liberty, for failing to (fully) investigate allegations of complicity in torture overseas during its ‘war on terror’ policy between 2001 and 2010. During this period, British intelligence services cooperated closely with countries known for widespread use of torture, notably Pakistan and Uzbekistan. Following the inaction of the UK government, in 2020, Reprieve, together with two UK Members of Parliament, brought a case against the Prime Minister for failure to fully investigate allegations of torture under Article 3 ECHR. Unfortunately, this case was dismissed in 2021, on the basis that the claimants are not victims of any violation of Article 3 ECHR and therefore have no standing. The decision of the UK Court of Appeals constitutes a blanket failure to hold the UK government accountable for failing to investigate allegations of complicity in torture. This shows that the UK has failed and continues to fail to prevent and address involvement in overseas torture; as such, the ongoing surveillance flights over Gaza, and the connected handling of torture-tainted intelligence are but the latest iteration of this failure to take appropriate measures.

Conclusion

To conclude, despite the UK government’s knowledge of torture being used systematically by Israeli forces to obtain intelligence, they continue to use said intelligence to conduct extensive aerial surveillance over Gaza and to share the resulting information with Israel. The absolute prohibition on torture under both international and UK law includes a duty not to encourage torture and to ensure respect of this jus cogens norm. In this sense, exchanging information with Israel, knowing that there is a real risk that such information is tainted by torture, is automatically tantamount to complicity in torture and therefore triggers state responsibility.

In light of its historic failure to account for its involvement in overseas torture, now more than ever there has to be urgent action. The UK must stop intelligence cooperation with Israel in the context of its surveillance flights until such can be done in accordance with international law, and suspend all arms exports. The UK should also investigate any incidents of complicity in torture and hold those responsible to account.

Originally posted on Irish Centre for Human Rights