Select Committee on Foreign Affairs Minutes of Evidence


Examination of Witnesses (Questions 288-299)

PROFESSOR PHILIPPE SANDS QC

19 APRIL 2006

  Q288 Chairman: Good afternoon everybody. Professor Sands, welcome. We have one hour so my colleagues will have to be very disciplined this afternoon. We will begin by referring to your important book, which you kindly sent to us. You have suggested in your book that the Bush Administration is trying to rewrite the rules of the international system in terms of dealing with the new threats and the current situation. Do you think that the existing global rules do need to be changed or are they all entirely adequate for the current circumstances?

  Professor Sands: Firstly, thank you very much, Mr Chairman, through you to all the Members for inviting me and having an opportunity to address these important issues. The story that I have told in the book begins with a very strong American commitment to developing a system of global rules in the period during and immediately after the Second World War and which characterises the United States' engagement with the international community for much of the next 40 years. The significant change that took place pre-dated the events of September 11 and the Administration of President Bush came into office with a commitment to rewrite already some of the emerging global rules—one thinks of the criminal court and of Kyoto. My thesis is that 9/11 presented an opportunity to take forward that project and it did so in relation to essentially two sets of rules. Firstly, the rules governing the use of force, the jus ad bellum; and secondly, the rules governing methods and means of warfare, the jus in bello. In both cases, coming to your question, my own view is that present challenges certainly require governments to review the adequacy of existing rules, but on the basis of the information that I have available to me—that which is essentially in the public domain—I do not believe that the rules in their fundamental essence require significant change.

  Q289  Sir John Stanley: Professor Sands, on page 182 of your book you wrote, "Tony Blair had privately signalled his commitment to regime change very early on. On 18 March 2002 Sir David Manning, Blair's Foreign Policy Adviser, had written to the Prime Minister confirming that he had told Condoleezza Rice that, `You would not budge in your support for regime change.'" Can you tell the Committee, in your view what was the point in time when Mr Blair had made an irrevocable commitment to Mr Bush that if Mr Bush went for regime change by military intervention the British Forces would be there with him?

  Professor Sands: Thank you for that question. Again, obviously I have not been privy to absolutely all the information so I can only talk about that which is in the public domain and that which I have otherwise had sight of. My personal view is that the Prime Minister took a decision very early on, in March/April 2002, to provide unambiguous support to President Bush and that President Bush had decided at that time to remove Saddam Hussein from office, irrespective of what did or did not emerge. In terms of proof—and as a lawyer, as an English barrister obviously one is very careful in answering your question—I would say that certainly by 31 January 2003 the Prime Minister had taken his personal decision to support President Bush's decision to remove Saddam Hussein from office. I refer to that date because that is a date from a memorandum that I have referred to later in the book, at pages 272 and 273, relating to a private conversation between the President and the Prime Minister at the White House, accompanied by a small number of other individuals, at which President Bush unequivocally states that he has decided to use force, and the Prime Minister unequivocally states, "I am solidly with you." And in my view everything that happened thereafter, including the UN process, the views of the weapons inspectors, did not really matter what it turned up because the decision had been taken and the start date for war had already been pencilled in. So certainly by that date there had been, in my view, on the Prime Minister's part, an irrevocable decision. That does not of course mean that he would not have to come back and persuade Cabinet, persuade Parliament and perhaps persuade others, the Military, to support the use of force, but I think his decision had been taken and his efforts on the basis of the material that I am aware of were in that direction and unequivocally so.

  Q290  Sir John Stanley: So you are saying to the Committee that in your view a significant period, several months before the Prime Minister had asked the House of Commons for consent to go to war, and indeed during the period when the Prime Minister was saying to the House of Commons that no decision had been taken, that privately he was committed to supporting President Bush militarily in bringing about regime change by military force in Iraq?

  Professor Sands: Yes and the material is unequivocal. The New York Times ran a story a month after the latest edition of the book came out; they obtained confirmation from two British senior sources that the material was authentic and neither Downing Street nor the White House has challenged the authenticity of that material. That material is unequivocal and I think it follows from that that it would be, shall we say, helpful to consider very carefully what the private personal decision had been and what the public statements were. There is, regrettably in my view, a very significant gap between what was being said publicly and what had been said privately.

  Q291  Mr Keetch: Professor, can I turn to another subject in which this Committee has been interested, and that is extraordinary rendition. As an eminent QC could you give us your opinion of the legality or otherwise of the practice that we generally accept as being called extraordinary rendition?

  Professor Sands: The term extraordinary rendition does not have a legal definition as a term of art; you will not find it in any treaties or any domestic or other legislation. What it is typically taken to refer to is the practice of identifying an individual who may be associated with terrorist or related activities, apprehending him and removing him from the jurisdiction in which he is apprehended and taking him to another jurisdiction where he can be subject to treatment and, in particular, forms of interrogation, which may not be permitted by the law of the apprehending state.

  Q292  Mr Keetch: Therefore you would say that that is an illegal act under international law?

  Professor Sands: I think there is no international lawyer of whom I am aware who would say that it is justifiable in any circumstances for a State to extra-judicially or extra-legally take someone off the streets, remove them to another country and subject them to treatment, forms of interrogation which may amount to cruel, inhuman or degrading treatment or torture within the meaning of the 1984 Convention against Torture.

  Q293  Mr Keetch: When we have questioned the Foreign Secretary, and indeed when we have questioned Administration officials on the other side of the Atlantic, one of the arguments has been, "Look, if this is going on why is there not evidence, why has a person not come forward and said, `Look, this has happened to me'?" Have you actually identified anybody or a case or two or three, whatever, where you actually think that this practice has gone on? I am not talking about CIA jets flying in and out of airports but an actual clear example where you believe that extraordinary rendition, as defined by you, has actually occurred?

  Professor Sands: I am going to have to be very careful what I say—I can only speak from my personal knowledge and I do not have awareness of all of the facts, and I have been very careful in making public comments on this issue—to put a caveat that one has to look at the facts and the facts plainly, if they exist, have not yet emerged. I am aware of certain cases in which the allegations have been made. Probably the leading case is the example of an individual of Canadian nationality who was flying, it is alleged, via JF Kennedy Airport in New York, who was apprehended, it is said, with the support of the Canadian and US Police Authorities and transferred, it is said, to Syria where, it is said, he was subject to treatment that did not meet the requirements of the 1984 Torture Convention in the process of interrogation. That is the best-known example that I am aware of, but again of course the facts have not yet been established so one has to have a certain caveat. There are several other cases that I am aware of but none from my own personal knowledge.

  Q294  Mr Keetch: Finally, are there any of those cases that actually involve the British Government or the transition of an individual through a British airport or through a British jurisdiction, because again the Foreign Secretary has basically said to this Committee, "Look, it does not happen and if it did happen you would have heard about it somehow"?

  Professor Sands: It is a difficult question because I think on many of the cases of which we are aware the full facts are not out. There are individuals who are not British nationals but who have right of residency in this country who are currently being detained at Guantanamo and it is said in relation to a couple of them that they were taken off the streets of a third country and transported eventually to Guantanamo, and it is suggested that there was some involvement of British authorities in that process. But, again, this is allegation and I do not have hard evidence—these cases have not gone to court. Another example that one might refer to—and it has been written up in his book—is a former British detainee, Moazzam Begg, whose story is told in his own book and alleges that he was taken off the streets of Pakistan, transported from Pakistan to Bhagram Airbase in Afghanistan and from there transported onwards to Guantanamo. In the course of the story which he tells—and, again, it has not been tested in a court of law so one has to have a certain degree of caution—it appears that British authorities were involved in identifying his presence in Pakistan and certainly, according to his account, in questioning him very shortly after he was apprehended. That would suggest, in answer to your question, there is material that is worth investigating thoroughly. I think the most important point to make in relation to extraordinary rendition is that under the 1984 Convention against Torture Inhuman and Degrading Treatment, all States' parties, including this government, which takes its international responsibilities seriously, have a positive duty to investigate allegations of wrongdoing of this kind. To the best of my knowledge there has not yet been a full investigation of that kind and such an investigation is required where there is credible evidence.

  Q295  Mr Horam: Coming back to your main theme, your assertion that America has tried to change the system of global rules and that the UK has been part of that as well, what role, in your view, should the UK have played? What role would you like to have seen it play?

  Professor Sands: One big caveat that has to be put in, which I elaborated in the book but which has not been fully brought out in the media, is I think that the situation is changing, in this sense. I think that the United States in particular has recognised that playing fast and loose with the rules comes with a price, and I think in particular in the second Administration of President Bush there has been an effort to, shall we say, re-engage with America's traditional rule of law type of approach. That is evidenced, for example, I think, in the work of Secretary of State Rice, who I believe is working very hard to ensure that the rules on torture and other rules—

  Q296  Mr Horam: Accepting your caveat my question is about the UK.

  Professor Sands: I am making the caveat because on the best possible case it could be said that the United Kingdom and the Prime Minister have contributed to that effort to re-engage. Again, I am not privy to all of the material that goes on behind the scenes, but let me give two examples where I think the UK has not acted as it ought to have acted. Firstly, in relation to Guantanamo, whatever may have been said privately, publicly there has been no critique at the highest level of government of the conditions under which Guantanamo has been set up and operated. I believe that has sent a signal to those in the Administration of President Bush who feel it is justifiable to proceed in this way, and I have been told by senior officials in the Administration of President Bush that Britain's silence on Guantanamo amounts, in effect, to an acceptance that that particular policy matter is justifiable. I think if the British government at the highest levels—not some junior official—the level of the Prime Minister and the Foreign Secretary had spoken out decisively in the spring of 2002 the story with Guantanamo may have been different—it may not have been, but I think it may have been. The second example, of course, is in the road to war on Iraq. I am certainly satisfied that the Prime Minister believed a second resolution from the Security Council would have been justified but, again, it seems pretty clear to me on the material that I have seen that there was no full effort at the end of the day to ensure that the United States' actions and the British actions were made fully consistent with the rule of law, and I regret on the basis of the material—some of which is described in the book—I do not have the sense that behind the scenes the interests of the United Kingdom in maintaining the rule of law and the United States' commitment to the rule of law was put as strongly as it should have been put. That for me, personally, is a matter of considerable regret.

  Q297  Mr Horam: Winding forward from that, you have no doubt heard Mr Blair's speeches in Australia and elsewhere about the use of pre-emptive force in the international global problems. How does that fit into what you are saying about how the UK should have behaved or might not behave in the future?

  Professor Sands: The Prime Minister has made a number of speeches.

  Q298  Mr Horam: The theme was the use of pre-emptive military force, the justification for using pre-emptive military force, which changes the post-war global rules.

  Professor Sands: The Prime Minister has made a number of speeches which are not necessarily all in exactly the same direction. In some he has apparently been more supportive of pre-emptive force, in others he appears less supportive of pre-emptive force. I take it your question is concerned with those where he is more supportive of pre-emptive force consistently with the position adopted by the United States. For me that is a matter of considerable concern. On this particular aspect I share entirely the evidence that was put before this Committee by the Attorney General which indicated, I think very accurately, the circumstances in which the international rules governing the use of force can permit the use of force in self-defence where a State is subject itself to an attack or an armed attack is threatened. My own view is that the existing rules of international law justifying the use of force where an attack is threatened are sufficient to allow a State, including the United Kingdom, to act where there is credible evidence that a weapon of mass destruction is being assembled with the intent of using it in relation to, in this case, the United Kingdom. The concern that I have with the Prime Minister's statements is that they tend to suggest that the existing rules are inadequate and I believe that the existing rules are adequate at present to deal with all foreseeable situations, and I believe the Attorney General gave the same evidence to this Committee some time ago.

  Chairman: I am conscious it has been indicated that we may have a vote imminently. If so we will break for 15 minutes and then come back and continue, but we will carry on until that moment.

  Q299  Mr Purchase: You have, as the Chairman said earlier, made it very, very clear that you believe that the Bush Administration used the war on terrorism as a way to obfuscate the purpose of changing the rules of the game. Given that that was nothing more than opportunism, we will say, do you think there is a grand plan in which the Americans see themselves as significantly changing the rules, in order to create some advantage, of which I know not? But if you have in your mind a way in which the rules could be changed to advantage the USA, whom would it disadvantage?

  Professor Sands: I think the first thing I would want to say is that I have been very careful not to talk about the USA because like any country there are lots of different views, and to the extent I have a critique, which I do, it is of the Administration of President Bush.


 
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