Examination of Witnesses (Questions 49-59)
LORD MALLOCH-BROWN
KCMG, SUSAN HYLAND
AND STUART
ADAM
7 MAY 2008
Q49 Chairman: I am sorry for the
slight delay in starting, but we had rather a lot of business
to conclude. I welcome you, Lord Malloch-Brown, to your first
appearance before the Foreign Affairs Select Committee in a formal
capacity, as well as your colleagues— Susan Hyland and Stuart
Adam—who are already known to us. We are looking at human
rights with a wide scope and at a wide range of countries and
issues, but this is all brought together within the United Nations
system.
We have now had a period in which the new system
of the Human Rights Council has been in operation. The Foreign
and Commonwealth Office memorandum to us and your report point
out the disappointments about how the Human Rights Council is
working. Given your previous and current role, I would be interested
in your assessment of how we can stop what is regarded as a disproportionate
and unbalanced focus on the Middle East, so that the Human Rights
Council talks about other issues in the world.
Lord Malloch-Brown: Thank you,
Chairman, for the opportunity to appear before the Committee.
I know many of you in various incarnation and not least as members
of the Committee, but it is nice to sit in front of you here rather
than in discussions in New York and elsewhere.
The first thing to say about the Human Rights
Council is that we believe in it enough to be engaged in a very
tough, competitive election at the moment to get re-elected as
a member of the council. I have been campaigning hard for that
in New York and Geneva with my colleagues. One reason for that
is a view that this would be a very bad time for Britain to desert
the project: this is a new infant, not yet walking. You are allowed
to be a member only for two terms in a row and we had originally
considered stepping down for what would have been our second term
and come back to be re-elected further down the road. Instead,
we decided to stick with it precisely for the reason you touched
on, which is that the council is weak and needs help.
We believe that a number of things are going
the right way. We have just started the process of the periodic
review and the UK is one of the first countries to go through
that. We have been pressing consistently for a focus on a much
wider range of countries than just the Middle East. Although it
is true that the focus on the Middle East is disappointingly disproportionate,
the fact is that less noticed issues, such as a resolution on
Darfur and other matters that many members of the council initially
objected to, have been gotten through. Our view is that the voting
record is more balanced and better than the general public commentary
might suggest.
We have also had some success, for the first
time in such a UN forum, in ensuring that there were not the votes
for regionally selected countries that would normally have been
nodded through because they were on a regional slate. I have in
mind Belarus, which was put up last time round and which, through
the activities of many non-governmental organisations here today
and others, together with the British Government, was blocked
from election on the grounds of its human rights record. It has
been a painful and difficult business, but I urge you not yet
to cast too definitive a judgment. It is work in progress and
we are winning some and losing some in terms of building up the
council's credibility as an institution.
Q50 Chairman: Is there any prospect
that the United States could, in the foreseeable future, join
the Human Rights Council?
Lord Malloch-Brown: I very much
hope that it will. I come from a UN tradition that thinks that
nothing important has happened on human rights without the United
States at the leadership of it. It was Eleanor Roosevelt who drove
the initial work on human rights in the UN in the 1940s, leading
to the establishment of the Commission on Human Rights. It has
been a huge blow for the credibility of the Human Rights Council
that the US is not a member. Certainly, it has been a goal of
ours to keep the US engaged, informed and involved so that the
bureaucracy is on board to come back once there is an Administration
willing to do so. I do not think that it is easy; I do not think
that any of the presidential candidates will look at this as an
automatic choice; they will all see downsides. The council is
already significantly discredited in the editorial columns of
much of the American media and is not held in terribly high regard
by many American NGOs either, but it has got to be the goal of
our policy to persuade a new President that the US should come
back.
Q51 Mr. Horam: I have a general question
following on from the Chairman's question. The more autocratic
countries in the world such as China, Russia and many other smaller
countries are getting increasingly powerful and self-confident
and are resistant to the ideas of human rights and the liberal
democratic tradition. They are saying, as they have said for some
time but with ever more confidence, "This is none of your
business; we do things our way; get out of our hair; you are hypocrites
anyway because of Guantanamo and Abu Ghraib, the invasion of Iraq
and so forth". What is the best way of advancing the case
for human rights in this developing global climate?
Lord Malloch-Brown: I think you
put your finger on a very real trend in not only the attitudes
of Governments, but often of their publics as well. Do not underestimate
the genuine Chinese public indignation on Tibet, for example.
This is a difficult time. I would say that it is countered by
the fact that when a country, such as China, becomes more of a
global stakeholder, it finds that its instincts and those of its
public opinion have to be counter-balanced by what it needs to
do to enjoy a global reputation, which it considers critical to
its global, political and commercial ambitions. For example, we
have seen China being rather more helpful than before on Darfur
and even, to some extent, on the margins in Zimbabwe. Similarly,
we saw China being helpful when western public opinion was at
its most outraged on Burma. The global engagement of countries
such as China somewhat offsets their own domestic instincts on
such issues, and gives you an avenue to raise their own international
behaviour on human rights.
Q52 Mr. Horam: How can the UK unilaterally
bring pressure to bear?
Lord Malloch-Brown: First, keep
China engaged in the world. Do not force it back into a corner
or cut off communications. Secondly, we are having a human rights
dialogue with the Chinese twice a year. There is also a European
human rights dialogue with the Chinese in which individual cases
are raised, and the Chinese come back to us on them. We track
progress at the institutional level, monitoring, for example,
the use of the death sentence. We look at the institutionalisation
of a justice system that gives more rights to ordinary citizens
either to bring forward cases or in their role as defendants.
All that is reinforced by the fact that no senior Minister in
the British Government would meet Chinese officials around a commercial
or political agenda without raising human rights issues to remind
them that, for us, that remains a critically important part of
the agenda.
When dealing with human rights in China, and
many other countries, we must balance our complaints about their
lack of progress on political and civil rights against their remarkable
achievements on some economic and social rights—for example,
lifting 400 million people out of poverty. Often, we do not offer
them a balanced picture, which offers respect and encouragement
for what they have done, while reserving our right to criticise
areas in which they are still lagging.
Q53 Mr. Heathcoat-Amory: May I ask
about cluster munitions, which are a particularly vicious form
of weapon because a proportion of the bomblets do not explode
at the time and contaminate civilian areas? Some of us have seen
that in the aftermath of the war in South Lebanon. It is an horrific
form of warfare and leaves a terrible legacy, contaminating civilian
areas. The Foreign Office report refers to it, and we are engaged
in a number of international initiatives. Will you clarify the
British position? Do you wish to see a complete ban on the production,
stockpiling and use of such weapons?
Lord Malloch-Brown: There are
two negotiating tracks. The first is a more conventional track,
which involves a wide range of Government parties. The second
involves the hawks, who are pressing for a treaty—known
as the Oslo process—that is as broad as possible, as soon
as possible. We are part of that process. It began last year and
it is hoped that a draft treaty will be ready for countries to
ratify before the year is out. We are one meeting away from the
completion of that process and there are some outstanding issues.
One is the definition of what range of cluster munitions should
be banned. At the moment we are holding to line that it is not
the category of weapons per se that needs to be banned, but those
weapons that cause unacceptable harm to civilians because of two
particular features. Those features are first, the lack of a self-destruct
mechanism and secondly, an aiming system that essentially means
that they are fired blind, without those who fire them being able
to see the target—something that is another cause of indiscriminate
civilian casualties.
Why are we taking a narrower definition than
just the whole category? There are a number of reasons. First,
there are still cluster munitions in the British arsenal. They
have not been used recently by the British in either Iraq or Afghanistan,
due to the nature of the conflict in those two theatres. In asymmetrical
warfare, where those attacking are in the midst of civilian populations
and are not themselves employing heavy armament, cluster munitions
are inappropriate weapons, as they are essentially supposed to
be used against people in tanks and other armaments of that kind.
We were reluctant to give up the ability to
use any such weapons in case we found ourselves again in a war
against people using vehicles such as tanks and other equipment
against us. Secondly, we were also extremely worried by the interoperability
issue, and we would not want to rule out the use of weapons that
other NATO members were using—I am told that that poses
real military difficulties for us. Thirdly, there are issues about
responsibility for dealing with the aftermath of the use of these
weapons. Those are not consistent with how it was dealt with in
the landmines treaty, and it opens up issues and exposes countries
to unreasonable claims. These are all negotiating issues that
we hope can be resolved in the final meeting of the Oslo process.
Countries such as Norway, which does not have such weapons, understand
our issues and, in the desire to get a universal treaty that we
can all sign, will come sufficiently far towards us so that we
can have a meeting of minds and get a treaty.
Q54 Mr. Heathcoat-Amory: Can you
comment on a specific, cluster munitions system called CRV-7?
It is helicopter launched and the British forces possess it, but
it does not self-neutralise or self-destruct. It entails exactly
the hazards against civilians that I instanced. How can we argue
plausibly for a worldwide ban on these weapons, when we are going
to retain precisely the type of weapon that can cause damage to
civilian areas? It is inconsistent. I understand that we do not
want to do something that NATO allies do not do, but this is a
weak argument. This is an urgent matter. It is a real weapons
system that causes unimaginable grief after a war has ended. Should
we not take a lead on this in any Foreign Office policy that calls
itself ethical?
Lord Malloch-Brown: Of the two
issues that I raised earlier, one was the self-destruct mechanism,
which you rightly say the CRV-7 does not have. The second was
the issue of line of fire, so that someone can see who they are
targeting. It is when neither of those conditions are in place
that we believe the weapons count as so-called "dumb"
cluster munitions. We feel that because this example does not
have that second feature, it can be used responsibly. It is used
as nine shells in a weapon that has more rounds in it and is fired,
as you say, from a helicopter. There is a debate about whether
it is properly called a cluster munition or a sub-munition. This
is way beyond my technical level of knowledge, but we are looking
at the issue because we would not want this treaty to fail on
a point such as that. At the moment, it is in the Army's armoury,
so to speak. It is not being used currently, but at the moment
it has a retirement date of 2020. We are looking at it and I take
the point.
Q55 Mr. Illsley: You used a phrase
earlier that these weapons would be used responsibly. I would
suggest that it is a contradiction in terms that any cluster munitions
could be used responsibly, even if used in a battlefield scenario.
When the battle has moved away, the area will be populated by
civilians at some point.
Lord Malloch-Brown: You can tell
that I am not entirely comfortable with this argument either.
These CRV-7s apparently have a less than 2% failure rate, which
means that only a very small proportion of them would be lying
on a battlefield unexploded. The M85s that were used in southern
Lebanon had something like a 25 or 30% failure rate and were used
in crowded civilian areas. The battle context was different and
the failure rate very high.
In the House of Lords, I used the term "unacceptable
casualties", which falls into the same category as "responsible".
That term was derived by the Oslo process because ultimately all
weapons are dangerous; you never want to use them and there are
nearly always tragic, collateral casualties among innocent civilians.
It is always a matter of balancing what weapon you think it is
reasonable to use and what weapon is likely to minimise, although
unfortunately never eliminate, civilian casualties.
Q56 Sir Menzies Campbell: May I ask
you about the issue of interoperability? The only other NATO country
that we are talking about is the United States. Is there anything
to indicate that the Unites States might be willing to abandon
cluster munitions? If not, the interoperability issue will persist
without a time limit.
Lord Malloch-Brown: I think that
Germany and France also have cluster munitions, but we should
double-check that. It is not only the US, but that is the country
that is least willing to move on the issue. France and Germany
are in a position rather akin to our own.
Q57 Sir Menzies Campbell: On the
process, if interoperability is a determinant, the position of
the United States is something over which we do not appear to
have much influence. If we are concerned with continuing to be
interoperable with the United States, that concern would persist
irrespectively.
Lord Malloch-Brown: If you got
to the point of having a reasonable treaty ready for global ratification
that took a balanced view on some of these issues and was not
just a complete blanket ban with a very broad definition of what
counted as a cluster munition, to the point that the US and others
felt that their ability to wage conventional warfare against a
conventional opponent would be compromised, our profound hope
is that we could carry the US and others with us.
Q58 Sandra Osborne: May I ask about
the issue of rendition? When it was revealed in February that
two detainees had been transported on US flights that had refuelled
at Diego Garcia, the Committee wrote to the Foreign Secretary
asking a number of questions. He said, "We do not consider
that an empty flight transiting through our territory falls into
this category". By "this category", he meant rendition.
What legal advice have the Government taken on whether they have
a duty in relation to flights on the way to or from rendition
when there is no a detainee on board?
Lord Malloch-Brown: Obviously
the case of Diego Garcia shows that we do indeed conclude that
we have a duty. I think that our policy is clear—it is not
just that we ourselves do not render people in breach of legal
obligations, but we consider all circumstances in requests for
rendition through the UK or the overseas territories. We would
grant permission only if it was in accordance with our domestic
law and our international obligations. That is why we are so anxious
to ascertain whether our territory has been used for other cases
of rendition.
Q59 Sandra Osborne: Yes, but the
Foreign Secretary is suggesting that as long as the flight is
empty—as long as it is going to and from—it may as
well be going to and from and that is more or less okay.
Lord Malloch-Brown: I do not think
that it is more or less okay, but there is a limit to what we
can do effectively to monitor empty planes, whose purposes it
is not really reasonable for us to investigate. If an American
military flight requests refuelling or access and is empty of
any passengers, I am not sure that it is possible for us to demand
what it might be doing on its return flight.
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