EXTRAORDINARY RENDITION
47. Over the past year, there has been considerable
speculation over whether, as part of its efforts in the 'war against
terrorism', the USA is making use of the practice of extraordinary
rendition.[70] This is
a procedure whereby criminal suspects are sent to other countries
for interrogation that may involve the use of torture by the recipient
state. Detainees have no access to lawyers and details of their
detention may not be passed to the relevant consulates. The alleged
destinations may include Egypt, Jordan, Morocco and Pakistan.
Accusations have also emerged that the USA has sent or rendered
terrorist suspects to a system of prisons (known to the CIA as
"black sites") across Eastern Europe, possibly in Poland
and Romania, and also in Asia. Although there is firm evidence
that flights have taken place, there is no firm evidence of the
transfer of individuals or the application of torture. Much of
the debate on this subject is based on journalism.
48. The US government has denied the use of torture
as part of the process of rendition. In response to a letter written
by the then Foreign Secretary on behalf of the United Kingdom
as President of the EU, US Secretary of State Condoleeza Rice
said on 5 December 2005:
Rendition is a vital tool in combating trans-national
terrorism. Its use is not unique to the United States, or to the
current administration
[However] the United States does not
permit, tolerate or condone torture under any circumstances.
- The United States has respectedand
will continue to respectthe sovereignty of other countries.
- The United States does not transport, and has
not transported, detainees from one country to another for the
purpose of interrogation under torture.
- The United States does not use the airspace or
the airports of any country for the purpose of transporting a
detainee to a country where he or she will be tortured.
- The United States has not transported anyone,
and will not transport anyone, to a country when we believe he
will be tortured. Where appropriate, the United States seeks assurances
that transferred people will not be tortured.[71]
49. These comments prompted discussion about differences
between the interpretations of what constitutes torture in the
USA and United Kingdom. We asked Jack Straw about this. He wrote
to us, saying:
First of all, it is important to note that the
US Detainee Treatment Act, enacted on 30 December 2005, provides
that no individual in the custody or under the physical control
of the US Government, regardless of nationality or physical location,
shall be subject to cruel, inhuman or degrading treatment of punishment
On the question of definitions, the United Kingdom understands
the term "torture" to have the meaning set out in Article
1 of the UN Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). Article 1 CAT defines
torture as "any act by which severe pain or suffering whether
physical or mental is intentionally inflicted...". It does
not, however, give specific examples of what constitutes torture.
The understanding of the definition of torture made by the US
on ratifying CAT specifies the meaning of "mental pain or
suffering" in more detail than Article 1 CAT. The UK made
no reservations or understandings on ratification and has not
adopted a formal definition of what constitutes mental pain or
suffering for the purposes of Article 1. Section 134 of the Criminal
Justice Act 1988 provides that a public official commits torture
if he intentionally inflicts severe pain or suffering on another
in the performance of his duties, and does not define "severe
pain or suffering".[72]
50. The campaign group Reprieve has outlined allegations
of British involvement in the rendition of Bisher al Rawi and
Jamil El-Banna, who were detained in the Gambia and then sent
to a prison in Kabul and Bagram airbase in Afghanistan for interrogation,
before their transfer to Guantánamo Bay. Commenting on
the case, Reprieve wrote:
"There is developing evidence of (1) British
governmental involvement in the men's seizure and rendition, (2)
British assurances that the men could safely go to the Gambia
to set up a mobile peanut-processing plant, (3) telegrams that
indicate direct British involvement in their seizure once they
arrived, (4) the identity of the CIA plane that was used to render
them, and (5) the failure to assist them despite the fact that
they worked to help British intelligence."[73]
In addition, Reprieve outlined the case of Binyam
Mohammed Al-Habashi, who underwent torture and interrogation in
Morocco after his detention in Pakistan; some information may
have come from British intelligence sources.[74]
We asked the former Foreign Secretary about the al-Habashi case,
but he refused to answer our questions, saying that he considered
the issue a matter for the Intelligence and Security Committee.[75]
51. On 15 June 2006, during a debate on the Committee's
Report on Human Rights, Minister for Trade and Human Rights Ian
McCartney commented on these cases: "In the cases of el-Banna
and el-Rawi, we did not request the detention, and we played no
role in their transfer to Afghanistan and Guantánamo. Benyam
Mohammed Al Habashi was interviewed once by a member of the security
services in Karachi in 2002, but the security services had no
role in his capture or transfer from Pakistan."[76]
52. The Foreign Affairs Committee has a long-standing
interest in the question of extraordinary rendition. The last
Report in this inquiry concluded: "If the Government believes
that extraordinary rendition is a valid tool in the war against
terrorism, it should say so openly and transparently so that it
may be held accountable."[77]
Our recent Human Rights Report also discussed the issue. We noted
that a range of investigations into extraordinary rendition and
black sites had been launched across Europe, including one by
the Council of Europe and at a judicial level in Germany, Italy
and Spain. In June 2006, the Council of Europe's Committee on
Legal Affairs and Human Rights released a draft report. This claimed
that 14 European states have colluded with the CIA in its pursuit
of extraordinary rendition and that there is evidence to support
suspicions that secret prisons are or were located in Poland and
Romania.[78] Washington
rejected the report, saying that it contained nothing new and
was full of allegations but "thin on facts".[79]
53. The Government has denied any role in the process
of extraordinary rendition, and said in its response to our last
report on the Foreign Policy Aspects of the War against Terrorism
that its "policy is not to deport or extradite any person
to another state where there are substantial grounds to believe
that the person will be subject to torture
The British Government
is not aware of the use of its territory or airspace for the purposes
of 'extraordinary rendition'."[80]
The then Foreign Secretary told the Committee on 24 October 2005
that its position in respect of extraordinary rendition:
has not changed. We are not aware of the use
of our territory or air space for the purpose of extraordinary
rendition. We have not received any requests or granted any permissions
for use of UK territory or air space for such purposes. It is
perfectly possible that there have been two hundred movements
of United States aircraft in and out of the United Kingdom and
I would have thought it was many more; but that is because we
have a number of US air force bases here, which, under the Visiting
Forces Act and other arrangements they are entitled to use under
certain conditions.[81]
54. Jack Straw did undertake to conduct research
to establish if the USA had made any requests for renditions through
British airspace, and on 12 December 2005 issued a written answer
stating that research by Government officials had failed to identify
any occasion since 11 September 2001 when the USA had requested
permission for a rendition from or through the United Kingdom.[82]
Both the British and US governments have categorically denied
directly to the Committee that the USA has used British airspace
or airports for the purposes of extraordinary rendition since
11 September 2001.
55. In March 2006 Alistair Darling, then Secretary
of State for Transport and Adam Ingram, Minister of State (Armed
Forces) at the Ministry of Defence admitted that six CIA planes
linked to rendition had passed through the United Kingdom.[83]
We asked Jack Straw about this on 17 March 2006, and he told us:
I have not got the answer in front of me from
Adam Ingram, but it did not add a scintilla of evidence in support
of the claim that there had been secret CIA flights coming through
here with prisoners on them about whom we knew nothing. Not a
scintilla
It does not follow for a second that because there
are flights here with CIA aeroplanes that on those aeroplanes,
in breach of undertakings given by successive American administrations,
there were people being rendered through UK air space or territory
without our agreement
if there had been people rendered in
this way, I think it is a fair bet that somebody would have spotted
this, somebody on the ground, or somebody would have told somebody.
No one has come forward, nobody at all.[84]
Nevertheless, the Government adhered to its position
in its response to our annual Report on Human Rights, stating
that it has not approved any renditions, that it has made clear
to the USA that renditions through British or Overseas Territory
airspace require its permission, and that it is co-operating fully
with the investigation by the Council of Europe.[85]
56. In December 2005 Jack Straw told us that allegations
in the media of mistreatment of detainees in Greece by the British
intelligence services were "in the realms of the fantastic."[86]
When subsequent press reports appeared to cast more light on these
allegations and threw doubt on the former Foreign Secretary's
comments, we wrote to him requesting fuller answers. His response
stated:
You have made a number of inaccurate assertions
about "what did or did not happen in the presence of British
officials in Greece" last year
I am not going to give
details of operations nor of contacts with liaison services, all
of which take place within authority provided by Parliament
You
make a serious unqualified further allegation that, "not
for the first time," your Committee "has been told,
at best, only part of the truth." Since you have been categorical
in this claim, please let me know the details of the occasions
when I have told your Committee "at best only part of the
truth. You also say that the Committee's questions on extraordinary
rendition over the last year "have not been taken seriously."
What justification do you have for saying this? It is completely
untrue. I have, as I always do with your Committee's and any other
Parliamentary colleagues' questions, gone to great lengths to
deal with the matter very seriously.[87]
The Chairman of the Committee responded:
You also ask me to justify the Committee's view
that its questions on rendition have not been taken seriously.
There is nothing new in this. You will recall that in a Report
at the end of the last Parliament, the Committee concluded that
"the Government has failed to deal with questions about extraordinary
rendition with the transparency and accountability required on
so serious an issue" and called on it to "end its policy
of obfuscation." The comment was justified at the time and
in the Committee's view it remains justified. This view has been
reinforced by the recent development which has seen the FCO providing
quite full answers to opposition party spokesmenfuller,
certainly, that those it has provided to the Committee. Welcome
though these fuller statements are, we fail to see why they could
not have been made in response to the Committee's questions. A
particular case in point is the admission to William Hague in
your letter of 6 February that an approach was made by the US
authorities in connection with the rendition of a detainee in
2004.[88]
57. This exchange of letters underlines the unwillingness
of the Government to engage with the Committee on this issue in
a transparent manner. Although the then Foreign Secretary issued
a statement on extraordinary rendition on 20 January 2006, this
was in response to a leaked document that appeared to demonstrate
the Government's determination to limit debate on rendition, not
the Committee's inquiries. In that statement, Jack Straw said
again that the United Kingdom had no knowledge of the transfer
of people through British airspace for the purposes of extraordinary
rendition, and that the FCO had completed a search for requests
from the USA.
58. We conclude that there has been a lot of speculation
about the possible use of rendition to countries where torture
can take place, so called "Black Sites" and the complicity
of the British Government, all of which would be very serious
matters, but that there has been no hard evidence of the truth
of any of these allegations. The British and US governments have
categorically denied that either UK airspace, or airports have
been used by the US government for rendition or extraordinary
rendition since 11 September 2001. We reiterate our strong view
that the Government must deal with extraordinary rendition in
a transparent manner with timely answers to questions from this
Committee. We conclude that it is regrettable that far more detailed
information has been given in parliamentary answers to opposition
party spokesmen than has been given in response to questions from
this Committee.
THE INTERNATIONAL RULES-BASED SYSTEM
59. Previous Reports in this inquiry have considered
in some detail international law in the context of the 'war against
terrorism'. Our predecessor Committee noted in July 2004 that
concern about the spread of WMD is putting pressure on the existing
framework of international law. "In particular, the limits
to timely warning of an imminent WMD strike have raised doubts
about the efficacy of classical interpretations of the doctrine
of self-defence, and some states have proposed changing the existing
legal framework in response."[89]
60. The Committee set out the three bases for the
use of force by states:
The United Nations Charter outlaws the use of
force with only two established exceptions: individual or collective
self-defence in response to an armed attack (Article 51), and
action authorised by the UN Security Council as a collective response
to a threat to the peace, breach of the peace or act of aggression
(Chapter VII). In addition, some have argued that there exists
a right to use force to protect against a massive violation of
fundamental human rights (humanitarian intervention).[90]
The Committee also set out comments by the Prime
Minister in March 2004 that have been interpreted by some to suggest
that he questions the adequacy of international law on the use
of force and hinting at his support for a reappraisal of anticipatory
self-defence and the existing order of international law.[91]
61. The Committee asked the Government about its
position towards reform of international law in this area. It
also looked forward with interest to the conclusions of the Panel
of eminent Persons examining the case for reform in the UN and
concluded that "a doctrine of humanitarian intervention appears
to be emerging, but that its application in the context of the
war against terrorism raises difficult questions of interpretation
and embodies significant risk." In its response to that Report,
the Government told the Committee: "The Government supports
the work of the Secretary-General's High Level Panel on Threats,
Challenges and Change. We hope that it will provide concrete recommendations
for improving the UN's response to the full range of threats to
international peace and security."[92]
In the area of humanitarian intervention, the Government told
us:
"there are occasions when it is right to
intervene militarily in response to large-scale humanitarian crises.
The Security Council has been increasingly willing to take this
view in particular situations
There have been a number of
attempts to establish international consensus on guidelines or
criteria to be used in deciding when military action is justified
The Government hopes that the High Level Panel established by
the Secretary-General will make recommendations in this area."
62. When he appeared before us as a witness in April
2006, Professor Philippe Sands QC said this about the existing
framework of international law:
[C]oming back to the fundamental question: are
the rules adequate to deal with the threats that we now face?
My view is that they are adequate, that if the State finds itself
in a situation in which a malign organisation, al Qaeda or some
other entity, is assembling weapons of mass destruction, it does
not have to wait until the Security Council has authorised the
use of force; if it is threatened by the actual use of force it
is entitled to use force in self-defence. So those rules remain
adequate to deal with a changed situation. So it is the positive
side of the rather amorphous nature of international law rules
that they are sufficiently ambiguous to evolve with time to take
into account new situations. They are not set in stone.[93]
At the same time, Professor Sands cautioned against
unilateral efforts to alter the international legal framework:
"[I]n a complex globalising world we have an interest in
a rules-based system setting forth minimum standards of behaviour.
If you start unilaterally tinkering with the rules and getting
rid of the ones that you do not like others will do the same thing
in relation to the rules that they do not like."[94]
63. On the question of humanitarian intervention,
Professor Sands told us about the limited reforms endorsed by
the UN General Summit in September 2005. These reforms did not
go as far as the recommendations of the High Level Panel:
[U]ltimately the changes which were adopted were
regrettably very limited and I think insufficient to apply the
changes that the Secretary General's high level panel required,
particularly, for example, in relation to the question of a state's
responsibility to protect. What do you do when a massive and
fundamental violation of human rights is taking place in another
country, do you stand by and do nothing at all? The high level
panel came up with reasonably specific rules to try to move the
UN rules along a little bit and State said, "No, we are not
having that, we are basically satisfied with the rules as they
are."[95]
64. On the subject of humanitarian intervention,
the UN Summit's outcome document says:
Each individual State has the responsibility
to protect its populations from genocide, war crimes, ethnic cleansing
and crimes against humanity. This responsibility entails the prevention
of such crimes, including their incitement, through appropriate
and necessary means. We accept that responsibility and will act
in accordance with it. The international community should, as
appropriate, encourage and help States to exercise this responsibility
and support the United Nations in establishing an early warning
capability.
The international community, through the United
Nations, also has the responsibility to use appropriate diplomatic,
humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.
In this context, we are prepared to take collective action, in
a timely and decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII, on a case-by-case
basis and in cooperation with relevant regional organizations
as appropriate, should peaceful means be inadequate and national
authorities are manifestly failing to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against
humanity. We stress the need for the General Assembly to continue
consideration of the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity
and its implications, bearing in mind the principles of the Charter
and international law. We also intend to commit ourselves, as
necessary and appropriate, to helping States build capacity to
protect their populations from genocide, war crimes, ethnic cleansing
and crimes against humanity and to assisting those which are under
stress before crises and conflicts break out.[96]
65. Professor Sands wrote to us about this. Commenting
on the various reform proposals, he told us that they
"indicate a move towards a right to use
military force to protect fundamental human rights. However, the
conditions under which such force could be used, if at all, remain
unclear, and a number of important states remain opposed to this
development. In my view the recent conflict in Iraq has tended
to undermine developments in this direction, since it has supported
doubters who are concerned about motive and possible abuse."[97]
66. We conclude that despite the reforms adopted
by the 2005 UN General Summit, there remain uncertainties over
the international legal framework for humanitarian intervention.
We recommend that the Government set out in its response to this
Report what steps it is taking to establish a consensus on whether
and when intervention on humanitarian grounds is permissible.
2 Remarks by President Bush, National Endowment for
Democracy, Washington D.C., 6 October 2005 Back
3
Press Gaggle by Scott McClellan, 23 April 2006 Back
4
"Zarqawi killed in Iraq air raid", BBC News Online,
8 June 2006, news.bbc.co.uk Back
5
Ev 1 Back
6
"US 'intercepts al-Qaeda letter''', BBC News Online,
7 October 2005, news.bbc.co.uk Back
7
Ev 2 Back
8
Q 8 [Professor Wilkinson] Back
9
Q 56 Back
10
Q 1 [Mr Taylor] Back
11
Foreign Affairs Committee, Sixth Report of Session 2004-05, Foreign
Policy Aspects of the War against Terrorism, HC 36-I Back
12
Home Office, Report of the Official Account of the Bombings
in London on 7th July 2005, 11 May 2006, HC 1087. This report
found that: "55. There is as yet no firm evidence to corroborate
this claim or the nature of Al Qaida support, if there was any.
But, the target and mode of attack of the 7 July bombings are
typical of Al Qaida and those inspired by its ideologies." Back
13
Intelligence and Security Committee, Report into the London
Terrorist Attacks on 7 July 2005, Cm 6785, May 2006, para
37 Back
14
Ibid, para 40 Back
15
Ibid, para 38 Back
16
"Toll climbs in Egyptian attacks", BBC News Online,
23 July 2005, news.bbc.co.uk Back
17
"Explosions at Egyptian Red Sea resort kill at least 23",
Financial Times, 25 April 2006 Back
18
"Bali bombs death toll rises to 23", BBC News Online,
8 October 2005, news.bbc.co.uk Back
19
"'Al-Qaeda' claims Jordan attacks", BBC News Online,
10 November 2005, news.bbc.co.uk Back
20
Q 1 [Mr Taylor] Back
21
Q 1 [Professor Wilkinson] and Q 13 [Mr Taylor] Back
22
Ev 1 Back
23
Q 14 [Mr Taylor] Back
24
Q 65 Back
25
Q 14 [Mr Taylor] Back
26
Q 17 [Mr Taylor] Back
27
Ev 2 Back
28
"US 'intercepts al-Qaeda letter''', BBC News Online,
7 October 2005, news.bbc.co.uk Back
29
Qq 2, 8 [Professor Wilkinson] Back
30
Ev 3 Back
31
The New Al Qaeda, Part One Back
32
Ev 1 Back
33
Q 1 [Mr Taylor] Back
34
"'Bin Laden' accuses West-excerpts", BBC News Online,
23 April 2006, news.bbc.co.uk Back
35
Q 56 Back
36
Q 57 Back
37
Q 58 Back
38
Q 57 Back
39
Q 58 Back
40
"Blair vows to boost defence ties with Jakarta", Financial
Times, 31 March 2006 Back
41
The British Council, British Muslims: Media Guide, 2006 Back
42
Q 15 [Professor Wilkinson] Back
43
Q 15 [Mr Taylor] Back
44
Ev 4 Back
45
"Pentagon plan to free 140 from Guantanamo", The
Guardian, 26 April 2006 Back
46
Amnesty International, Guantánamo Bay: A Human Rights
Scandal, available at: web.amnesty.org Back
47
Foreign Affairs Committee, First Report of Session 2005-05, Human
Rights Annual Report 2005, HC 574, Ev 31-32 Back
48
HC (2005-06) 574, Ev 32 Back
49
Ibid Back
50
Q 314 Back
51
Remarks by John Bellinger, at Chatham House, 9 February 2006,
available at: www.chathamhouse.org.uk Back
52
Remarks with British Foreign Secretary Jack Straw at Blackburn
Town Hall, 1 April 2006 Back
53
HC (2005-06) 574, Ev 27 Back
54
HC (2005-06) 574, Q 6 Back
55
Foreign & Commonwealth Office, Sixth Report of the Foreign
Affairs Committee; Session 2004-05; Foreign Policy Aspects of
the War Against Terrorism; Response of the Secretary of
State for Foreign and Commonwealth Affairs, Cm 6590, June
2005 Back
56
HC (2005-06) 574, para 38 Back
57
Ibid, para 39 Back
58
United Nations Economic and Social Council, Commission on Human
Rights, Situation of detainees at Guantánamo Bay,
15 February 2006 Back
59
Situation of Detainees at Guantánamo Bay, Joint Report
of the Five Holders of Mandates of Special Procedures of the Commission
on Human Rights, E/CN.4/2006/120, 15 February 2006, para 3. Annex:
Letter dated 31 January 2006 addressed to the Office of the High
Commissioner for Human Rights, by the Permanent Representative
of the United States of America to the United Nations and Other
International Organisations in Geneva. Back
60
"Annan backs UN Guantánamo demand", BBC News
Online, 17 February 2006, news.bbc.co.uk Back
61
"Pressure on Blair over Guantánamo", BBC News
Online, 17 February 2006, news.bbc.co.uk Back
62
"Pressure on Blair over Guantánamo", BBC News
Online, 17 February 2006, news.bbc.co.uk; see also HC Deb,
17 May 2006, col 993 Back
63
Q 237 Back
64
Q 235 Back
65
Q 236 Back
66
Foreign & Commonwealth Office, First Report from the Foreign
Affairs Committee; Session 2005-06; Annual Report on Human Rights
2005; Response of the Secretary of State for Foreign and Commonwealth
Affairs, Cm 6774, May 2006 Back
67
For the full text of Lord Goldsmith's speech, see: news.bbc.co.uk Back
68
Ibid Back
69
HC deb, 15 June 2006, cols 353-4 WH Back
70
'Rendition' is the practice of transferring detainees to other
countries; 'extraordinary rendition' is the practice of transferring
detainees to countries where torture may be used in interrogation. Back
71
Remarks by US Secretary of State Condoleeza Rice, 5 December 2005 Back
72
Ev 145 Back
73
Ev 151 Back
74
Ev 156 Back
75
Ev 145 Back
76
HC Deb 15 June 2006, col 352WH Back
77
HC (2004-05) 36-I, para 98 Back
78
Committee on Legal Affairs and Human Rights, Alleged secret
detentions and unlawful inter-state transfers involving Council
of Europe member states, Draft Report, 7 June 2006 Back
79
"Secret CIA jail claims rejected", BBC News Online,
7 June 2006, news.bbc.co.uk Back
80
Foreign & Commonwealth Office, Sixth Report of the Foreign
Affairs Committee; Session 2004-05; Foreign Policy Aspects of
the War Against Terrorism; Response of the Secretary of
State for Foreign and Commonwealth Affairs, Cm 6590, June
2005 Back
81
Q 105 Back
82
HC Deb, 12 December 2005, col 1643W Back
83
"Darling admits 73 visits by US rendition planes", The
Herald, 18 March 2006 Back
84
Q 233 Back
85
Foreign & Commonwealth Office, First Report from the Foreign
Affairs Committee; Session 2005-06; Annual Report on Human Rights
2005; Response of the Secretary of State for Foreign and Commonwealth
Affairs, Cm 6774, May 2006 Back
86
HC (2005-06) 574, para 49 Back
87
HC (2005-06) 574, Ev 75 Back
88
HC (2005-06) 574, Ev 75-76 Back
89
HC (2003-04) 441-I, para 400 Back
90
Ibid, para 406 Back
91
Ibid, paras 402-433 Back
92
Foreign & Commonwealth Office, Seventh Report from the
Foreign Affairs Committee; Session 2003-04; Foreign Policy Aspects
of the War against Terrorism; Response of the Secretary of State
for Foreign and Commonwealth Affairs, Cm 6340, September 2004 Back
93
Q 310 Back
94
Q 301 Back
95
Q 309 Back
96
"2005 World Summit Outcome", General Assembly Sixtieth
Session Agenda items 46 and 120, A/RES/60/1, 24 October 2005 Back
97
Ev 100 Back