Supplementary memorandum submitted by
the Foreign and Commonwealth Office
ANNUAL REPORT
ON HUMAN
RIGHTS ORAL
EVIDENCE—SUPPLEMENTARY
INFORMATION
I hope that the Committee members found the
oral evidence session on 24 February into the FCO's Annual Report
on Human Rights helpful. I certainly believe that our dialogue
with the Committee has been extremely important in improving and
maintaining the quality of the report.
There were a number of questions raised by members
during the session on which I undertook to write further. These
included funding for human rights under the Global Opportunities
Fund, the cutting of links between Zimbabwe and the Commonwealth,
and the human rights situation in Iraq.
The Global Opportunities Fund (GOF)
The Committee asked for a full note on how the
move from the Human Rights Project Fund (HRPF) to the Global Opportunities
Fund would affect total FCO spending on human rights-related projects.
The Committee may find it useful to refer to annex one of this
letter which clarifies the main points on general GOF expenditure.
If it would be helpful, I would also be happy to arrange a separate
informal briefing for the Committee by officials on the detail
of GOF.
In terms of funding for human rights, democracy
and good governance projects, the Committee may find it useful
to refer to the table (annex two) that explains FCO support in
this area FY 2001-02. You will see that the FCO has historically
used the HRPF to fund the majority of its human rights, democracy
and good governance projects. After this transitional year, human
rights, democracy and good governance projects will primarily
be funded across the thematic GOF programmes instead of just the
one specific fund. For example, in 2003-04, a recent audit showed
that across the Re-uniting Europe, Engaging with the Islamic World
and Strengthening Relationships with Emerging Markets programmes
the FCO spent £3 million on human rights, democracy and good
governance projects. We are projecting that this expenditure will
continue to rise in proportion to any increase in the overall
GOF budget.
Next year we are also launching a 6th GOF programme
that will specifically focus on human rights, democratisation
and good governance. This programme will fund the production of
the Annual Report on Human Rights, subscriptions to international
human rights organisations and projects based on six thematic
areas identified by ministers: anti-torture, abolition of the
death penalty, freedom of expression, child rights, rule of law
and discrimination. The estimated total amount spent on human
rights, democracy and good governance projects under the GOF and
residual HRPF in FY 2005-06 is projected to be in excess of £14.5
million.
I understand your concern in making sure that
the transition from HRPF to GOF does not mean a reduction in our
expenditure on human rights. As you can see, in fact, our overall
commitment to human rights is projected to increase with the setting
up of the Global Opportunities Fund. As I said at the oral evidence
session, we will continue to monitor the transition to the GOF
and I am confident that the Committee will also keep us to account.
Zimbabwe and the Commonwealth
The Committee asked whether, following President
Mugabe's decision to withdraw Zimbabwe from the Commonwealth,
all ties between Commonwealth organisations and Zimbabwe had been
cut.
By withdrawing from the Commonwealth, the government
of Zimbabwe chose to sever its links with the Commonwealth Secretariat
and all the official institutions of the Commonwealth. However,
some of the Commonwealth's civil society organisations stand ready
to maintain their links with the people of Zimbabwe, who were
not consulted on the decision to leave the Commonwealth. The UK
Government's aim is to ensure that Zimbabwe's withdrawal from
the Commonwealth has the minimum possible impact on Zimbabweans
living in the UK
Zimbabwe's withdrawal from the Commonwealth
does not affect the diplomatic relations that exist between the
UK and Zimbabwe. The UK remains a leading humanitarian donor to
Zimbabwe, having provided £62 million in emergency food aid
since September 2001.
UK responsibility for all coalition detainees
in Iraq
The Committee asked whether the UK Government,
as members of a joint UK and US coalition, had responsibility
under the Geneva Conventions for those whom US forces were detaining
in Iraq. The Coalition Provisional Authority (CPA) is not an entity
which is legally distinct from the United Kingdom and the United
States for the purposes of international law. The CPA as a body
is not a signatory to the Geneva Conventions and does not have
obligations and powers under those Conventions— the obligations
and powers under the Conventions are those of the UK and the US.
In some respects, those obligations and powers are exercised through
the vehicle of the CPA, for example in promulgating legislation.
But in relation to internment and detention, the detaining power
is not the CPA but the individual country exercising its powers
under article 78 of the Fourth Geneva Convention. This is clear
from the memorandum of understanding which was entered into between
the US, the UK and Australia before the start of the war and which
still governs the handling of internees by the three countries.
Detainees in Iraq and access to lawyers
The Committee also asked about the access to
lawyers for those interned in Iraq in accordance with the Fourth
Geneva Convention. As set out in Article 80 of the Convention,
internees retain their full civil capacity. This principle is
reflected in Article 113 which provides, inter alia, that the
Detaining Power shall provide all reasonable facilities for the
transmission of wills, powers of attorney, letters of authority,
or any other documents intended for internees or despatched by
them. Further, the Detaining Power shall facilitate the execution
and authentication in due legal form of such documents on behalf
of internees, in particular allowing them to consult a lawyer.
The UK allows access to legal advice when it is requested to do
so by an internee for such matters or for the purpose of challenging
the legal basis for their detention. The UK does not, however,
either provide or finance the obtaining of such advice.
Criminal jurisdiction applying to British citizens
in Iraq
The Committee asked what criminal jurisdiction
would apply should there be any evidence of a British citizen
committing a criminal offence in Iraq. Whenever our troops are
deployed overseas other than to fight a war, it is usual to negotiate
a Status of Forces Agreement with the host nation. This agreement
covers issues such as the exercise of military jurisdiction over
our troops in that territory and the allocation of jurisdiction
in respect of any crimes committed by the troops. Where the agreement
follows the provisions of the NATO Status of Forces Agreement
it usually provides that both the sending state and the host state
have criminal jurisdiction over military personnel but that the
primary jurisdiction is with the sending state in relation to
offences arising from conduct when the soldier concerned is on
duty. However, because of the special circumstances of the Coalition
forces in Iraq in the aftermath of the conflict, it was not possible
to negotiate a Status of Forces Agreement. The CPA therefore issued
Order No 17 which conferred immunity from the jurisdiction of
the Iraqi courts on coalition military personnel and also, in
certain circumstances, on non-Iraqi civilian personnel. The United
Kingdom's domestic law provides that soldiers and anyone else
subject to service law can be tried in military courts (courts
martial) for acts which they commit overseas if those acts would
constitute a criminal offence if committed in the UK. These military
courts are competent to try all criminal offences, including the
most serious criminal offences. So, as I indicated during the
oral evidence session, if a British soldier engages in conduct
which would amount to a criminal offence under English law, he
can be prosecuted for that offence in a military court sitting
as appropriate either in the United Kingdom or overseas. Where
the offence is one over which the UK civilian courts have extraterritorial
jurisdiction it may be appropriate for the case to be tried by
a civilian court rather than by a court martial. The position
is the same for any civilian who is accompanying UK forces and
who is subject to service law. In the case of UK civil servants
overseas, it should be noted that UK civilian courts have a wider
extra-territorial jurisdiction and may deal with any offence committed
abroad in the course of their duties if that offence would be
indictable if committed in England. So if a British civil servant
who was, for example, seconded from the UK Government to assist
with interrogating Iraqi internees, committed a serious criminal
act during the interrogation he would also be liable to prosecution
under English law. Where detainees for whom the UK is the detaining
power are held in US-run facilities, clearly US rather than UK
law would apply to the conduct of the soldiers.
Iraq Special Tribunal
Although not specifically requested, I thought
that the Committee might also appreciate further details on the
Iraq special tribunal. It is too early to say when the special
tribunal will be up and running. Ambassador Pierre Prosper, US
ambassador at large for war crimes, undertook a needs assessment
in January, working with Iraqis to identify the next steps for
implementation of the special tribunal. The objectives of this
assessment were to examine and make recommendations on: the location
and establishment of a secure court facility; creation of a victim
and witness assistance programme and protection for judges and
prosecutors; budget and administration; staffing of qualified
Iraqi and international personnel; training and mentoring programmes
to strengthen Iraqi capacity in investigations and prosecutions;
and any additional areas deemed relevant. The team addressed all
of these areas, and additionally made recommendations on a public
diplomacy and outreach programme and further development of Rules
of Procedure and Elements. The UK is now considering requests
for further assistance in these areas.
Hand-over arrangements for detainees
The Committee also asked whether the detainees
held by UK forces would be handed over to the Iraqi authorities
after the transition of power from the coalition provisional authority
to the governing council. The case of each internee is reviewed
regularly in order to determine whether they continue to pose
an imperative threat to security. As of 1 March there were 84
security internees held by UK forces. The right to hold them stems
from our position as Occupying Power. Under the terms of the transitional
administrative law the UK will no longer be Occupying Power from
30 June. If on 30 June we are detaining people who still pose
a threat to the multinational force, including UK forces, we will
want to make sure that they continue to be detained and are unable
to realise that threat. Until the political arrangements for the
transition of power are finalised, we are not able to say exactly
how this will be done.
Religious minorities in Iraq
The Committee asked what safeguards there were
for religious minorities in Iraq, including constitutional safeguards
for the freedom of religion. The transitional administrative law,
which was signed on 8 March, guarantees the rights of all individuals
to freedom of religious belief and practice. Although Islam is
the official religion of the State, and is to be considered a
source of legislation, it cannot contradict any of the rights
stipulated in Chapter 2 of the Law, which covers fundamental rights.
I hope that you have found clarification on
the points above useful. I look forward to receiving a copy of
the Committee's report into the FCO's Annual Report on Human Rights.
Bill Rammell
Parliamentary Under Secretary of State,
Foreign and Commonwealth Office
5 April 2004
Annex 1
Global Opportunities Fund (GOF)—an
overview
In April 2003, the FCO created the GOF to promote
action on global issues in areas of strategic importance to the
UK. The Committee may recall seeing the original GOF strategy
paper in April 2003; it is currently being revised in light of
the FCO Strategy and the new version will be sent to you shortly.
The FCO received £120 million (£20
million/£40 million/£60 million) for financial years
2003-04 to 2005-06 to fund the GOF. To avoid duplication and further
increase the impact of the fund the FCO decided to rationalise
some existing programme budgets. From 2003-04, the Human Rights
Project Fund (HRPF), Environment Project Fund (EPF) and the FCO's
Grant-In-Aid to the Westminster Foundation for Democracy (WFD)
were folded into the GOF making a grand total of £164.1 million
for financial years 2003-04 to 2005-06 (£34.7 million/£54.7
million/£74.7 million).
A number of inescapable pressures on the FCO
(payments to international subscriptions, to the FCO reserve,
a rise in UN subscriptions and demands on the FCO network due
to Iraq) have meant of deductions to the GOF leaving a budget
of £110.6 million for financial years 2003-04 to 2005-06
(£24.7 million/£29.7 milion/£56.2 million) for
programme work.
In 2003-04 this funding will support projects
through five new GOF programmes: Climate Change and Energy (£1.596
million), Counter-Terrorism (£3.192 million), Engaging with
the Islamic World (£1.5 million), Strengthening Relationships
with Emerging Markets (£1.596 million) and Re-uniting Europe
((£1.596 million) and existing commitments to the HRPF (£8.1
million), EPF (£3 million) and WFD (£4.1 million).
In 2004-05, the GOF will continue the above
work, launch a new sixth "Human Rights, Democratisation and
Good Governance" programme, and fund other programme work
in support of the FCO's strategic priorities (through contributions
to Drugs and Crime Fund and Directorate Programme Budgets).
The bar chart overleaf shows a breakdown of
funds.
Annex 1
Annex 2
FUNDING FOR HUMAN RIGHTS, GOOD GOVERNANCE
AND DEMOCRATISATION
| 2001-02 | 2002-03
| 2003-04 | 2004-05
| 2005-06 |
| | |
| | |
| HRPF | £6.6 million |
£7.4 million | £8.1 million
| £2.5 million | £0.5 million
|
| GOF HRDGG Programme | —
| — | — | £2 million
| £2 million+ |
Other GOFF
Programmes* | —
| — | £3 million |
£6 million | £12 million
|
| TOTAL** | £6.6 million |
£7.4 million | £11.1 million
| £10.5 million | £14.5 million
|
| |
| | | |
* Projects funded by the Engaging with the Islamic World,
Re-United Europe & Strengthening Relationships with Emerging
Markets.
The overall GOF budget for 2004-05 is £18.1 million
and 2005-06 is £47.3 million.
** Does not include project money spent on Human Rights,
Democratisation and Good Governance through the Directorate Programme
Budgets and the Global Prevention Pools.
MOD LEGAL ADVICE
Sir John Stanley was wrong to say that if a British serviceman
committed a serious criminal offence in Iraq that would not be
dealt with by a court martial. On the contrary, the local courts
would not have jurisdiction because of the CPA Order 17 immunity
and the UK civilian courts would only be able to deal with those
offences (by no means all of the serious offences) where those
courts have extra territorial jurisdiction. In fact therefore
the serviceman is most likely to be dealt with by court martial
under section 70 of the Army Act. Whether that trial takes place
locally or back in the UK will depend on a variety of factors
including whether the witnesses include local people. So it is
not right to say that in normal circumstances the accused would
be dealt with on return home.
With regard to Mr Rammell's statement that "in terms
of civilians, then there is a different legal route through this
country", the correct position is that there is scope for
prosecution before the UK civilian courts only where those courts
have special extra-territorial jurisdiction conferred on them.
This is the case for civil servants for indicatable offences under
section 31(1) of the Criminal Justice Act 1948. That provides
that any British subject employed in the service of the Crown
who commits, in a foreign country, when acting or purporting to
act in the course of his employment any offence which if committed
in England would be punishable on indictment, is guilty of an
offence under that section and is subject to the same punishment
as if the offence had been committed in England. Apart from that,
there is extraterritorial jurisdiction for UK courts over certain
offences, such as murder.
We should therefore make it clear that Mr Rammell was right
in what he said about armed forces but what he says about civilians
needs some amplification.
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