Select Committee on Foreign Affairs Fourth Report

4  The war against terrorism

67. The war against terrorism continued unabated in 2004, brought into sharp relief by the bombings in Madrid in March and the horrific events in Beslan in September. We will consider some of the issues at greater length in our forthcoming Report on the Foreign Policy Aspects of the War against Terrorism. On 10 March, the Intelligence and Security Committee published a Report into The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantánamo Bay and Iraq, which also raises important questions in this area.[84]

68. The imperative of prosecuting terrorist networks and protecting society against terrorist outrages raises difficult questions for the defenders of human rights. In his foreword to the Annual Report, the Foreign Secretary explicitly recognises the tension between the protection of liberties and freedoms and the need to prevent terrorist atrocities:

The threat of terrorism confronts democratic, properly-functioning states with a challenge: to fight those who recognise none of the values for which we stand, while remaining true to those values.[85]

69. Amnesty and Human Rights Watch both criticised in evidence the way in which the war against terrorism has been waged, arguing that those "values for which we stand" have been violated and disregarded. Whereas the Annual Report states that "respecting human rights and successfully combating terrorism are mutually reinforcing", Amnesty is of the view that "the drive to counter-terrorism at home and abroad is eroding and, in some cases removing, the human rights of individuals".[86] And whereas the Annual Report warns that "the abuse of human rights risks creating new reservoirs of discontent which can nurture terrorism itself", Human Rights Watch told us that "serious abuses and trampling of due process by …the United States…have helped create such 'reservoirs of discontent'".[87]

70. The main concerns of Amnesty and Human Rights Watch relate to the behaviour of the United States, and the UK's complicity as a key strategic ally; and the actions taken by the UK at home to strengthen the capacity to prevent terrorism and prosecute its perpetrators. The latter area is a matter primarily for the Home Office, our sister Select Committee on Home Affairs and the Joint Committee on Human Rights, but the Government's policy towards the USA is very much our concern.

Guantánamo Bay

71. We have commented on the camps at Guantánamo Bay in our Report on the Annual Human Rights Report 2003 and in our series of Reports on Foreign Policy Aspects of the War against Terrorism. The United States continues to hold over 500 people in the camp of 42 different nationalities, although the last British detainees were returned to this country in January, to be released without charge by police.[88] Administration officials told the Washington Post at the beginning of January that plans were being developed to hold detainees without trial over the long-term and possibly for life.[89]

72. Over recent months further concerns have emerged regarding the treatment of detainees. In December, a leaked report from the International Committee of the Red Cross was reported to have described US interrogation methods at the camp as "tantamount to torture" and in January, under the American Freedom of Information Act, hundreds of internal documents and memos were released, which indicate systematic abuse of detainees.[90] An anonymous FBI agent wrote in one of the papers released:

On a couple of occasions I entered interview rooms to find a detainee chained hand and foot in a foetal position to the floor, with no chair, food or water…Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.[91]

73. The Annual Report registers the "concern in civil society, Parliament, the media and the legal profession" in the UK over the continued detentions although expressing concerns of the Government in cautious language. The Report focuses on the position of the British detainees, of whom four remained in the camp when it was published. The Report criticises the proposed military commissions by which detainees are to be tried, stating that they "would not provide sufficient guarantees of a fair trial according to international standards", and states that the welfare of the British detainees has been a priority for the Government "from the outset". There were more welfare visits to the camp from British officials than from any other government, and the detention conditions were improved following the raising of welfare concerns by the Government at various levels.[92]

74. In their recent Report, the Intelligence and Security Committee noted that the FCO received assurances in March 2002 from the US State Department that detainees were being treated humanely, and that "the Foreign Secretary was … satisfied with the US authorities' assurances".[93] British intelligence personnel made several visits to the camp and after the last visit, in February 2004, the Security Service reported that the mental health of detainees was deteriorating due to the conditions under which they were being kept. These concerns were raised at a senior level with the US, by the Foreign Secretary, Home Secretary and Sir Nigel Sheinwald, the Prime Minister's Foreign Policy Adviser.[94]

75. Amnesty and Human Rights Watch made strong criticisms of the Government and of the Annual Report for its approach to the issues of Guantánamo Bay. Amnesty called the detentions a "shocking outrage" which amounted to "cruel, inhuman or degrading treatment" and Human Rights Watch referred to the "severe trampling of process" by the US.[95] Both groups questioned what Human Rights Watch called the "quite extraordinary", and seemingly exclusive, focus of the Government on the position of UK nationals detained in the camp, regardless of the more general concern for all detainees. Human Rights Watch called this an "absolutely fundamental misunderstanding" of the issues raised by the entire regime at Guantánamo Bay, and said that for the Government to fail to understand this was "enormously worrying".[96] Both groups expressed regret that the Government has not seen fit to make stronger criticism of the US administration over the camps. In our view, such criticism fails to take due account of the fact that the Government had particular consular responsibilities towards British citizens and that it was right to focus at first on their welfare.

76. Amnesty also raised the question of the detainees who are British residents but not British nationals, saying that the Government's diplomatic efforts had not been extended to those detainees.[97] In November 2004, in answer to a Parliamentary Question in the House of Lords, Baroness Symons said that

The British Government are not in a position to provide consular or diplomatic assistance to those detainees in Guantanamo Bay who are not British nationals, including those who hold refugee status and are, or were, resident in the United Kingdom.[98]

In December, Foreign and Commonwealth Office Minister Chris Mullin MP stated that "We are aware of five former British residents also in detention [in Guantánamo Bay] but the Government is not in a position to provide consular or diplomatic assistance to them and I therefore cannot comment on their situation".[99] This refusal by Ministers even to comment on the situation of former residents of the UK detained in Cuba has been the subject of considerable criticism.

77. Bill Rammell did not accept these criticisms when we pressed him in evidence. He referred to the horrific events of 11 September 2001, saying that "the United States has been absolutely right to take the greatest of care with terrorist suspects" and that information obtained from detainees had "helped to protect all of us from potential further terrorist attack". Nonetheless, he stated that the Government's position had always been that the detainees should be tried according to international standards or released; he was "genuinely not aware" of any plans the US government might have to hold detainees long-term, as reported in the press. The Government had, he told us, concentrated on the position of the British detainees in its lobbying of the US Administration as it was there that the greatest pressure could be brought to bear.[100]

78. We find that the Government's position on the detentions at Guantánamo Bay does not sit easily with its pledge to "respect, and urge others to respect, those human rights laid down in the International Covenant on Civil and Political Rights that can never be compromised, even in states of emergency".[101] Nor is it in line with the Annual Report's statements that "there is no excuse for the deliberate mistreatment or neglect of prisoners" and that "a government itself is bound by law and that the arbitrary exercise of power not based on law is without authority".[102] Finally, the approach appears to conflict with the Government's striking claim in the introduction to the Annual Report to "speak loudly and clearly on the international stage" against abuses.[103]

79. We conclude that, now that the British nationals have been released from detention at Guantánamo Bay, the Government need no longer keep its diplomacy quiet in the interests of increasing leverage over individual cases. We recommend that the Government make strong public representations to the US administration about the lack of due process and oppressive conditions in Guantánamo Bay and other detention facilities controlled by the US in foreign countries. We further recommend that, during the UK Presidency of the European Union, the Government raise the situation at these facilities at the UN Commission for Human Rights.

Treatment of detainees by US personnel

80. The behaviour of United States personnel has also been called into question following the appalling events at Abu Ghraib prison in Iraq and the release, in January, of documentation of complaints from Iraqi prisoners held in other detention facilities by the US.[104] Charles Graner, the ringleader of the attacks at Abu Ghraib, was sentenced to 10 years imprisonment in January and further trials, against other servicemen involved in the abuses, are pending. It is not yet clear whether any officers in positions of responsibility will be prosecuted. The Annual Report assures its readers that "allegations of serious abuse at Abu Ghraib prison and elsewhere have been or are being investigated and those responsible have been or will be held to account".[105]

81. The Annual Report refers briefly but in no uncertain terms to the abuses at Abu Ghraib, calling them "shocking" and "shameful" and quoting the Foreign Secretary's statement to the House of Commons of 11 May 2004, in which he said

These images, and the evidence that they portray, are a shame on all of us. They are utterly shameful, disgusting and disgraceful.[106]

82. Notwithstanding this very clear message, Amnesty and Human Rights Watch criticised to us the Government's position both in the Report and outside it, more for what has not, than for what has, been said. Amnesty stated that the Government has demonstrated a "marked reluctance to question or criticise the conduct of US forces", treating allegations of abuse as a matter for the US government rather than a matter for international opprobrium. The Annual Report does not make clear whether or not the UK made representations to the US administration over the events at Abu Ghraib prison. [107]

83. In February, documents released by the American Civil Liberties Union described the destruction, by the US Army, of photographs of US soldiers posing with hooded and bound detainees during mock executions, in facilities in Afghanistan.[108] Human Rights Watch, in evidence to us, drew parallels between events at Abu Ghraib and the behaviour of US troops elsewhere, saying the abuses at Abu Ghraib prison "did not take place in isolation"; American troops in Afghanistan too have an "exceptionally poor record of abuse of detainees and use of excessive force".[109] Human Rights Watch also criticised both the US and UK governments for failing to confront what it judges to be a recurring motif in the actions of US troops. In oral evidence, Steve Crawshaw told us:

The kind of abuses we saw at Abu Ghraib were clearly not just bad apples. It was absolutely part of a pattern of wishing to push boundaries, of thinking of torture as being a useful tool to apply in the war on terror.[110]

84. Human Rights Watch told us that a "permissive culture of torture…has been allowed to take root amongst policy-makers in Washington".[111] At the beginning of January, it was reported that the US administration had revised its guidance to troops to prohibit the infliction of "severe pain" on suspects under interrogation, overriding previous guidance which stated that mistreatment amounted to torture only "if it produced severe pain equivalent to that associated with organ failure or death".[112] Other documents released by the Justice Department under the Freedom of Information Act show that the administration received and for a time accepted advice that there existed legal authority for extremely harsh interrogation methods and even torture.[113]

85. In its report, The Road to Abu Ghraib, Human Rights Watch stated that, following the events of 11 September 2001, the US administration "effectively sought to re-write the Geneva Conventions of 1949 to eviscerate many of their most important protections", "began to employ coercive methods designed to 'soften up' detainees for interrogation" and "took at best a 'see no evil, hear no evil' approach to all reports of detainee mistreatment".[114] In evidence to us, Human Rights Watch criticised the "very little willingness by the US administration and an extreme unwillingness by the British government to confront" the pattern of events. Human Rights Watch even went so far as to state in evidence that

If a totalitarian government were to carry out such abuses, the UK government would not hesitate to speak out. It is regrettable if the British government feels constrained to remain silent because the abusive government is a political ally.[115]

86. When we questioned Bill Rammell on this subject, he told us that, while human rights abuses could occur in any country, the United States—and the UK—had demonstrated its institutional rejection of such behaviour, through the investigations made into the alleged crimes and the public condemnations made by the Government.[116]

87. We conclude that United States personnel appear to have committed grave violations of human rights of persons held in detention in various facilities in Iraq, Guantánamo Bay and Afghanistan. We recommend that the Government make it clear to the United States administration, both in public and in private, that such treatment of detainees is unacceptable.

88. The recent Report of the Intelligence and Security Committee, while noting that its remit does not extend to the behaviour of US personnel, made some criticism of the way in which UK concerns about US treatment of detainees were raised with the US authorities. The Committee concluded:

We have reported that on a number of occasions when UK officials informed the US authorities of their concerns, these were not fully followed up by the UK. All such reports should be followed up by the UK authorities and, so far as it is within their power, fully investigated.[117]

89. The Committee also raised the problem that the US was the detaining authority in Guantánamo Bay, in most facilities in Afghanistan and in some of the facilities in Iraq. British intelligence personnel, who had been invited by the US to observe and conduct interviews of detainees, were hampered by the fact that US authorities did not (except during January to March 2004 in Abu Ghraib prison) share with UK personnel the interrogation techniques they considered acceptable. The Committee recommended that

the UK authorities should seek agreement with allies on the methods and standards for the detention, interviewing or interrogation of people detained in future operations.[118]

We agree with the recommendation of the ISC.

Treatment of detainees by British personnel

90. Allegations of misconduct have also been made against British troops in Iraq. The Annual Report states that "there have been no allegations of systematic mistreatment of persons held by the UK although there have been isolated reports".[119] On 23 February, two British soldiers were found guilty of involvement in abuse of Iraqi civilians, which only came to light when photographs which the men had taken of the incident were discovered. They and a third soldier who pleaded guilty were later sentenced to terms of up to two years and were dismissed from the Army.[120]

91. Amnesty told us that it was "concerned that investigations into these allegations lack sufficient independence or transparency".[121] Bill Rammell said in evidence that "among 65,000 troops that have been engaged in Iraq there were ultimately about seven cases that have gone through to prosecution" and assured us that investigatory procedures were strictly applied: "as soon as there is any allegation of abuse there is a thorough investigation…I do not think anybody has made the argument that we have not dealt with that seriously".[122] However, the guilty verdicts against the soldiers who committed the abuses at Camp Breadbasket have provoked fresh claims of abuse, and no-one has yet been charged with involvement in the most serious breaches, in which Iraqi men were photographed while being forced to engage in simulated sexual acts. There were also claims in the course of the courts martial against those convicted that officers' instructions on the treatment of detainees had been framed in such a way as to allow troops to believe that they were being permitted, or even encouraged, to abuse detainees, yet no officer has yet been charged in connection with these offences.

92. The Report of the Intelligence and Security Committee updated its ongoing examination of the behaviour of British intelligence personnel in conducting or observing interviews of detainees in Afghanistan, Guantánamo Bay and Iraq. Over 2,000 such interviews were conducted and actual or potential breaches of UK policy or international Conventions were reported by UK personnel in 15 cases. The Committee "have been told there were no other occasions". The Committee concluded that SIS and Security Service personnel deployed to Afghanistan, Guantánamo Bay and Iraq were not sufficiently trained in the Geneva Conventions, nor were they aware which interrogation techniques the UK had specifically banned. In two cases this led to a breach of UK policy, when detainees were hooded during the interviews. In another case specific concerns about the handling of a detainee by US personnel, observed by an SIS officer, were not raised with the senior US official, nor were they brought to the attention of the Foreign Secretary. The Committee concluded that, other than these cases, they had found no evidence of abuse by UK intelligence personnel, but recommended improvements to training and to the procedures for raising concerns with the US.

93. We conclude that some British personnel have committed grave violations of human rights of persons held in detention facilities in Iraq, which are unacceptable. We recommend that all further allegations of mistreatment of detainees by British troops be investigated thoroughly and transparently. We further recommend that the Government review its training of and guidance to officers, NCOs and other ranks on the treatment of detainees to ensure that there is no ambiguity on what is permissible.

Torture

94. The Annual Report states:

Torture is abhorrent and illegal and the UK is opposed to the use of torture under all circumstances. Torture…is prohibited, both under international humanitarian law and under international human rights law. The prohibition of torture in international law is widely considered…a rule which is binding on the international community of states as a whole, regardless of their consent, and from which no derogation is permissible.[123]

95. The past few months have witnessed a debate in the UK which Amnesty has called a "creeping acceptance of the practice of torture".[124] On 11 August the Court of Appeal ruled two to one in the cases of A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou and the Secretary of State for the Home Department that evidence obtained under torture would be deemed admissible in court unless it had been directly procured by UK agents or if UK agents had connived in its procurement. At the end of November, in reaction to this case, the UN Committee against Torture recommended that the UK Government should make a formal undertaking that it will not rely on, or present, evidence obtained through torture in any proceedings, stating that "article 15 of the Convention prohibits the use of evidence gained by torture wherever and by whomever obtained". [125]

96. Amnesty described this debate as deeply regrettable and regressive, risking undoing the years of efforts by the Foreign and Commonwealth Office to eradicate the use of torture around the world, and stated it was "appalled" by the Government's stance.[126] Human Rights Watch pointed out that the Court of Appeal judgement stated that the UN Convention against Torture was not part of domestic law, setting a dangerous precedent and appearing to contradict the Government's recognition in the Annual Report that "no derogation is permissible" from the international prohibition of torture.[127]

97. Human Rights Watch recognised that there might be compelling arguments to act upon information extracted under torture, if it gave, for example, details of an imminent terrorist attack and therefore helped prevent the deaths of innocent people. However, in their view, to accept information on this basis would be to begin the descent into an "immoral, illegal and destabilising" culture of permissiveness.[128] Amnesty and Human Rights Watch concurred in warning that the effect of the Court of Appeal ruling, if transmuted into government policy, would be to encourage, by giving the impression of condoning, torture by repressive governments around the world. Human Rights Watch stated that:

Once you have sent the message that you are keeping the door open [to information obtained under torture] you have a relationship with the torturers' regime and that is more widely known…The signal has been sent saying, 'Yes, please. Give us anything that you have and we do not particularly care how that information is reached'.

98. Sending such a signal "undoubtedly makes us less, not more, safe".[129] Moreover, even if the moral question is put to one side, information extracted in this manner is unreliable, as "people [are] ready to tell complete untruths, incriminating themselves, when they were completely uninvolved".[130]

99. We requested further information on this point from the Foreign Secretary and Bill Rammell, as well as following up the line of inquiry with Mr Rammell in oral evidence. Both reiterated the Government's abhorrence of torture, and Bill Rammell stated that

We oppose the use of torture ourselves. We would never advocate anybody else using torture and to my knowledge we have not knowingly received intelligence that we have known has been gained under torture.[131]

100. However, when pressed on this latter point, neither the Foreign Secretary nor Mr Rammell was forthcoming. In correspondence, when asked to respond specifically to the question of whether the UK received and acted upon information extracted under torture by third parties, both Mr Straw and Mr Rammell successively failed to answer the question, instead stating that

The UK intelligence and security agencies evaluate carefully the intelligence they receive against a range of factors; any concerns about the source of the intelligence or the means by which it may have been obtained would be taken into account.[132]

Written Parliamentary Questions asked by John Bercow MP and Greg Pope MP have elicited similar answers, couched in identical language.[133]

101. The Foreign Secretary was more forthcoming in giving evidence to the Intelligence and Security Committee, in which he said that

There are certainly circumstances where we may get intelligence from a liaison partner where we know…that their practices are well below the line. But you never get intelligence which says 'here is intelligence and by the way we conducted this under torture'.

The Foreign Secretary also told the Intelligence and Security Committee that

it does not follow that if it is extracted under torture, it is automatically untrue. But there is a much higher probability of it being embellished.

102. In relation to the moral dilemma of accepting evidence which, although extracted under torture, may save lives, the Foreign Secretary said that:

If you do get a bit of information which seems to be completely credible, which may have been extracted through unacceptable practices, do you ignore it? And my answer to that is, the moment at which it is put before you, you have to make an assessment about its credibility. Because…[what] if we had been told through liaison partners that September 11^th was going to happen…you cannot ignore it if the price of ignoring it is 3,000 people dead.[134]

103. In recent months, press reports have alleged that, since 11 September 2001, US agents have systematically kidnapped suspected terrorists and sent them to countries in which they have suffered torture, for the purpose of extracting intelligence, a practice known as 'extraordinary rendition'.[135] We will discuss extraordinary rendition in our forthcoming Report into Foreign Policy Aspects of the War Against Terrorism.

104. We conclude that the arguments for evaluating information which purports to give details of, for example, an impending terrorist attack, whatever its provenance, are compelling. We further conclude, however, that to operate a general policy of use of information extracted under torture would be to condone and even to encourage torture by repressive states.

105. We find it surprising and unsettling that the Government has twice failed to answer our specific question on whether or not the UK receives or acts upon information extracted under torture by a third country. We recommend that the Government, in its response to this Report, give a clear answer to the question, without repeating information already received twice by this Committee.

106. We recommend that the Government set out, in its response to this Report, a full and clear explanation of how its policy on the use of evidence gained under torture is consistent with the United Kingdom's international commitments as set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states, at Article 15, that "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made".

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84   Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, Cm 6469, March 2005 Back

85   Human Rights Annual Report 2004, p 3 Back

86   Ibid., p 13; Ev 1 Back

87   Human Rights Annual Report 2004, p 13; Ev 25 Back

88   Ev 4; HC Deb, 11 January 2005, col 173 Back

89   "Long-Term Plan Sought For Terror Suspects", Washington Post, 2 January 2005, p A01 Back

90   "'Near-torture' at Guantanamo Bay", The Guardian, 1 December 2004, p 16 Back

91   "Guantanamo Briton 'in handcuff torture'", Observer, 2 January 2005, p 4 Back

92   Human Rights Annual Report 2004, p 18 Back

93   Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, para 61 Back

94   Ibid., paras 67--8 Back

95   Q 5, Ev 26 Back

96   Q 5 Back

97   Ev 4 Back

98   HL Deb, 8 November 2004, col 53WA Back

99   HC Deb, 6 December 2004, col 400W Back

100   Q 76, 78-9 Back

101   Human Rights Annual Report 2004, pp 13-14 Back

102   Ibid., p 180, p 176 Back

103   Ibid., p 15 Back

104   "The Conflict In Iraq; Pentagon Files Reveal More Allegations of Abuse in Iraq", Los Angeles Times, 25 January 2005, p 1 Back

105   Human Rights Annual Report 2004, p 18 Back

106   Ibid., p 14, 21 Back

107   Ev 11 Back

108   "Afghan Photos Sparked Inquiry", Los Angeles Times, 18 February 2005, p 1 Back

109   Ev 26 Back

110   Q 8 Back

111   Ev 26 Back

112   "Washington makes U-turn on what is meant by 'torture'", Sunday Telegraph, 2 January 2005, p 28 Back

113   "Gonzales defends policy on detainees", Financial Times, 7 January 2005, p 8 Back

114   The Road to Abu Ghraib, Human Rights Watch, June 2004, available at http://www.hrw.org/ Back

115   Ev 26 Back

116   Q 84 Back

117   Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, para 125 Back

118   Ibid., para 131 Back

119   Human Rights Annual Report 2004, p 21 Back

120   "Judge tells Iraqi abuse trial to ignore Blair", Daily Telegraph, 23 February 2005, p 8, "Three Iraqi abuse soldiers are jailed and kicked out of Army", Daily Telegraph, 26 February 2005, p 2 Back

121   Ev 11 Back

122   Q 84 Back

123   Human Rights Annual Report 2004, p 182 Back

124   Ev 4 Back

125   UN Committee against Torture, Conclusions and recommendations, Thirty-third session, 15-26 November 2004  Back

126   Q 11, Ev 4 Back

127   Q 12 Back

128   Q 14 Back

129   Ibid. Back

130   Q 15 Back

131   Q 80 Back

132   Ev 74, 76 Back

133   HC Deb, 11 January 2005, col 413W; 2 February 2005, col 940W; 10 February2005, col 1712W Back

134   Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, para 33 Back

135   "How Britain Helps The Cia Run Secret Torture Flights", Independent, 10 February 2005, pp 8-9 and "This UK Diplomat Says Britain Is Part Of A Worldwide Torture Plot", Independent on Sunday, 20 February 2005, p 20 Back

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Prepared 26 March 2005