Select Committee on Foreign Affairs Third Report

2   The International Framework

The UN Human Rights Council

12. In our Report on the FCO's 2005 human rights report, we welcomed moves to replace the discredited United Nations Commission for Human Rights with a UN Human Rights Council (HRC).[10] We agreed with the many Western states and NGOs who felt the Commission for Human Rights had been too soft on countries accused of serious human rights violations. The General Assembly established the new and much anticipated Council in March 2006. The FCO Human Rights Annual Report argues "the HRC represents a fresh start. It is an opportunity for the UN to adopt a new approach to human rights, and to develop more effective tools for dealing with today's human rights challenges."[11]

13. Responding to a request for more detail on how the Council is working out in practice, the FCO told us that,

Overall, there have been both constructive and disappointing developments so far. There is much work still to do for the Council fully to realise its potential.

…

The Council has been hampered in its early stages by a lack of clarity at its regular sessions over the organisation and direction of the sessions' work. For example, the late tabling in the second session of over 47 individual resolution texts made it impossible for the session to finish its work within the allotted timeframe. To some extent this effect is inevitable, as the Council seeks to move beyond the precedents and practices of its predecessor body.

However, more problematic, and damaging to the Council's early work and credibility, has been the questionable commitment of some of its members to the successful fulfilment of its mandate. After much early talk of the need to "depoliticise" UN human rights work and increase dialogue, some regional blocs have pushed through their own agendas at the expense of others'. This led to a disproportionate and unbalanced focus on the situation in the Middle East in July-August. Three Special Sessions were called on this in four months. It is important for the Council's credibility to discuss these issues. But it must show it can address situations and issues with equal focus across its mandate and across the world. We also want to see those discussions held transparently, constructively, and in a balanced manner. [12]

14. The HRC is stronger than the Commission for Human Rights in a number of ways. Candidates for the HRC require a majority of votes from all UN members to be elected and are expected to enter into voluntary commitments to protect human rights. The HRC will also implement a new universal periodic review mechanism to examine each state's human rights performance.[13] The United Kingdom was elected to the HRC on 9 May 2006, along with 46 other countries.[14] The FCO told us that,

Looking ahead, we will continue to work hard to meet the challenges outlined above. Specifically, we are working with EU partners to increase the effectiveness of our interventions in the Council's debate and work. We will intensify efforts to build partnerships with those countries across the world that, like us, wish to see an effective and credible Human Rights Council. We will continue to promote open and balanced dialogue on all human rights issues, including the most sensitive.[15]

15. A number of concerns have been raised regarding the HRC. The United States was one of a handful of states to vote against the Council in the General Assembly. It then refused to stand for election to the Council, although it pledged to continue to fund it. Explaining his country's vote against the resolution establishing the HRC, the then Ambassador John Bolton said the US was seeking stronger commitments for establishing "credible membership" of the Council (i.e. not allowing human rights abusers to be elected).[16] The US may feel its concerns have been vindicated with the election to the Council of Cuba, Saudi Arabia and China. However, Iran was defeated and Zimbabwe and Sudan did not submit their candidacy.

16. In November 2006, Human Rights Watch strongly criticised the performance of the HRC, noting that it "failed to take concrete action or even to condemn serious human rights abuses in places like Darfur, Burma, Uzbekistan or Colombia."[17] Amnesty International has voiced concern at "too many vestiges of practices that were responsible for discrediting the Commission on Human Rights" in the HRC's meetings so far.[18] The FCO Human Rights Report criticises "unhelpfully unbalanced" resolutions tabled by the Organisation of the Islamic Conference (OIC) on religious defamation and on the Palestinian Territories. These were passed by the HRC despite British opposition. Along with other EU states, the United Kingdom also voted against similar resolutions on Lebanon, although again, it could not stop their adoption.[19]

17. Giving evidence in January, Tom Porteous from Human Rights Watch raised concern at the role of the OIC. He said "the UK should be working more proactively with its EU partners… to break the OIC's bloc voting patterns."[20] The FCO told us it is "working with EU partners to increase the effectiveness of our interventions in the Council's debate and work."[21] The FCO's written evidence includes a lengthy and detailed section on the human rights activity of the UK in the various institutions of the United Nations.[22]

18. We repeat our welcome for the establishment of the UN Human Rights Council and our hope that it will avoid the shortcomings of its predecessor organisation. Foremost among its early challenges is the need to achieve balance in its resolutions on the basis of universal values. A robust process of periodic review and support for the work of the 'special procedures' mechanisms through which the Council conducts much of its work will be essential to success in this regard.

19. We recommend that in the 2007 annual report on human rights, the FCO include a substantial section on the work of the Human Rights Council, including an assessment of the extent to which its work is being hampered by particular states or by groups of states pursuing their own agenda, and an evaluation of how well member states are co-operating with the special procedures and with the universal periodic review process. We suggest that this section could include a table showing the voting records of each country on key resolutions.

The 'Responsibility to Protect'

20. The September 2005 UN World Summit made a historic commitment to the 'Responsibility to Protect.' Member states acknowledged their collective responsibility to protect populations at risk of genocide, ethnic cleansing, war crimes and other crimes against humanity from their own, or other, states. The declaration stated that the UN Security Council could, if appropriate, authorise military action to protect civilians from these crimes.[23] The Security Council reaffirmed this commitment when adopting Resolution 1674 on the Protection of Civilians in Armed Conflict in April 2006. However, human rights organisations have highlighted the disparity between the words and actions of UN member states. For instance, Human Rights Watch, in a letter to incoming UN Secretary-General Ban Ki-moon, argued that "the UN's apparent impotence in the face of the terrible international crimes" in places like Darfur "raise concerns that the commitment to protect people facing such atrocities is mere rhetoric."[24]

21. Notwithstanding this, the FCO is very positive about the Responsibility to Protect.

The UK was the main sponsor of Security Council Resolution 1674 on the Protection of Civilians in Armed Conflict. The resolution was adopted in April 2006, and reaffirmed the concept of the Responsibility to Protect as outlined in the 2005 World Summit Outcome Document. Responsibility to Protect was also included in Resolution 1706, adopted by the Security Council on 31 August on the situation in Sudan/Darfur.

The UK also leads on the wider protection of civilians agenda in the Council. We participated fully in the Security Council's open debates on this on 28 June and 4 December 2006. Those debates covered: the importance of the rule of law and respect for international humanitarian law, human rights law and the Geneva Conventions; the need for an end to impunity and the role of the International Criminal Court in achieving this; the extent and gravity of sexual and gender-based violence; the importance of unimpeded humanitarian access where it is needed; and concern about the increasing number of internally displaced persons. Sudan featured heavily in both debates. Where appropriate, we have also raised protection concerns in the Council's consideration of country-specific issues (for example Northern Uganda, and Chad).[25]

22. We welcome the leading role adopted by the Government in the Security Council's work on the Responsibility to Protect and we support the commitment made by the United Nations to protect civilians from genocide and other war crimes. But as the example of Darfur suggests, it remains to be seen whether this responsibility will be lived up to.

23. We recommend that in its response to this Report the Government explain what results on the ground have flowed from its leading role on the 'protection of civilians agenda' at the United Nations, and what steps it has taken to achieve effective implementation of the Responsibility to Protect.

The Arms Trade Treaty

24. The FCO Report highlights the work done by the Government to secure an Arms Trade Treaty (ATT), which would bring better international regulation of the trade in conventional arms. Establishing the treaty is a "global priority" for the United Kingdom.[26] Throughout the campaign for the ATT, the Government has been keen to promote its co-operation with organisations such as Amnesty and Oxfam. In our Report on the 2005 human rights report, we commended the Government for its support of the ATT.[27]

25. In the same month as the publication of the FCO Report, the UN General Assembly voted to start work on the ATT. More than a hundred countries sponsored the resolution, and 153 countries voted in favour. The only country to vote against the resolution was the United States.[28] The Foreign Office has said the US opposed the treaty because it believes it already has good export controls in place and does not see added value from it.[29]

26. Outlining a projection of future work on the ATT, FCO Minister of State Dr Kim Howells MP said "the UN Secretary General will seek views from member states, and then a Group of Governmental Experts will meet in 2008 to examine the feasibility, scope and draft parameters of a treaty."[30] The Secretary-General has set a deadline for this exercise of 30 April 2007.

27. We asked Ian McCartney for his assessment of how damaging US opposition is to the main aim of securing a strong treaty:

Having moved on since December, we want to see a real difference, in terms of irresponsible arms sales, so we want an agreement to come out of the 30 April deadline. There will still be countries—the United States and others—that oppose that. However, we have a clear intellectual, political, moral argument to put—after all, we eventually won the argument on land mines. These issues are not easy to resolve; it will take some time. However, the fact [is] that we have given leadership on the issue and are prepared to stick at it …[31]

28. We welcome the Minister's close interest in securing progress on the Arms Trade Treaty and his preparedness to take a different line from that pursued by the United States. In particular, we appreciate the Minister's willingness to engage with Parliament and with other interested parties on developing the United Kingdom's position. We recommend that the Government continue to give leadership on moves to create an Arms Trade Treaty and that it do its utmost to persuade the United States to support this.

Cluster Munitions

29. The Ministry of Defence defines cluster munitions as follows:

A cluster munition is an air-carried or ground-launched dispenser, containing numerous sub-munitions, which is designed to eject those sub-munitions over a pre-defined target area. Cluster munitions are not the same as anti-personnel landmines and are not covered by any weapon-specific conventions, including the Ottawa convention.[32]

Handicap International, a charity dealing with those maimed by battlefield munitions, gives some further detail:

Cluster bombs carry up to 200 bomblets, each the size of a soft drink can.

The submunitions are designed to explode on impact, which differentiates them from antipersonnel mines, which are designed to be activated by the victim.

However, when cluster bombs fail to explode as expected, they remain hazardous and will explode when touched or disturbed.[33]

30. The Financial Times reported in November 2006 that a publication by Handicap International found that 98% of the victims of cluster munitions were civilians. It documented more than 11,000 deaths and injuries over the past 30 years, although because of under-reporting in high-use areas such as Afghanistan and Chechnya, it estimated the true figure as around 100,000.[34]

31. In late January 2007, the US State Department criticised Israel for misusing American-made cluster bombs in the Lebanon war. A preliminary classified report has been sent to Congress to decide whether it wishes to pursue the matter.[35]

32. The Secretary of State for International Development, Rt hon Hilary Benn MP, wrote to the Foreign and Defence Secretaries in November. The letter was leaked to the press. He argued that,

the high failure rate of many cluster munitions, and the failure of many militaries around the world to use these munitions in a targeted way means that cluster munitions have a very serious humanitarian impact, pushing at the boundaries of international humanitarian law. It is difficult then to see how we can hold so prominent a position against land mines, yet somehow continue to advocate that use of cluster munitions is acceptable.[36]

Mr Benn suggested that cluster bombs are "essentially equivalent to landmines", which are banned under the 1999 Ottawa Treaty. Newspapers reported that the FCO and MOD opposed Mr Benn's view.

33. In January, Tom Porteous of Human Rights Watch told us that the United Kingdom was "blocking" a treaty to ban cluster munitions. Mr Porteous argued that "cluster munitions endanger civilians" even after a conflict has ended (e.g. through unexploded bomblets in Lebanon) and therefore "they cannot be justified under the rules of war" and should be banned. He said that Norway would be inviting states to develop a new treaty along the same lines as the landmine ban treaty. He noted that the United Kingdom and other countries such as China, Russia and the United States were not supporting Norway's proposals as "they want to see discussions over cluster munitions taking place within the convention on conventional weapons. This is basically a way of making sure it does not happen—at least not any time soon."[37]

34. As recently as 25 January, the Foreign Secretary confirmed that the United Kingdom's work to phase out cluster munitions was taking place within the framework of the convention on conventional weapons.[38] However, in what has been seen as a surprising change of policy, the Government swung behind the Norwegian proposal and signed a strongly worded declaration at the end of a meeting of 49 states in Oslo in February 2007.[39] The Oslo Declaration sets out a "legally binding" process for banning indiscriminate, or 'dumb', cluster munitions.[40]

Recognising the grave consequences caused by the use of cluster munitions and the need for immediate action, states commit themselves to:

1. Conclude by 2008 a legally binding international instrument that will:

(i) prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and

(ii) establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation to survivors and their communities, clearance of contaminated areas, risk education and destruction of stockpiles of prohibited cluster munitions.

2. Consider taking steps at the national level to address these problems.

3. Continue to address the humanitarian challenges posed by cluster munitions within the framework of international humanitarian law and in all relevant fora.

4. Meet again to continue their work, including in Lima in May/June and Vienna in November/December 2007, and in Dublin in early 2008, and welcome the announcement of Belgium to organise a regional meeting.[41]

35. The Oslo Declaration's reference to "cluster munitions that cause unacceptable harm to civilians" has been taken to refer to 'dumb' cluster munitions. This raises the question, how to define such munitions. During his recent appearance before the Quadripartite Committee on Strategic Arms Export Controls, DfID Minister Gareth Thomas MP said "we still have to reach a more detailed definition with allies in the Oslo process."[42] This was a disappointing statement, suggesting that the Government has no working definition of the term 'dumb cluster munitions.' The Quadripartite Committee therefore returned to this question on 15 March, when the Foreign Secretary appeared before it. She told the Committee that

there are some [cluster munitions] which have perhaps a greater capacity to be used in a more targeted way, or which lose their capacity perhaps after time to inflict that kind of injury [unacceptable harm to civilians], and others which do not, which having been dropped just stay there as a potential lethal weapon under all circumstances …[43]

36. Events moved quickly. On 20th March, the Defence Secretary told the House that "we are withdrawing dumb cluster munitions from service with immediate effect."[44] However, British forces will retain other cluster munitions, which protect civilians from unacceptable harm "through inbuilt self-destructing or self-deactivating mechanisms." Mr Browne continued:

At the moment, our inventory includes two dumb cluster munitions: the RBL 755 aerial delivered cluster munition, and the multi launch rocket system M26 munition. Both will be withdrawn from service immediately and disposed of. Although withdrawing them represents a theoretical risk to our operational effectiveness, until their direct replacement is in service, there is no current plan to deploy them on operations. I have decided that this is an acceptable risk.

The types of cluster munitions we intend to retain are legitimate weapons with significant military value which, as a result of mitigating features, is not outweighed by humanitarian factors. As with all weapons, our forces' use of them will remain regulated by rules of engagement and internal scrutiny procedures designed to adhere to international law and reflect humanitarian values.

37. We observe that the test of whether a munition causes "unacceptable harm to civilians" is not only the weapon's capability, but how it is used. Any bomb dropped on a civilian target may cause unacceptable harm. FCO Minister Ian McCartney appeared to take this line when he told us that "The difference between dumb cluster munitions and those that are not so dumb is something that is lost on their victims. That is not my mandate to say that, but it is true."[45] Greatly welcome though the Government's decision to dispose of its own 'dumb' cluster munitions and to press for an international ban on such munitions is, we note that it has made no commitment to press for a ban on all cluster munitions.

38. We welcome the decision by the Government to attend the Oslo meeting on cluster munitions—which was boycotted by Russia, the United States and Israel—and to sign the Oslo Declaration. We also welcome the Government's announcement that it is withdrawing from service its 'dumb' cluster munitions immediately and its decision to press for a worldwide ban on such munitions. We recommend that the Government exert strong pressure on other countries to dispose of their 'dumb' cluster munitions immediately. We note that United Kingdom armed forces will retain some types of cluster munition. We recommend that in its response to this Report the Government clarify which cluster munition types are to be retained in service; for how long it is expected they will be retained; and whether the Government has any plans to work towards an early international agreement to ban all cluster munitions. We also recommend that a section on the impact on civilians of cluster munitions be included in the Annual Human Rights Report 2007.

Corruption

39. In our last Report on human rights, we called on the Government to "broaden international support for instruments, like the UN Convention against Corruption, which enshrine ethical standards for business at an international level."[46] The FCO replied that:

Through the Gleneagles G8 Summit the Government raised the profile of the Convention Against Corruption (UNCAC) and sped up its implementation. At the summit the G8 countries made an explicit commitment to ratify and promulgate UNCAC. The Government has since led by example and ratified the convention on 9 February 2006. We are lobbying other governments to do likewise.[47]

Although the Government claimed to be 'leading by example', the decision on 14 December 2006 to call off the Serious Fraud Office's investigation into allegations of corruption in relation to the 1980s al Yamamah ('dove of peace') arms sales contract with Saudi Arabia on public interest grounds and because of "the need to safeguard national and international security" has attracted strong criticism.[48]

40. Amnesty International provided us with strong comment on this decision, suggesting that it,

risks reversing the progress made in recent years by the 36 signatories to the OECD Anti-bribery Convention to raise standards and level the playing field in international business transactions. [49]

Amnesty continued:

[The decision] also threatens the implementation of the more recent United Nations Convention against Corruption (UNCAC), which requires all parties, including the new trading powers of China and India, to investigate and prosecute companies that pay bribes overseas. Amnesty International urges the UK government to re-open the investigation into BAE Systems plc.

Similarly, Human Rights Watch told us,

The decision to drop the SFO's investigation sends a very negative message with respect to the UK's commitment to promote better governance and more transparent standards of accountability.[50]

41. The OECD itself discussed the Government's decision in its working group on bribery in January 2007 and recorded its "serious concerns as to whether the decision was consistent with the OECD Anti-Bribery Convention."[51] In March, the working group met again and issued the following statement:

At its March 2007 meeting, the OECD Working Group on Bribery reaffirmed its serious concerns about the United Kingdom's discontinuance of the BAE Al Yamamah investigation and outlined continued shortcomings in UK Anti-Bribery legislation. It urged the UK to remedy these shortcomings as quickly as possible and decided to conduct a further examination of the UK's efforts to fight bribery.[52]

In a written statement to the House on 20 March, Ian McCartney announced the Government had made a report to the OECD on the United Kingdom's progress with implementing the Anti-bribery Convention.[53] The Minister said the report "confirmed the Serious Fraud Office (SFO)'s lead role in handling foreign bribery allegations" but he made no mention of the al Yamamah affair.

42. We conclude that the Government's decision to halt the inquiry into the al Yamamah arms deal may have caused severe damage to the reputation of the United Kingdom in the fight against corruption. We recommend that in its response to this Report the Government set out what steps it has taken since that decision to maintain momentum on international anti-corruption measures, and how it has responded to the OECD's criticisms of the decision.

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10   Foreign Affairs Committee, First Report of Session 2005-06, Human Rights Annual Report 2005, HC 574 Back

11   Foreign and Commonwealth Office, Human Rights Annual Report 2006, Cm 6916, October 2006, p163 Back

12   Ev 58 Back

13   See Joint Statement by International Federation of Human Rights, Human Rights Watch, International Commission of Jurists, and World Organization against Torture, 29 June 2006, available at www.hrw.org Back

14   Foreign and Commonwealth Office, Human Rights Annual Report 2006, Cm 6916, October 2006, p162 Back

15   Ev 58 Back

16   US Government: Explanation of vote on the Human Rights Council draft resolution, 15 March 2006, available at www.usmission.ch/Press2006/0315Bolton.htm Back

17   Human Rights Watch: "How to put the UN Rights Council Back on Track", 3 November 2006, http://hrw.org/english/docs/2006/11/03/global14503.htm Back

18   Amnesty International: "Human Rights Council: Member Governments must do more to build an effective Council", 11 October 2006, http://web.amnesty.org/library/Index/ Back

19   Foreign and Commonwealth Office, Human Rights Annual Report 2006, Cm 6916, October 2006, p 165 Back

20   Q 1 Back

21   Ev 58 Back

22   Ev 67 Back

23   The relevant passages of the Outcome Document are available at www.responsibilitytoprotect.org Back

24   The letter is available at: www.hrw.org Back

25   Ev 64 Back

26   Foreign and Commonwealth Office, Human Rights Annual Report 2006, Cm 6916, October 2006, p 219 Back

27   Foreign Affairs Committee, First Report of Session 2005-06, Human Rights Annual Report 2005, HC 574 Back

28   The key text of the resolution is available on the FCO website, www.fco.gov.uk Back

29   "Britain to defy US over UN resolution on arms trade", The Guardian, 20 October 2006 Back

30   Text from Foreign and Commonwealth Office website, http://www.fco.gov.uk Back

31   Q 58 Back

32   HC Deb, 23 November 2006, col 801 Back

33   See www.handicap-international.org.uk Back

34   "Civilians hit most by cluster bombs", Financial Times, 3 November 2006 Back

35   "Israel may have misused cluster bombs in Lebanon, U.S. says", International Herald Tribune, 30 January 2007 Back

36   "Cabinet Minister calls for ban on cluster bombs", The Guardian, 6 November 2006 Back

37   Q 2 Back

38   25 January 2007, Column 1947W Back

39   "Britain supports call for ban on cluster bombs", The Guardian, 24 February 2007 Back

40   See HC Deb, 7 March 2007, col 2011W Back

41   See www.norway.org.et/policy/cluster/Declaration+on+Cluster+Munitions.htm Back

42   Oral evidence taken before the Quadripartite Committee on 1 March 2007, HC 117-ii, Q 79 Back

43   Ibid, Q 235 Back

44   HC Deb, 20 March 2007, col 37WS Back

45   Q 59 Back

46   Foreign Affairs Committee, First Report of Session 2005-06, Human Rights Annual Report 2005, HC 574, para 100 Back

47   Foreign and Commonwealth Office, First Report from the Foreign Affairs Committee 2005-06, Annual Report on Human Rights 2005, Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 6774, May 2006 Back

48   HL Deb, 14 December 2006, col 1712 Back

49   Ev 51 Back

50   Ev 55, para 4 Back

51   "OECD Secretary-General stresses governments' role in anti-corruption drive", 18 January 2007, available at www.oecd.org Back

52   "OECD to conduct a further examination of UK efforts against bribery", 14 March 2007, available at www.oecd.org Back

53   HC Deb, 20 March 2007, cols 39WS-41WS Back

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Prepared 29 April 2007