House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Seventh Report

PHASE II: AFTER THE FALL OF THE TALIBAN, 14 NOVEMBER 2001

101. Since the overthrow of the Taliban, vital further progress in tackling the terrorist threat has been made. The coalition military operation has ended much of the al Qaeda activity in Afghanistan, and other military and intelligence operations have reportedly disrupted the operation of the network beyond Afghanistan and northern Pakistan. Progress has also been made by the UN Counter-Terrorism Committee, and most member states continue to co-operate to an impressive degree with its work.

102. However, al Qaeda remains a threat. Very few of the organisation's leaders have been "brought to justice," and intelligence reports suggest that al Qaeda continues to exist in many countries around the world.[101] Military operations continue in Afghanistan, much of the country outside Kabul remains lawless, and the position of the Interim Administration is far from secure, though we were encouraged by the attitude and the commitment of the Afghan Foreign Minister when he addressed members of the Committee and others in April.

103. We are concerned that the international coalition appears less cohesive than it was in the first stages of the war. Divisions have emerged as a consequence of two specific developments. Firstly, there is some disagreement over what should constitute the next phase of the war. Secondly, the escalating crisis in the Middle East has highlighted the differences between the United States and Arab countries over how to resolve the Israeli-Palestinian conflict. These developments have the potential severely to damage international co-operation against terrorism.

104. Britain remains closer than any other country to the US Administration in the conduct of the war. However, differences have also emerged between the British and US governments over aspects of Middle East policy, Iran, North Korea, the legal arguments pertaining to potential military action against Iraq, and the overall approach to international law. Most of Britain's European partners share the Government's concerns, and many have proved more vocal critics of the US since the beginning of 2002.

105. In this section of the Report, we consider how the pursuit of phase II of the war against terrorism has affected Afghanistan, the international coalition and British-US relations; and how the war has affected and been affected by the situation in the Middle East. Finally, we consider the question of how to prevent weapons of mass destruction from being used by terrorists or by states which support them, and whether the war should be widened.

Post-Taliban Afghanistan

106. Since the downfall of the Taliban, important steps have been taken towards the stabilisation of Afghanistan. A timetable has been established, under UN supervision, according to which a council of Afghan leaders—a Loya Jirga—is meeting in June 2002 to draw up a constitution for Afghanistan.[102] This should lead to the establishment of a representative government within two years. An interim authority has been established in Kabul, headed by Hamid Karzai, and a United Nations mission to assist in the stabilization and reconstruction process has been created under the supervision of Special Representative Lakhdar Brahimi.[103] At an international donors' conference for Afghanistan, held in Tokyo, US$4.5 billion was pledged towards Afghanistan's reconstruction, of which US$1.8 billion was to arrive in the first year.[104] Britain pledged £200m over five years.[105] Even these sums are felt by some commentators to fall well short of Afghanistan's needs.

107. However, Afghanistan still has very far to go towards stabilization and sustained economic development. Only US$90 million of the amount pledged at the Tokyo conference has actually arrived, and on 6 May the Interim Administration's minister for reconstruction warned that if foreign governments failed to deliver on their commitments, there could be an upsurge of violence.[106] When a number of us visited the UN in March 2002, we were warned that there is an urgent need to establish security throughout Afghanistan to enable the post-conflict economic and political reconstruction process to begin. Britain is helping to train Afghan security forces, but this takes time. It is necessary to disarm, demobilise and reintegrate existing militia. We were warned during our visit to the UN that the stage of peacekeeping may not even be reached if immediate security questions are not addressed. Reintegration measures (for example, job creation for militias) may have to take place before demobilisation and disarmament, to soak up the armed men who have no options other than banditry. Payment of civil servants' salaries is also crucial for the credibility of the Interim Administration.

BRITAIN'S CONTRIBUTION TO POST-TALIBAN STABILIZATION AND RECONSTRUCTION

108. After preliminary meetings in Geneva, the UN, hosted by the German government, held talks at Bonn with all major Afghan parties. The talks, which were chaired by Ambassador Lakhdar Brahimi, resulted in agreement over a post-Taliban interim administration for Afghanistan.[107]

109. The Government established a British observer delegation to the Bonn negotiations for the future of Afghanistan, which were being organized by the UN during the conflict. The observer delegation was headed by a British diplomat, Mr Robert Cooper. The Prime Minister also sent Mr Paul Bergne as an envoy, first, as Mr Bergne told us, "to see if I could be of any assistance in the wings of the [Bonn] conference."[108]

110. The British delegation had no role in conducting the negotiations, which took place behind closed doors to which observer missions had no access.[109] The Foreign Secretary told us that the British delegation was, however, present "at every point and behind the scenes," working "as we should do at supporting the United Nations' lead role actively but not getting in its way."[110] He gave us an example of the active role that Britain had played: he himself had held a "series of conversations with Dr Abdullah Abdullah, with the Russian Foreign Minister and the Iranian Foreign Minister, to try to ensure that the Northern Alliance were positioned correctly in these talks so that they received recognition for their role [in fighting the Taliban] but not to the point where other members of other delegations could not be accommodated within the constitution."[111]

111. In a press statement on 2 December, Ahmad Fawzi, spokesman for Ambassador Brahimi at the Bonn talks, stated that according to the UN proposals for political arrangements in Afghanistan "the Interim Authority will be composed of an Interim Administration, and a special Independent Commission for the Convening of the Emergency Loya Jirga. It will also consist of a Supreme Court of Afghanistan. The Interim Authority will run the country for a period of six months."

112. The Bonn Agreement to establish this was signed by the Afghan parties on 4 December 2001, and the Interim Authority was established in Kabul on 22 December 2001. The thirty-member cabinet which was finally agreed at Bonn comprised eleven Pashtuns, eight Tajiks, five from the Hazara population, three Uzbeks, and the rest from other minorities.[112] Two women serve in the interim cabinet. The Interim Authority is headed by Hamid Karzai, and Dr Abdullah Abdullah is responsible for the Authority's foreign affairs. We have met both since they were appointed. We have also held discussions with Professor Ismael Qasimyar, who is responsible for the preparations for the Loya Jirga.

THE INTERNATIONAL SECURITY ASSISTANCE FORCE

113. The Bonn Agreement provided for an International Security Assistance Force, which was to "assist the Interim Afghan Administration in the maintenance of security for Kabul and its surrounding areas." On 19 December 2001, the Foreign Secretary wrote to the Secretary General of the United Nations offering British forces to provide initial leadership to this Assistance Force, which became known as ISAF.

114. In December, Mr Paul Bergne stressed to us that British forces should be succeeded as rapidly as possible by multinational force, "given the history of our relations with Afghanistan."[113] However, Britain has maintained its leadership of ISAF since the force was established, and will do so until Turkish forces take over the leadership responsibilities at an unspecified date in mid 2002.[114]

115. Despite Mr Bergne's warnings, the ISAF appears to have been welcomed by Afghans in Kabul. There have been repeated but unavailing calls from both the Interim Administration and from international agencies working in Afghanistan for its extension beyond the capital. Mary Robinson, UN High Commissioner for Human Rights, wrote on 12 March that "International Security Assistance¼ must be rapidly expanded and extended beyond Kabul. A new Afghan security force and a civilian police service are being created with support from the international community. Without the success of these initiatives to guarantee human security, there can be little prospect of ensuring respect for human rights."[115] The same sentiments were expressed to us by a number of the UN officials we met during our visit to New York in March.

116. We heard on our visit to Washington and New York in March 2002 that the United States is not in favour of extending the International Security Assistance Force beyond Kabul. The United States prefers to work through regional security chiefs in Afghanistan, via US Special Forces who are responsible for liaising with them. We are concerned that the effect of working through local "warlords" may be to weaken the authority of the Interim Administration in Kabul.

117. The United States Ambassador to Afghanistan said on 10 April 2002 that "nothing that the Interim Authority and international community are trying to do in Afghanistan will work without stability and security."[116] We agree with this assessment: we cannot afford to lose the tentative peace that has been established in parts of Afghanistan. We commend the Government's decision to persist with the leadership of ISAF, and to engage in negotiations leading towards eventual handover of responsibilities to the Turks. We recommend that the Government consider carefully, with the United States and other coalition partners, the options for maintaining and increasing security in Afghanistan, both during and for a significant period after the June 2002 Loya Jirga. This should include consideration of the extension of ISAF beyond Kabul and its immediate area.

United Nations: the work of the Counter-Terrorism Committee

WHAT HAS BEEN ACHIEVED BY THE CTC?

118. Since its establishment on 28 September 2001, the UN Counter-Terrorism Committee has made significant progress towards mapping the response of member states to the demands of Security Council resolution 1373. Co-operation with member states has been maintained to a surprisingly high degree.

119. According to the first CTC 90-day plan, the Security Council divided into three sub-committees, to review member states' reports. This process has now been largely completed.[117] The CTC has also established "at least initial contacts with all regional, subregional and international institutions concerned with counter-terrorism:"[118] Sir Jeremy Greenstock believes that regional organisations have potential to enhance the effectiveness of CTC activities. They may help to ensure that the UN's counter-terrorism proposals are handled with sensitivity to regional concerns and are not perceived to be "imposed" by the permanent members of the Security Council.

120. In June 2002, the CTC began to review the second set of member states' reports, which report their progress towards implementation of UN Security Council Resolution 1373. The CTC should shortly be able to begin co-ordinating assistance to enable weak member states to comply with UNSCR1373. Towards this end, the CTC will maintain a web site on its activities, including an online directory of assistance available to member states.[119] Non-compliant states will also be identified, and the CTC will start gradually to apply pressure on them.

121. Sir Jeremy Greenstock, the US legal adviser to the UN and the deputy chairman of the CTC have all told us that they are extremely pleased by member states' responses to the requirement that they report their proposed measures towards implementation of UN Security Council Resolution 1373.[120] As at 10 June 2002, 33 member states have still not reported. The reports by some member states have, however, been very brief or highly politicised, and therefore most unsatisfactory. There is clearly much more to be done by the Committee as it begins the follow-up process with member states. However, Sir Jeremy is encouraged in many respects by the CTC's progress. He told the Security Council that "virtually all" of the states that had not reported to the CTC had failed to do so because they need assistance, not because they are unwilling to comply with the UN requirements.[121]

HOW HAS THE CTC SUCCEEDED IN MAINTAINING MEMBER STATES' CO-OPERATION?

122. Some argued, in the wake of the 11 September attacks, that establishing a definition of terrorism would be essential to ensure international co-operation against terrorism. The Australian government took some steps in the UN General Assembly to propose a definition of terrorism which all member states could endorse; however, this has not been agreed. In our evidence session with Professor Paul Wilkinson, we heard that while the lack of international agreement on the definition of terrorism was an "obstacle to getting a general convention" in the United Nations, it "is not any longer ... a main obstacle to practical co-operation." Professor Wilkinson told us that, because it is understood more clearly than before that this form of violence "is a strategic threat to the well being of the international community... the practical co-operation does not get preceded... by days of debate about what terrorism actually is."[122]

123. One explanation for the success of the CTC may be the decision of its Chairman to focus on the technical aspects of implementing UNSCR 1373, and to avoid engagement in negotiations towards an internationally agreed definition of terrorism. Such negotiations are frequently used by member states to make political points. Because the CTC is seen as a "technical" committee in the UN, its work has not been held up by the debate over the definition of terrorism.

124. Another important reason for the success of the CTC is clearly the skill, energy and sensitivity with which Sir Jeremy Greenstock, Anna Clunes and other members of the UK Mission to the UN have planned and organised the CTC's activities. All of those with whom we discussed the CTC volunteered praise for Sir Jeremy's work since 11 September.

WHAT MUST BE DONE TO ENSURE THE CONTINUING EFFECTIVENESS OF THE CTC?

125. In the Security Council debate on terrorism on 15 April, the Mexican Permanent Representative stated that, for the UN to be credible, the Security Council must strengthen capabilities to enforce its own resolutions. From credibility and transparency in this respect, he argued, would flow the confidence of the international community in the UN's value in the fight against terrorism.

126. A key provision in UNSCR 1373 is the call on member states to ratify the 12 UN and international terrorism conventions and to implement them in full. The United Kingdom is one of only 6 countries to have signed and ratified all 12 conventions related to terrorism which are listed in the Annex to this Report.[123] We commend the British Government for being amongst the first to have both signed and ratified all 12 Conventions related to terrorism and recommend that the Foreign and Commonwealth Office makes full use of its posts overseas to try to ensure that other UN member states do likewise.

127. A number of us visited the UN in March, and heard that CTC work was being held up by delays in translating member states' reports. In the 15 April Security Council debate, Sir Jeremy Greenstock called for an increase in Secretariat translation services to assist the CTC. The Canadian Permanent Representative stated that Canada insisted on limiting the growth of the UN budget, and that therefore UN resources should be shifted to "meet the needs of changing priorities, such as the struggle against terrorism."[124]

128. The effectiveness of the CTC is not only important for the success of the war against terrorism. The success of the CTC has also demonstrated the value of the UN more broadly, at a time when this was perhaps being questioned by some member states, in particular the United States.

129. We understand the concerns expressed by Canada that the UN's budget must not be allowed to grow excessively. However, the vital work of the CTC should not be hampered by inadequate technical resources. It would also be unfortunate if the UN's work in areas which relate to the long term success of the counter-terrorism campaign were to be reduced. In a speech on 6 March, UN Secretary General Kofi Annan argued that there exists a "clear, if complicated, trail from the absence of engagement with Afghanistan in the 1990s to the creation of a terrorist haven there to the attacks on the World Trade Center¼ it is surely beyond question that ignoring or neglecting [conflict] prevention is a recipe for disaster."[125] It would be short sighted to diminish the UN's capacity to work towards the resolution of conflicts and towards economic development in weak states, in pursuit of the more obvious and immediate aspects of counter-terrorism activity.

130. We recommend that, given the additional demands being placed on the UN Secretariat by the work of the Counter-Terrorism Committee, the Government do all it can to ensure that the CTC has adequate resources to fulfil its functions.

International law and military action in Afghanistan

131. A number of issues relating to international law and the treatment of prisoners have arisen during the course of the war against terrorism. The first relates to the US-led coalition's responsibility for prisoners taken within Afghanistan, and arose when a number of prisoners were killed during an attempted uprising in the Qalai Janghi fort at Mazar-e-Sharif in Northern Afghanistan. There was some criticism of Britain's military role in this at the time: the Independent on Sunday reported that "British and American forces participated in last week's slaughter of at least 150 Taliban prisoners of war" at the fort.[126]

132. It has been argued that, because Britain and the United States allied themselves so closely with the Northern Alliance, they were to some extent responsible for the massacre at Mazar-e-Sharif. Adam Roberts, in his memorandum to the Committee, agrees that it is "a difficult question whether the US and other members of the International Coalition have influence over the Northern Alliance's actions in such basic matters as protection of prisoners."[127] Professor Robert points out that the coalition, through its close involvement in the affairs of Afghanistan, has some responsibility: "Even though this [protection of prisoners] is primarily a Northern Alliance responsibility, the Coalition is inevitably involved in the matter." The same might be said of the deaths by asphyxiation of Taliban fighters who were being transported inside metal containers in the heat of the desert, apparently by Northern Alliance forces,[128] and of the conditions in which Taliban prisoners are held in the area of northern Afghanistan controlled by General Dostum, which were described recently by EU envoy to Afghanistan Klaus-Peter Klaiber as resembling those at Auschwitz.[129]

133. In his Pentagon press briefing on 30 November, Donald Rumsfeld indicated in general terms (not in connection with the prisoner question) that the US does have influence with the forces with which it operates in Afghanistan: "We have a relationship with all of those elements on the ground. We have provided them food. We've provided them ammunition. We've provided air support. We've provided winter clothing. We've worked with them closely. We have troops embedded in their forces and have been assisting with overhead targeting and resupply of ammunition. It's a relationship."[130] As Professor Adam Roberts pointed out to us, this contrasts with a statement of the Prime Minister, who was asked on 13 November, again in general terms, "What sanctions do we have over the Northern Alliance?" He replied simply, "None."[131]

134. In October 2001, Professor Roberts had argued that "it was not difficult to foresee that implementation of the laws of war would be a difficult problem in the military operations then in preparation" and he drew attention to "certain obvious issues: the need to conduct coalition operations discriminately; the likelihood of adversary forces executing Coalition prisoners; and the possibility that some captured enemy personnel might not qualify for prisoner-of-war status... A particularly difficult problem was determining where overall responsibility would lie in such matters as treatment of enemy prisoners."[132]

135. The Foreign Secretary claimed that, though he was "troubled by any killings," he had seen "no good case" in support of holding an inquiry. Mr Straw pointed out that the "heads of the ICRC [International Committee of the Red Cross] themselves said that it needed to be borne in mind that these killings occurred after these prisoners had forcibly rearmed themselves, had broken into armoury and had then taken up aggressive action themselves."[133] Such facts could, of course, have been verified by an inquiry.

136. We recommend that the Government continue to do its utmost to ensure that adequate provision is made for the safety and security of prisoners in military operations in which British forces are engaged.

THE DETAINEES AT GUANT&AACUTE;NAMO BAY

137. A further legal question relates to the treatment of persons detained by the US in Afghanistan and transported for questioning to the US military base in Guantánamo Bay, Cuba. More than 300 "unlawful combatants" remain in captivity, from 31 countries. Five of these are British citizens.

138. The US has refused to grant these "detainees" prisoner of war (POW) status, and the Administration contends that the Geneva Conventions do not apply to the detainees. In the words of the US Embassy in London: "The President has determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida detainees. Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As such its members are not entitled to POW status. Under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs. Therefore, neither the Taliban nor al-Qaida detainees are entitled to POW status [although] they are being provided many POW privileges as a matter of policy."[134]

139. Speaking before the camp at Guantánamo Bay was set up, the Foreign Secretary told us that "We have to ensure that terrorist prisoners of war are treated in accordance with international law."[135] However, since the camp was established, government Ministers and spokesmen have no longer referred to terrorist detainees as "prisoners of war."

140. We understand that the US authorities have made "no decisions... on the disposition of the detainees currently being held. The fate of the detainees will be determined on a case-by-case basis."[136] We heard during our visit to Washington in March 2002 that if, after review, the US decides that a detainee does not pose a significant security threat, he will be repatriated. However, the US claims "every right" to detain certain individuals "for the duration of the conflict," even if they are acquitted of specific crimes.[137] Victory in the war against terrorism is difficult to foresee. This leads us to question how long the US intends to keep these individuals in custody.

141. The US President made an executive order on 13 November 2001, to establish special military commissions to try the "unlawful combatants." The announcement of these special commissions provoked considerable controversy in the US and elsewhere.[138] On 21 March 2002, the Department of Defense presented additional procedural guidelines for these commissions. They are designed to try non-US citizens selected by the US President, to include al Qaeda members, people involved in acts of terrorism against the United States, and people who knowingly harboured such terrorists.[139] The procedural guidelines released on 21 March allay some of the fears initially voiced about the commissions: for example, the Department of Defence made clear that suspected terrorists would be granted the presumption of innocence, the right to choose counsel and to see the prosecution's evidence, and to trial in public—though classified information would be kept secret. Those arraigned would also be granted the right to remain silent.

142. However, there is no jury. An appeal procedure is only to a panel of judges appointed by the military: non-US citizens cannot appeal to US federal courts. Detention is indefinite. For these reasons, the military commissions continue to prompt considerable criticism, both inside and outside the United States.[140] The lawyer and academic Ronald Dworkin, assessing the clarified rules for the commissions, described the Administration's decision to prevent appeals to civilian courts as "indefensible. The new procedures permit a prisoner to be tried in secret and sentenced to death on evidence that neither he nor anyone else outside the military—no-one, that is, not under the Pentagon's direct command—has even heard." Dworkin concluded that "we have no right to roam the world arresting foreigners we think might be dangerous and keeping them in our jails when we cannot show them to have committed any crime."[141]

143. The international coalition needs to be seen to treat prisoners justly. 'Winning hearts and minds' in the Islamic world is tremendously important for the long term success of the war against terrorism, and prisoners taken in Afghanistan have not been universally perceived to have been treated humanely and with justice. As Rosemary Hollis also pointed out to us "once you abandon attention to the means" in the war against terrorism, "you influence the ends."[142]

144. We conclude in relation to the detention of Taliban and al Qaeda suspects, as we do in relation to other matters, that the Government must strive to uphold standards of international law, and, to the greatest extent possible, to ensure that prisoners are tried in full accordance with internationally accepted norms of justice.

145. We recommend that the Government consider whether the Geneva Conventions remain wholly appropriate in the modern conduct of warfare. If they do not, there may be a need to work towards a new international consensus to amend the Conventions, to ensure that the protection that they provide to civilians and combatants is maintained.

The International Criminal Court

146. In our Report on British-US Relations, we noted the reluctance of the United States Administration to invite the Senate to ratify the Treaty establishing an International Criminal Court.[143] We called on the Government to continue its dialogue with the Administration; in its response, the Government undertook to do this, with a view to persuading the US of the merits of ratification of the Treaty.[144] Since then, sufficient signatories to the Treaty have ratified it to trigger the establishment of the Court, which is expected on 1 July 2002.

147. We believe that it is in the interests of the war against terrorism to ensure that the International Criminal Court is established and functions effectively. Though the ICC will be unable to try those responsible for the atrocities of 11 September, the war against terrorism is likely to continue for some years. There is a danger that further acts of terrorism may be committed against US, British or other coalition partners' citizens. The ICC, once established, should ensure that those responsible for such acts can be tried according to an internationally recognised system of criminal justice, even if attacks took place beyond US, British or other coalition partners' territories.

148. However, on 6 May 2002 the United States effectively withdrew from the ICC Treaty. Under-Secretary John Bolton wrote to Kofi Annan, declaring that "the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000."[145] The US nonetheless asserts that its action is consistent with its obligations under the Vienna Convention on the Law of Treaties.[146]

149. Explaining the US Administration's action, Under Secretary for Political Affairs Marc Grossman said:

"We believe the ICC undermines the role of the United Nations Security Council in maintaining international peace and security.

We believe in checks and balances. The Rome Statute creates a prosecutorial system that is an unchecked power.

We believe that in order to be bound by a treaty, a state must be party to that treaty. The ICC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens US sovereignty.

We believe that the ICC is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions."[147]

150. Other governments do not share these concerns. But while the legal status of Mr Bolton's letter may be disputed, its effects are clear: the United States will not regard its citizens to be accountable before the International Criminal Court, and will not co-operate with the Court.

151. We deeply regret this action of the United States Administration. We acknowledge the concerns of the US, but we believe they could and should have been dealt with by diplomacy. We recommend that the Government seek to allay the concerns of the US Administration about the International Criminal Court, with a view to persuading it to reconsider its renunciation of the ICC Treaty.

101 Q13 (Foreign Secretary) and George Tenet, evidence before the US Senate Armed Services Committee:

http://www.senate.gov/~armed_services/statemnt/2002/March/Tenet.pdf. Back

102 "Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions" (Bonn Agreement): http://www.uno.de/frieden/afghanistan/talks/agreement.htm. Back

103 The UN Security Council endorsed the creation of a UN Assistance Mission in Afghanistan on 28 March 2002: http://www.un.org/News/Press/docs/2002/SC7345.doc.htm. Back

104 'Donors pledge $4.5 million in Tokyo', see UNDP press release, 22 January 2002: http://www.reliefweb.int/w/rwb.nsf/c7ca0eaf6c79faae852567af003c69ca/8cefbc05fd3d7f79c1256b4a0032d5a7?OpenDocument. Back

105 See http://www.britaininfo.org/usaterrorism/xq/asp/SarticleType.1/Article_ID.2059/qx/articles_show.htm. Back

106 Agence France Presse, Kabul, 6 May 2002. Back

107 "Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions" (Bonn Agreement): http://www.uno.de/frieden/afghanistan/talks/agreement.htm. Back

108 Q70. Back

109 Q70 [Mr Bergne]. Back

110 Q42. Back

111 Q42. Back