House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

Memorandum from the Foreign and Commonwealth Office

RESPONSE BY THE FOREIGN AND COMMONWEALTH OFFICE TO QUESTIONS PUT BY THE COMMITTEE (shown here in italics).

1. In its response to recommendation (b), the Government told the Committee that it is "looking to deliver a range of technical assistance programmes to help states with implementing their international obligations" regarding terrorist financing. The Government reported that "the Commonwealth Secretariat and the Charity Commission, on behalf of the FCO, intend to run seminars on legislative and administrative measures to combat the financing of terrorism (including the regulation of charities). These will be delivered to a range of regions including the Gulf". The Committee would like to receive a report of progress in this area of policy.

The Foreign & Commonwealth Office is finding the Commonwealth Secretariat and the Charity Commission to deliver assistance programmes to a range of countries in the areas of counter-terrorism legislation and combating terrorist financing, including the regulation of charities. These are areas identified by the UN Counter-Terrorism Committee under UNSCR 1373 as priority areas for implementation.

The Commonwealth Secretariat programme will assist states in implementing the 12 existing UN counter terrorism conventions and in drafting domestic counter-terrorism legislation. The programme takes place in two stages, the first being a series of regional seminars and the second being specific in-country follow-up by expert consultants to advise individual states on their own legislation requirements. To date, regional seminars have been held in Botswana (Nov 02), Antigua (Feb 03), Sri Lanka (Mar 03) and two more are scheduled for West Africa (May 03) and the Pacific (June 03).

The Charity Commission programme focuses on the regulation of charities to ensure that they are neither knowingly nor unknowingly misused to support terrorist activities, primarily through financing activities. This programme is also being implemented in two stages, regional seminars and then specific in-country follow up. The first seminar took place in Colombo in March 2003 for eight countries in South and South East Asia. The seminar scheduled to take place in the Gulf has been postponed primarily because of military action in Iraq. However the delivery of this assistance will still take place at a later date. The next seminar is due to be held in South Africa in July 2003 for the countries of South and East Africa.

In total the ECO has committed £620,000 to these two programmes over two financial years.

2. With reference to recommendation (e), the Committee wishes to receive a report of progress towards implementation of the changes to NATO agreed at the Prague summit, including new NATO capabilities to defend against WMD attack. The Committee also requests a statement of Government objectives in the development of the NATO Response Force and new NA TO command structures.

At the Prague Summit NATO leaders agreed a comprehensive package of measures aimed at strengthening NATO's ability to meet new threats, especially those of terrorism and weapons of mass destruction. To do this, NATO must have forces able to move quickly to wherever they are needed, sustain operations over distance and time and operate in an environment where they might be faced with threats from chemical and biological weapons. The UK worked hard to ensure Prague outcomes would contribute to the continuing modernisation of the Alliance. Our objective now is to ensure implementation is completed in a timely and effective manner, avoiding dilution and compromise.

The NATO Response Force (NRF):

New NATO Command Structure:

The new NCS, consisting of one operational and one functional strategic command, should maximise NATO's operational effectiveness and its ability to deploy quickly and flexibly in response to operational needs. The operational command, based in Europe, will be trained and fully capable of commanding the land, sea and air components of operations from either their static locations or from deployed headquarters. The Transformation command, with its headquarters in the United States, will have a presence in Europe and will be the "engine room" for the continuing transformation of military capabilities, for developing doctrine and training, and for the promotion of interoperability of Alliance forces. We have worked closely with key Allies to ensure the MMR remains the foundation of the new Command Structure. Some difficult decisions remain on the final geographic spread of HQs, but we are confident that these will be made by June.

Capabilities for Defence against Terrorism:

The PCC was launched to improve capabilities in key operational areas, including defence against WMD. The NAC is kept regularly informed of progress in achieving the goals of the PCC. National progress reports have just been submitted by Allies and we await their analysis by NATO staffs. The UK's input shows that all our commitments are on track, with the minor exception of the Stormshadow PGM, which missed its in Service date, but has been used successfully in Iraq in recent weeks.

The five NBC Defence Initiatives announced in Prague (Prototype Deployable NBC Analytical Laboratory; Prototype NBC Event Response Team; Virtual Centre of Excellence for NBC Weapons Defence; NATO Biological and Chemical Defence Stockpile; and Disease Surveillance System) will contribute to the Alliance's overall ability to respond to possible terrorist attacks employing chemical, biological or nuclear weapons.

The development of all five initiatives is on track. An accelerated timetable has been developed for the analytical laboratory, including a programme of exercises and evaluation running throughout 2003. The aim is to enable the delivery of an operational capability by the beginning of 2004.

Additionally, the UK is leading efforts to explore the scope for improving other aspects of NBC defence (eg: thorough decontamination of assets; NBC survey and reconnaissance and BW detection) through multinational cooperation. Co-operative mechanisms might include role specialisation, role sharing, common equipment pooling and common procurement. The results of this work will be reported to NATO in May.

3. With reference to recommendation (g), the Committee feels that the Government`s response does not amount to a clear statement of policy. The Committee therefore requests that the Government provide a full statement of its policy on targeted killings, together with its opinion on the legality of the US operation in Yemen of 3 November 2002.

We believe that our response was an unambiguous statement of the Government's policy on targeted killings. International law establishes the right to take necessary and proportionate action for the purpose of self-defence. The Government believes the scale and unpredictable nature of the terrorist threat posed by Al Qa'ida and related groups requires a preparedness to take rigorous action in self-defence. We cannot, however, prejudge what form any such actions might take; they would vary from case to case. But we would always act in accordance with international and domestic law when deciding on the action necessary to protect the UK and its citizens.

The Government is not in a position to offer a definitive opinion on the legality of the alleged US operation in Yemen. We are not in possession of all the facts concerning the precise circumstances of the operation that would be necessary to make such a determination.

4. With reference to recommendation (h), the Committee is concerned that the Government commits itself only to informing Parliament of all important matters affecting United Kingdom nuclear policy "as necessary". The Committee wishes to be informed of all changes to United Kingdom nuclear policy. It also wishes to receive from the Government a response to recent reports (such as that in the Guardian on 7 March 2003) that the United States is developing a new generation of sub-strategic nuclear weapons.

We made clear in our Command Paper response to the Committee of 25 February, in response to the Committee's request that the Government inform the Committee and the House if it decides to change its nuclear posture, that we would inform Parliament as necessary of all important matters affecting United Kingdom nuclear policy. This would of course include any situation in which there might be a question of a change in the UK's nuclear deterrence policy as laid out in the 1998 Strategic Defence Review.

The Committee refers to a recent UK newspaper report that the US is developing a new generation of sub-strategic nuclear weapons. Mike O'Brien, replying to a similar question from Sir John Stanley in July last year, published as Appendix 1 to the minutes of evidence in the Committee's report, set out the key facts as we understand them: ". . . It is, of course, for the US not for us, to set out and explain what is, and what is not, US policy." The US has emphasised, however, that there is no such programme. US Secretary of State, Colin Powell, made this clear on 10 March [2002], when he said: "What we are looking at, and what we have tasked the Pentagon to do, is to say whether or not within our lowered inventory levels we might want to modify or update or change some of the nuclear weapons in our inventory to make them more effective. But we are not developing brand new nuclear weapons, and we are not planning to undergo any testing."

The US Administration has requested and received funding in the FY 2003 US Defence Budget for a three year, $15 million per annum, feasibility study into Robust Nuclear Earth Penetrators (RNEPs). As the name implies, this is a feasibility study looking at the potential possibilities for developing a RNEP. It is not a decision by the US Administration to research, develop or deploy such a weapon nor is it a study into a new generation of sub-strategic nuclear weapons. Senior US National Nuclear Security Administration officials underlined this point when testifying to Congress in support for the FY 2003 Defence Budget request. They stated that: "RNEP is not a new design, it is not a low-yield `mini-nuke' . . . and it is not a significant departure from current stockpile weapons . . . the three-year RNEP feasibility study will assess the feasibility of modifying one of two candidate nuclear weapons currently in the stockpile to provide enhanced penetration capability into hard rock geologies and develop out-year costs for the subsequent production phases, if a decision is made by the Nuclear Weapons Council to proceed."

5. With reference to recommendation (i), the Committee wishes to receive a statement from the Government setting out its assessment of the extent to which international co-operation against terrorism has been disrupted by the substantial international divisions over how to address the threat from Iraq.

There is no evidence that international co-operation against terrorism has been disrupted by disagreement over Iraq. There is continuing widespread and close international co-operation on the security, intelligence, law enforcement, military, and diplomatic fronts which is severely disrupting terrorist operations and leading to further arrests. This includes continuing close and useful co-operation with countries that have been critical of Coalition action in Iraq. The effectiveness of counter-terrorism work in the UN and in other multilateral fora such as the EU and G8 has similarly been unaffected by disagreement over Iraq. We believe that the strength of the international community's collective interest in defeating terrorism will ensure that such efforts are not derailed by short-term political differences. In the medium and longer term, disarming Iraq of weapons of mass destruction should help to reduce the threat from international terrorism.

6. The Committee disputes the Government`s assertion, in response to recommendation (o), that "Disarming Iraq removes the very real and catastrophic threat of international terrorists getting hold of weapons of mass destruction". There are countries other than Iraq which possess weapons of mass destruction, and these countries might also provide such weapons to terrorists. The United States argues in its National Security Strategy that "We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends." The Committee requests a statement of the Government's medium-and long-term strategy for addressing the production and proliferation of weapons of mass destruction by states other than Iraq—including any plans to enhance existing cooperative threat reduction programmes; proposed measures to strengthen multilateral arms control regimes; and British policy towards known proliferators such as North Korea. It would also like the Government to state whether or not it believes that "regime change" is an appropriate response to WMD proliferation in states other than Iraq.

The Government's response to the Committee's recommendation (o) should have referred to the removal of "a" rather than "the" threat of terrorist access to WMD.

The Government takes the proliferation of Weapons of Mass Destruction (WMD) very seriously. Together with the spread of extreme international terrorism, it represents the most serious threat to international security of the Twenty-first century. The international non-proliferation treaty regimes have not been a failure: they have limited the spread of nuclear, chemical and biological weapons successfully for over thirty years. But the treaties are not yet universal; and experience with Iraq and North Korea has demonstrated that more is needed to prevent determined proliferators from cheating on their international obligations.

There is a range of tools available to counter proliferation. The multilateral treaty regimes raise the political cost of pursuing WMD. When underpinned by effective inspection regimes, such as those of the International Atomic Energy Agency (IAEA) and Organisation for the Prevention of Chemical Weapons (OPCW), they also raise the economic cost. National and multilateral export controls on sensitive materials, technology and expertise also have a vital role: the UK is a leading and active member of the Nuclear Suppliers' Group, the Australia Group and the Missile Technology Control Regime.

Efforts to eliminate the proliferation risk posed by stocks of WMD-sensitive materials (often referred to as "co-operative threat reduction") are also part of the counter-proliferation toolbox. In this context, the Government has announced a commitment of $750 million over the next ten years to the G8 Global Partnership. Projects planned and under way concentrate on priority areas such as chemical weapons destruction, safe disposition of weapons-usable plutonium, dismantlement of submarines and secure storage of nuclear fuel which poses both an environmental and proliferation risk in North-West Russia, and retraining and employment for former Soviet nuclear scientists.

Diplomatic and economic pressure can be effective against some countries of proliferation concern: most often when it can be brought to bear multilaterally rather than bilaterally. Where possible, interception of illegal shipments of WMD-sensitive items can hinder covert proliferation programmes. Effective nuclear, biological and chemical defence—including civil defence—also has a part to play. And as a last resort, the Government does not rule out direct action, including military action in accordance with international law.

All elements of the counter-proliferation "toolbox" are necessary; none is sufficient in itself. It would be foolish to rule out any one. On the contrary, the Government is working to reinforce them all and strengthen its ability to deploy them to maximum effect. That does not mean that all are appropriate to every case. All proliferators pose a challenge to the international community, but our response must be tailored to the circumstances of each one. The Government's objective is always the same—elimination of WMD. But in pursuing that aim it deploys the measures which it judges will be most effective in each case. In the case of North Korea, tripartite discussions between China, the USA and North Korea were in prospect, at the time of writing.

Most identified WMD programmes are justified by security concerns however misconceived these may be. In addition to raising the costs of such programmes, it is also possible to reduce the perceived benefits. In that respect, the Government's actions to revitalise the Middle East Peace Process, to encourage India and Pakistan to resolve their differences, to bring lasting stability to the Korean Peninsula and to eliminate the threats posed by Iraq to its neighbours also further non-proliferation objectives.

This is not a strategy which the UK can pursue alone. Proliferation poses a global challenge and requires a collective international response. In developing and applying the counter-proliferation toolbox, the Government is working with partners and allies bilaterally, in the EU, the G8, NATO, and through the United Nations Security Council.

7. With reference to recommendation (q), the Committee notes that on 24 February 2003, the French government published a memorandum proposing a reinforcement of the UN inspections regime. The Committee wishes to know whether, in the Government`s opinion, the proposals put forward by the French government would have increased the effectiveness of the inspections regime—and if not, why not. If these proposals would have strengthened the inspections regime, why were they not incorporated in the initial structure of UNMOVIC?

The Government continues to believe that the French Government's memorandum presented on 24 February, while no doubt well-intentioned, was misguided. The rationale it presented for reinforcing the UN inspections regime in Iraq was based on a fundamental misunderstanding of the nature of the inspections.

The UN inspectors were never intended to be detectives; to uncover Iraq's concealed WMD programmes through a massive search effort. Any such effort in a country the size of Iraq would be doomed to fail, however large the inspection teams. Similarly, the inspectors were not intended to "compel" Iraqi compliance, as the French Government's paper proposed (and it is difficult to see how they could have been adequately reinforced so as to enable them to do so). Their mandate, under repeated United Nations Security Council Resolutions, was to monitor and verify Iraq`s compliance. Saddam Hussein never made the strategic decision to comply and give up his WMD programmes, which would have allowed the inspectors to fulfil their mandate. As Dr Blix himself pointed out, the principal problem was not the number of inspectors but rather the degree of active Iraqi co-operation. The Government therefore believes that it is difficult to see how the inspectors could have been reinforced in such a way as to enable them to compel Iraq to do anything.

The Government agrees with Dr Blix: without such active co-operation the inspectors would never have been able to fulfil their mandate. UNSCR 144l placed specific emphasis on the need for Iraq to co-operate "immediately, unconditionally and actively" with UNMOVIC and the IAEA (operative paragraph 9). Iraq wholly failed to comply with this requirement.

8. With reference to the Government's reply to recommendation (s), the Committee notes the assessment of the United States that "We must adapt the concept of imminent threat to the capabilities and objectives of today`s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning". The Government states that it "supports the view that this right [of self-defence] applies as much to imminent threats from terrorism as to the more conventional threats of the past", and therefore "the Government has not considered it necessary to review its policy" on the issue of pre-emptive defence following the publication of the US National Security Strategy. The Committee seeks some clarification of Government policy in this area: Does the Government agree with the United States' view that terrorist attacks using WMD might be launched without warning? If so, why is it not considered necessary to re-examine the question of the pre-emptive use of force to address threats, when it may sometimes be impossible to provide proof of an imminent threat of attack?

The Government agrees with the United States' view that terrorist attacks using WMD might be launched without warning. Attacks by al Qa'ida and the groups linked to them have come without warning. Their attacks have caused civilian casualties on a massive scale. We have no reason to believe that such groups would change their methods should they use the CBRN materials that we know they are trying to obtain.

HMG have not considered it necessary to re-examine the question of the pre-emptive use of force because the right under international law to take necessary and proportionate military action in self-defence, not only where an attack has occurred but also where an attack is imminent, would apply to terrorist attacks using WMD as it does to conventional attacks. HMG believes that in accordance with existing policy that all relevant factors should be taken into account when considering action in self-defence including the likelihood of any attack and the potential seriousness of the consequences.

9. With reference to recommendation (y), and in light of the decision to launch military action against the Iraqi regime, the Committee requests further details of the Government`s plans for post-conflict Iraq. In particular, the Committee wishes to know what role the Government believes the United Nations should play in the post-conflict governance of Iraq; which "model" (if any) is being envisaged for a transitional authority; and how an international civilian authority in Iraq should interact with a post-conflict peacekeeping force. Does the Government believe, with the United States, that the military and civilian administrators after a US invasion should report to General Tommy Franks, commander of US forces in the Middle East?

As the Coalition proceeds with the reconstruction of Iraq, it will work with its allies, bilateral donors, the United Nations and other international institutions. The United Nations has a vital role to play in the reconstruction of Iraq. We plan to seek the adoption of new United Nations Security Council Resolutions that would affirm Iraq's territorial integrity, ensure rapid delivery of humanitarian relief and endorse an appropriate post-conflict administration for Iraq. We want to see a phased transfer of authority leading to a new and effective representative Iraqi government as soon as possible. We will work with the UN and the international community to help the people of Iraq to achieve this aspiration. As soon as possible, we envisage responsibility for administration of Iraq being transferred to a representative group of Iraqis in the form of an Iraqi Interim Authority. The two main functions of such a body would be to take on responsibility for administration and to create a constitutional framework to facilitate the formation of a democratic government. The goal would be the emergence of a representative Iraqi government, committed to the long-term political and economic reform of the country and to peaceful relations with the region. The international community would remain engaged in Iraq's future through the IFIs, regional agreements, bilateral and multilateral aid programmes, and other political and practical support. Immediately after the conflict the first task of the coalition will be to continue to stabilise the country and, working with the UN inspectors, to find and secure Iraq's weapons of mass destruction. The Office of Reconstruction and Humanitarian Aid, ORHA, will have responsibility under the Geneva and Hague Conventions for ensuring the immediate security and humanitarian needs in Iraq are met. The UK will work closely with the US and other coalition allies within ORHA, which will be headed by retired US General Jay Garner.

10. With reference to recommendation (z), the Committee would like the Government to send an assessment of the short term effects of military action against Iraq on recruitment for, and the threat from, al Qaeda and associated terrorist groups, both in the Islamic world and in Western Europe.

It is clear that Al Qa'ida is trying to exploit events in Iraq for its own purposes. Bin Laden's message of 11 February urged Muslims to unite in support of the Iraqi people in what he characterised as a war against Islam. He welcomed martyrdom operations against the US and Israel. We assess that, in the short term, Al Qa'ida's stance on Iraq may encourage some misguided individuals or small groups to try to commit terrorist acts, including against coalition forces in Iraq, and elsewhere in the region or further away. In the longer term, we assess that Al Qa'ida's stance on Iraq will be undermined by the benefits of disarming Iraq of weapons of mass destruction, the removal of the current Iraqi regime and evidence that the international community is making a renewed effort to advance the Middle East Peace process.

11. With reference to recommendation (cc), the Committee wishes to receive updated information about progress towards the implementation of the Quartet "road map" and broader efforts to revive the Middle East peace process.

UK efforts to revive the Middle East peace process continue to focus on the roadmap. Thanks in some part to UK support to Palestinian reform initiatives and to the creation of the post of a Palestinian Prime Minister, we are now nearing publication of the roadmap, which sets out clearly the steps that need to be taken by both sides to reach a final settlement.

As a follow-up to the 14 January London meeting on Palestinian reform, the UK hosted meetings of the Ad Hoc Liaison Committee (AHLC)—the international donor co-ordination mechanism—and the Task Force on Reform in London from 17-20 February. These meetings addressed the essential requirements for a renewed peace process: publication of the roadmap, on which Quartet envoys are engaged; Palestinian reform, on which the Task Force built on progress made at the on 14 January meeting; and economic support for the Palestinian Authority and people.

We have worked closely with the Palestinians on the issue of a Palestinian Prime Minister over the last few months, and welcomed the appointment of Abu Mazen on 18 March. An empowered and credible Prime Minister is an important part of the broader context of the Palestinian reform process which, as set out in Bush's speech of 24 June and the roadmap, are positive steps towards a meaningful peace process. Likewise, we continue to encourage Prime Minister Sharon and Foreign Minister Shalom to work with the international community in restoring hopes for peace.

The Prime Minister welcomed President Bush's commitment on 8 April that the roadmap will be presented to the parties when Abu Mazen takes office as Palestinian Prime Minister. This is a significant step. All parties should respond positively and start implementation without delay.

The settlement to which the roadmap leads is consistent with all the key international statements of principle on the dispute since 1967: UN Security Council Resolutions 242, 338 and 1397; the Madrid terms of reference; the principle of land for peace; existing agreements between the parties; and the March 2002 Arab League initiative, offering Israel full normalisation of relations with its neighbours in the context of a settlement.

In Phase One of the roadmap, which will formally begin once it is presented to the parties, the Palestinians must act against terrorism; rebuild their security infrastructure; and pursue reform, including constitutional reform. Israel must facilitate reform; ease the humanitarian situation in the Occupied Territories; withdraw its forces to pre-28 September 2000 positions and freeze all settlement activity. Phase Two focuses on an independent Palestinian state with provisional borders and a new constitution, and takes up the Lebanese/Syrian track of the peace process. Phase Three will see Israeli-Palestinian negotiations on a permanent status agreement. I have put an informal copy of the roadmap in the House library.

12. In the letter of 8 April the Committee asked to receive a note on the legal rights, duties, obligations and limitations of occupying powers, both in general and also specifically under the Geneva conventions. In particular, the Committee would like the note to refer to the likely future position of the US and the UK as occupying powers in Iraq.

The general principle is that an Occupying Power does not become the government of the occupied territory. Rather, it exercises temporary de facto control in accordance with in particular the provisions of Geneva Convention IV of 1949 and the Hague Regulations of 1907 (relevant extracts attached in Annexes A and B). These instruments are complex, but the following points give an indication of the position of an Occupying Power:

(a) Under Article 43 of the Hague Regulations, authority having passed into the hands of the Occupying Power, the latter shall take all the measures in its power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Thus, while changes to the legislative and administrative structures of Iraq are permissible if they are necessary for security or public order reasons, or in order to further humanitarian objectives, the occupant should not undertake more wide ranging reforms of governmental and administrative structures.

(b) Geneva Convention IV provides that the occupant should not alter the status of public officials or judges (although officials may be removed from their posts). If there is no functioning local administration, there is scope for an occupying power to introduce its own administrative system if that is necessary for maintenance of good order in the occupied territory.

(c) Geneva Convention IV also provides for the penal laws of the occupied territory to remain in force except where they constitute a threat to security or an obstacle to application of the Convention. To enforce those laws the courts of the occupied territory are to be allowed to continue to function. The Occupying Power may promulgate its own laws in order to fulfil its obligations under the Convention and to maintain security and public order.

(d) Apart from rules on the collection of taxes (which must as far as possible be in accordance with existing local law), there are no specific provisions in Geneva Convention IV or the Hague Regulations dealing with the economy of the occupied territory. However, the general principle outlined in (a) above applies equally to economic reform, so that the Occupying Power should not undertake major structural economic reforms.

In each case the application of the Hague Regulations and the Geneva Conventions to the actions of the occupying powers in Iraq will need to be considered in the light of the specific circumstances.

These provisions will not apply to the people of Iraq themselves, if through a legitimately established authority they undertake governmental and administrative reform.

Foreign and Commonwealth Office

April 2003



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