House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

Memorandum from Amnesty International UK

THE HUMAN RIGHTS ANNUAL REPORT 2002

INTRODUCTION

1. Amnesty International welcomes the publication of the FCO's Human Rights Annual Report 2002. The practice of producing an annual report contributes to wider and deeper understanding of human rights activities and policies. It provides an opportunity for the FCO to explain issues in greater detail than may be possible in the speeches of ministers or departmental press releases. The Report includes many examples of good practice. Without an annual report, it is unlikely that such examples would reach the public domain in a comprehensive and coherent manner.

2. Amnesty International similarly welcomes the opportunity to contribute to the Committee's scrutiny of FCO human rights policy. This memorandum largely focuses on a number of important areas of concern. On this occasion, unavoidable constraints prevent us from commenting in detail in some of the undeniably important and positive activities described in the Report.

PURPOSE AND INTENT OF THE ANNUAL REPORT

3. In recent years, there has been much discussion of whether the report should focus on country concerns or thematic issues. The Government states that the Report "is intended to provide detailed information . . . on the FCO's activities over the past year to promote human rights abroad". The Report "is not intended to provide an exhaustive analysis of the human rights situation in every country in the world".[1] The FCO has felt that an approach organised on thematic lines best suits its purpose. Although Amnesty International has called for greater consistency in the treatment of countries, we have not taken a position on the question of a country versus a thematic approach. This is because we understand that both approaches have merit. If the Government has chosen to go down the thematic road, Amnesty International has been happy to accept the report on those terms.

4. However, interviewed on the Today programme on 2 December 2002 following the launch of the human rights dossier on Iraq, the Foreign Secretary was asked "why don't we issue dossiers of this sort on other countries where from time to time there are appalling assaults on human rights?" The questioner specifically mentioned Syria as an example. The Foreign Secretary replied:

"No, we do. And since a major reform introduced by my predecessor Robin Cook in 1998, each year the Foreign Office publishes a very thick document called our human rights report. We're proud of it. I look forward to the time when it receives widespread coverage in the media but it's a very important document which details human rights abuses of all kinds and has been applauded by all the non-governmental organisations as well".

5. Amnesty International fears that the Foreign Secretary's answer might have induced listeners to believe that the Human Rights Annual Report contains far more extensive country analysis than it actually does. For example, the index lists four references to Syria, on pages 69, 72, 151 and 187. Only one of these pages provides an assessment of the human rights situation in Syria (p.151) and it does so in a six paragraph box. Two paragraphs describe the general situation, two describe six individual cases and two describe the UK and EU response to those cases.

6. The Foreign Secretary's answer on the Today programme was not an aberration. Another FCO Minister made a similar comment in a later media interview. This risks bringing the annual human rights report into disrepute. If the Foreign Secretary wishes observers to assess the report in terms of a comprehensive description of human rights in different countries in the world, our conclusion must be that it is completely inadequate. If he is content for it to be seen as a thematically organised presentation of UK policy and practice, with a number of, mostly brief, indicative country sketches, Amnesty International is pleased to welcome it as a contribution to the understanding of how this Government pursues human rights in its foreign policy. However, it is now necessary for the FCO to clarify the intent underlying the document.

COMMITMENT TO HUMAN RIGHTS WITHIN THE FOREIGN OFFICE

7. Chapter 2 highlights a number of initiatives to mainstream human rights. We welcome these initiatives, in particular the creation of a more intensive human rights course for officials.

8. However, mainstreaming human rights requires clear leadership from the top, including the Secretary of State, his ministers and the most senior civil servants. The clear commitment to human rights set out in the FCO's mission statement is also useful in this respect. It should be retained.

CHALLENGES AND PROGRESS

9. Chapter 1 begins with a commentary on the impact of the 11 September attacks and counter-terrorism measures. We agree with the FCO that "11 September was not only an attack on individuals or on a country but also a fundamental challenge to universal values, chiefly respect for human rights and the rule of law" (page 11).

10. Although the Anti-Terrorism, Crime and Security Act 2001 is beyond the scope of the Committee, and consequently beyond the scope of this memorandum, Amnesty International would wish to note that we are dismayed that the UK has derogated from articles of the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights. We are concerned that the Act creates a discriminatory, parallel justice system allowing the indefinite detention of foreigners without charge or trial.

11. We are also concerned about detainees in Guantanamo Bay, Cuba. The box on this issue (page 13) is, at best, oblique. For example, it states that:

"The Foreign Secretary, Jack Straw, has raised the circumstances in which British nationals are being held with the US Secretary of State, Colin Powell, on three separate occasions. Senior UK government lawyers and officials have regularly asked their counterparts in the US Administration in Washington and London for progress on the issues concerned".

We are not certain what "circumstances" and "issues" were raised or what "progress" was sought and whether it was achieved.

12. The FCO also states:

"The question of the detainees' status, access to them and the legal procedure to which they might be subject are complex. The UK has discussed these issues with the US and will continue to do so".

Again, we are uncertain about the "issues" raised and what the government's views are with regard to the status of the detainees.

13. The next paragraph reads:

"It is for the US, as the detaining power, to decide whether they are going to prosecute the detainees. According to US Defence officials, no individuals have yet been designated for trial by the Military Commissions and no Military Commissions have so far been arranged. We have made clear our view that the detainees, if prosecuted, should receive a fair trial".

Again, this begs the question of whether the UK government believes that the Military Commissions, as proposed, would constitute a fair trial. Answers to such questions would be welcome.

14. The apparently increased number of country entries in this year's chapter on "Challenges and Progress" is welcome. These are brief sketches of improvements, problems and UK initiatives. In some cases, we feel that entries could benefit from improved balance between the "progress" and the "challenges". However, one section is of particular concern.

15. The three paragraph entry for Saudi Arabia is woefully inadequate. In essence, only one of these paragraphs is used to present the UK's concerns. The report states that the UK is concerned about "aspects of the judicial system". Amnesty International would like the Government to set out what "aspects" it is concerned about. In the final paragraph of the entry (apparently dealing with "progress"), the FCO notes that Saudi Arabia submitted its first report to the UN Committee Against Torture. It fails to note however that this report was submitted in February 2001, that the report tried to convey an impression of Saudi Arabia as a torture-free country and that the country failed to appear before the Committee in November 2001 to provide further clarifications. The FCO report also fails to note that the Committee Against Torture produced concluding observations in June. The second paragraph of these states:

Next year's annual human rights report would benefit from an entry on Saudi Arabia of a much higher quality.

IRAQ DOSSIER

16. Although the Government's publication of a dossier on human rights in Iraq might be beyond the scope of this inquiry, Amnesty International would wish to highlight that it has no argument with its content. Our concerns relate mainly to the document's purpose. Amnesty International believes that the primary intent was to convey what the Foreign Secretary described as the "the comprehensive evil that is Saddam Hussein", in order to strengthen public support for international action, including possible military action. [3]

17. The purpose of UN Security Council Resolution (UNSCR) 1441 is, in the words of the Foreign Secretary, "the peaceful disarmament of Saddam's arsenal of weapons of mass destruction".[4] The government has been clear that should conflict arise, its purpose would be to ensure the removal of such weapons.

18. In a briefing on 2 December 2002, FCO officials stated that the removal of weapons of mass destruction (WMD) was linked to improving human rights for two reasons. First, the government of Iraq has previously used such weapons, including against its own people. Second, WMD are an integral part of the rule of fear and that by removing them "we also deprive Saddam of one of his most powerful tools for keeping the Iraqi people living in fear and subjugation".[5] This may be true. However, the primary means of subjugation in Iraq is the state apparatus, conventional weapons, instruments of torture and execution. The removal of WMD will not inevitably lead to a dramatic improvement in the human rights situation for all the Iraqi people, even if it does break one strand in the web of fear.

19. According to these FCO officials, once weapons of mass destruction have been removed, "then we will be treating Iraq as we treat other countries where there are gross violations of human rights: through the annual UN mechanisms, through our own human rights work around the world, and we will be taking opportunities as they arise to put pressure on the Iraqi regime".

20. In his 2 December speech to the Transatlantic Partnership, the Foreign Secretary described how the dossier "makes for harrowing reading, with accounts of torture, rape and other horrific human rights abuses". When officials were asked during the FCO briefing if the UK is proposing that those responsible be brought to justice before a War Crimes tribunal, or trial within Iraq, they answered:

"We are not saying no to an International War Crimes Tribunal. This is a very complex area of international law. The international community as a whole has really got to agree amongst itself what the right remedy is going to be, and it hasn't done that yet".

Amnesty International does not feel that this is an overly helpful response on an important issue.

21. Amnesty International believes that the Iraq human rights dossier did indeed contain extensive, distressing and credible descriptions of the human rights situation in the country. Although we believe that the purpose of this document was to reinforce public and political support for international action, it does set out the challenges that need to be addressed. We hope that Government planning staff are working on the solutions.

THE UN COMMISSION ON HUMAN RIGHTS (CHR)

22. On page 69, the Annual Report notes that this year's 58th session of the CHR was "particularly difficult" and "a highly charged confrontational session, with voting on resolutions, especially country resolutions, largely split between developed and developing countries". Amnesty International agrees.

23. There were some positive aspects. For example, the Commission recommended an Optional Protocol to the UN Convention Against Torture (see below). It requested an open-ended working group to prepare a draft of a legally binding instrument on enforced or involuntary "disappearances". Amnesty International was pleased that the resolution on the death penalty at the 2002 CHR session was co-sponsored by 68 states and adopted by majority vote. We welcome and praise the European Union's role in achieving these positive results. With respect to the death penalty resolution, the FCO's Annual Report notes that this year's resolution "had a new emphasis on the need to ensure a fair trial" (page 72). Amnesty International would also wish to point out that, for the first time, the Commission also recommended that the death penalty not be imposed for non-violent acts such as sexual relations between consenting adults.

24. Regrettably, however, the principal impressions gained from observing last year's Commission session are of frustration, disappointment and concern about the credibility of what is the most important human rights body in the UN system. As a consequence of politicisation and polarisation, countries like China, Indonesia, Iran, the Russian Federation and Saudi Arabia escaped scrutiny. Israel's failure to co-operate with the CHR's decision that the UN High Commissioner for Human Rights should undertake a visiting mission to the Occupied Territories further undermined the body's credibility and competency.

25. The 58th CHR session saw increased use of the "no action motion", a procedural device to prevent discussion of a country's record. The device was successful, for example, in preventing scrutiny of the situation in Zimbabwe. Interestingly, the FCO notes (page 70) that "although the resolution was not adopted, the tabling and wide distribution of the text nonetheless raised awareness of the human rights situation in Zimbabwe". To a degree, this statement jars with Peter Hain's evidence to the Foreign Affairs Committee, quoted in its Fifth Report of the 2001-02 Session. When the Committee asked whether the Government intended to table a draft resolution on China, the Minister replied:

26. Amnesty International agrees with this year's Annual Report. Tabling and distributing a text does raise awareness of the human rights situation in a country. At the forthcoming 59th session of CHR, the Government should ensure that draft resolutions are tabled on both Zimbabwe and China, as well as other countries of concern.

27. A crucial item on the Commission's agenda was a draft resolution tabled by Mexico calling for counter-terrorism measures to be compatible with international human rights and humanitarian law and for the UN High Commissioner for Human Rights to monitor and analyse counter-terrorism laws and measures. The United States exerted significant pressure in opposition to the draft resolution and a wrecking amendment was tabled by Algeria and other governments. Consequently, Mexico withdrew the proposal.

28. Nevertheless, Mexico again tabled a resolution on human rights and terrorism at the Third Committee of the UN General Assembly. The resolution was adopted by the Committee and is due to be approved by the UN General Assembly during the week commencing 16 December 2002. This is welcome. Amnesty International believes that it should be built on at the next session of the CHR, specifically by establishing a special mechanism to monitor the impact of anti-terrorism measures on human rights. We believe that the United Kingdom should be in the vanguard.

UN SECURITY COUNCIL—THE COUNTER-TERRORISM COMMITTEE

29. Discussion of the Mexican resolution(s) on human rights and terrorism cannot be divorced from discussion of the UN's Counter-Terrorism Committee (CTC). The Committee exists to oversee the implementation of UNSCR 1373. In a box on page 71 of the annual report, the FCO states that "we will continue to use our influence on the Counter-Terrorism Committee in New York to maintain a dialogue on human rights, including with the Office of the High Commissioner for Human Rights". Amnesty International believes that the CTC should have gone further.

30. Even before 11 September, states justified repressive laws and actions, leading to human rights violations, on the grounds of national security or counter-terrorism imperatives. In the wake of the attacks in New York and Washington, and given impetus by UNSCR 1373, these measures were enhanced and expanded in many countries. The CTC exists to monitor implementation of UNSCR 1373 and provide advice to UN member states. Amnesty International believes that its pool of experts should have included an expert on human rights. If the CTC is responsible for ensuring that countries adopt necessary counter-terrorism measures, it should also have taken responsibility for helping to ensure that such measures comply with international human rights law.

THE INTERNATIONAL CRIMINAL COURT

31. Amnesty International is delighted that the Rome Statute of the International Criminal Court (ICC) came into force on 1 July 2002. 87 countries have now ratified the Statute. The UK played a very important role in negotiating the Statute, has enacted implementing legislation and has nominated a candidate to be a judge at the Court. However, despite the entry into force of the Statute, 2002 has been a difficult year for the ICC, due to a sustained campaign by the USA.

32. The FCO's Annual Report examines the ICC over the course of nine paragraphs on pages 123-124. We are surprised that only one of these paragraphs deals with the US assault on the ICC. This paragraph notes that the UK Government does "not share US fears that the ICC will become a vehicle for malicious and politically motivated indictments of service personnel and officials". However, all that it has to say about one of the most contentious UN Security Council battles of the year is, "on 12 July the United Nations Security Council unanimously adopted a resolution which effectively prevents any potential ICC prosecution of UN peacekeepers for one year". No commentary, context or explanation of the UK's role in this vote is set out in this section. If the Human Rights Annual Report is to be an instrument of transparency, then such text is a pre-requisite for its effectiveness.

33. In June, the US sought to introduce language into Security Council resolutions that would grant immunity from prosecution to peace-keepers, both current and former, except before their national courts. The proposal was rejected and so the USA vetoed an extension of the United Nations Mission in Bosnia and Herzegovina (UNMBIH). After days of negotiation and argument, a resolution was agreed on 12 July. This ensures that if a case arises involving personnel or officials from a contributing state that is not a party to the Rome Statute, the ICC will not commence an investigation for a twelve-month period. The resolution expresses the Security Council's intention to renew this request "under the same conditions each 1 July for further twelve month periods for as long as may be necessary".[7] This UK played a significant role in securing its agreement.

34. The FCO believes that this was an honourable compromise, maintaining the Bosnia mission whilst preserving the integrity of the Statute. We disagree. UNSCR 1422 envisages a permanent state of impunity from ICC scrutiny for UN peacekeepers from countries which are not party to the Rome Statute (even if they are accused of crimes committed on the territory of a country that has ratified it. This resolution undermines the Rome Statute, national sovereignty and international justice. The United Kingdom should have opposed it. Certainly, it should have explained its position in its annual report on human rights. The UK should seek to ensure that resolution 1422 is not renewed next year.

35. In August 2002, the US State Department briefed foreign ambassadors on US opposition to the ICC and warned them of the American Servicemembers Protection Act's prohibition on military assistance to countries that are party to the ICC Statute. This ban may be waived if the state enters into an impunity agreement with the USA. It is possible that the rolling out of formal requests, including to the UK, for the negotiation of these impunity agreements began after this year's Report went to print.

36. The impunity agreements sought by the USA are sometimes dubbed "Article 98 agreements", because the US government and others cite Article 98 of the Rome Statute to legitimate the agreements. Amnesty International believes that Article 98 was negotiated to deal with already existing Status of Forces Agreements. The agreements proposed by the USA are therefore contrary to the spirit and provisions of the Rome Statute. If states parties conclude such an agreement, it is possible that they would be in breach of international treaty law.

37. A typical US impunity agreement covers a wide category of people: current or former Government officials, employees (including contractors), or military personnel or nationals of the USA. It is not therefore limited to US officials or service personnel, or even to US nationals. It ensures that no-one from the above categories will be surrendered to the ICC. The agreements do express an "intention" to investigate and to prosecute "where appropriate" acts within ICC jurisdiction allegedly committed by someone from the above category.

38. The UK is one of the countries most supportive of the impunity agreements within the European Union. Differences between the member states led the agreement of principles to guide governments in their reaction to US approaches. One of the principles is that the agreements should not lead to impunity. However, US law does not criminalise all of the conduct set out in the ICC Statute. For example, not all war crimes in the Rome Statute are expressly defined as crimes under federal law when committed abroad. Crimes against humanity, except torture, are also not federal crimes if committed abroad. The Government needs to clarify whether it intends to require or at least call for revisions of US law before concluding an agreement.

39. The UK government's conduct over the ICC, specifically in relation to US manoeuvres, exemplifies how quickly a country's reputation on an issue can change. Until June, the UK had an excellent reputation as a strong supporter of the ICC. The importance of its role in the negotiation of the Rome Statute was readily acknowledged by other countries and NGOs. This fact remains. However, the UK is now perceived as a country which believes that the wishes of the US administration are more important than the future of an institution designed to address the worst crimes in the world.

40. It is difficult to believe that the present US administration confines its ambitions to ensuring impunity for its own nationals from the ICC. Its actions suggest more fundamental opposition to the institution's existence. If the UK government is alive to the consequent threat, it is not demonstrating an intent to counter it. Perhaps more than on any other single issue arising over the past twelve months, UK conduct on the ICC has led us to suspect the depth of its commitment to human rights.

DEATH PENALTY

41. Amnesty International continues to welcome the UK Government's active work on the death penalty, including through convening the FCO Death Penalty Panel. This is a useful arena for the government, NGOs and experts to share information and discuss strategies. The continuing operation of the EU guidelines on the death penalty is also welcome.

42. We are delighted that the UK Government has signed Protocol 13 of the ECHR (and look forward to its early ratification). We commend the presentation of policy and practice set out on pages 130-135 of the Report.

TORTURE

43. Amnesty International is pleased that the FCO describes torture as "abhorrent and illegal" and that "international action against torture is a priority for the FCO". In past years, we have commended the FCO's pursuit of this priority. The initiatives set out on pages 127-130 show further good work.

44. We are particularly pleased that the UK has continued to support the agreement of an Optional Protocol to the UN Convention Against Torture. This instrument has been in the process of negotiation for a decade. It will create a new sub-committee of the UN Committee Against Torture which can visit places of detention in states that ratify the optional protocol and recommend measures for the prevention of torture. The UK has been supportive of a strong text for the protocol, despite concerted opposition from the US and other countries. This opposition led to tough negotiations at this year's UN Commission on Human Rights and in the Third Committee of the UN General Assembly. Formal adoption of the Optional Protocol by the General Assembly is imminent.

ARMS EXPORT CONTROLS

45. The Export Control Act 2002 is welcome, although Amnesty International believes that the legislation could and should have been stronger. In particular, we are disappointed about the lack of coverage of licensed production, end-use monitoring and prior parliamentary scrutiny. Draft secondary legislation is also deficient in a number of respects, particularly on the issue of extraterritorial arms brokering.

46. Beyond the Act, we are concerned about the direction of arms exports policy, although we acknowledge that a rigorous assessment of conduct during 2002 cannot be achieved before the publication of the Government's next annual report on strategic exports. However, we would wish to highlight the change in practice which allowed the export to the USA of Head-Up Display units for F-16 warplanes destined for Israel. F-16s have been used in the Occupied Territories. On page 28 of the report, the FCO describes this as a "clarification". Amnesty International believes that it was a more fundamental change and demonstrates the Foreign Secretary's power to change important aspects of policy without prior consultation or discussion in Parliament.

47. A recent report on the Government's arms export policy by Saferworld and the Institute of Public Policy Research draws attention to further areas of concern. In particular, it draws attention to the granting of wide-ranging open arms export licences to Tajikistan, Turkmenistan and Uzbekistan. That open licences should be granted with respect to such countries is disquieting. Amnesty International is concerned that the government has presided over a marked increase in the use of open licensing, contrary to the recommendations set out in the Scott Report.

Amnesty International UK

18 December 2002

1 FCO Human Rights Annual Report 2002 Cm 5601, inside front cover. Back

2 Conclusions and recommendations of the Committee against Torture: Saudi Arabia. 12/06/2002. CAT/C/CR/28/5. (Concluding Observations/Comments).This is available at ://www.unhchr.ch/tbs/doc. Back

3 The Foreign Secretary, interviewed on the Today programme 2 December 2002. Back

4 "The Continuing Importance Of The Atlantic Partnership", speech by the Foreign Secretary to a breakfast meeting of the Transatlantic Partnership, London, 2 December 2002. Back

5 Edited transcript of the FCO briefing at ://www.fco.gov.uk Back

6 Foreign Affairs Committee, Fifth Report of Session 2001¸02, Human Rights Annual Report 2001, HC 589, paragraph 27. Back

7 Security Council resolution 1422, 12 July 2002. Back