Memorandum submitted by the Foreign and
Commonwealth Office
"THE RESPONSIBILITIES OF THE FCO
FOR SECURING THE HUMAN RIGHTS OF BRITISH CITIZENS AND OTHERS OVERSEAS"
TERMS OF
REFERENCE
1.1 The Terms of Reference given by the
Select Committee on Foreign Affairs (FAC) for the inquiry are
as follows:
"The responsibilities of the FCO for securing
the human rights of British citizens and others overseas, including:
— The case of Binyam Mohamed
— Allegations of UK complicity in torture
— Extraordinary rendition (including the
possible role of Diego Garcia)
— Transfer of prisoners in Iraq and Afghanistan
— Allegations of abuse at the British Embassy
in Iraq
— The oversight of contractors, including
private security companies, employed by the FCO and UK Posts overseas"
THE CASE
OF BINYAM
MOHAMED
(a) Guantanamo Bay
2.1 The UK has long held that the indefinite
detention of detainees is unacceptable and that the Guantanamo
Bay detention facility should be closed. We welcome President
Obama's executive order to close Guantanamo Bay within one year
and stand ready to work closely with the US in ensuring that both
potential security and human rights concerns posed by the release
of the detainees are appropriately addressed.
2.2 The UK has already made a significant
contribution to reducing the number of detainees in Guantanamo
Bay by taking back nine UK nationals and five former legal residents,
and we have requested the release and return of one further individual.
We have shared these experiences with our European partners as
they think about what steps they might take and we continue to
encourage them to follow our lead in taking back detainees. There
are no plans to settle any more detainees in the UK.
2.3 Over the past year much attention has
focused on the case of Binyam Mohamed, who was legally resident
in the UK prior to his detention, and whose release and return
we requested in August 2007. Following extensive discussions with
the US throughout 2008 and in early 2009, Mr Mohamed was
released from Guantanamo Bay and returned to the UK on 23 February
2009. During the course of these discussions we also made clear
repeatedly our concern about Mr Mohamed's medical condition and
welfare at Guantanamo Bay, and carried out two welfare visits
in June 2008 and February 2009.
(b) Judicial Review
2.4 Discussions with the US authorities
on Binyam Mohamed also focused on ensuring that material potentially
relevant to his defence in any trial in the US was provided to
his legal team by the US authorities. This follows judicial review
proceedings brought against the UK government by Mr Mohamed's
lawyers in order to obtain this information. In preparing for
the judicial review, government departments discovered a limited
amount of information which we determined was potentially relevant
and could support his defence. The Government took the view that
Mr Mohamed's lawyers should have access to this information. However,
public disclosure by the UK of US material would breach the trust
and confidentiality at the heart of our intelligence relationship
with the US and other intelligence partners. We therefore made
strenuous efforts to assist Mr Mohamed's lawyers in obtaining
this information through the US legal system. We welcomed the
decision of the US to disclose documents that were the subject
of the court proceedings here to Mr Mohamed's US lawyers. The
charges against Mr Mohamed at Guantanamo Bay under the Military
Commissions Act were dropped without prejudice in October 2008.
2.5 There have been calls for further public
disclosure of these documents. We have been clear in private and
in public that we do not object to the release of the US material
by the US. But it must be for the US to decide whether to disclose
their own intelligence. The court proceedings are ongoing.
(c) Allegations of Mistreatment
2.6 We have taken Mr Mohamed's allegations
of mistreatment during his detention seriously and raised them
with the US in February 2008, in talks focused on his release
and return. Following this we wrote to the US State Department
on 1 May 2008 to ask that the allegations be examined
thoroughly. Following the US response that the allegations were
"not credible", we again wrote to the State Department
asking to be kept informed of any developments.
2.7 There have been calls for a judicial
inquiry into allegations of UK complicity in Mr Mohamed's mistreatment;
there are already three investigations underway. Firstly, the
question of possible criminal wrongdoing was referred by the Home
Secretary to the Attorney General for her consideration, as an
independent Minister of justice, who has since invited the police
to investigate further. Secondly, as outlined in section 3 below,
the Prime Minister made a Statement to Parliament on 18 March
2009 outlining work to be done in response to allegations
about the involvement of UK personnel in alleged mistreatment
of individuals in detention overseas. This included asking the
Intelligence and Security Committee (ISC) to consider any new
developments and relevant information, since their 2005 Report
on Detention and their 2007 Report on Rendition. Finally
the UK Courts will also be examining all relevant issues in detail
as a result of the civil damages claims brought against the Government
by a number of the individuals, including Mr Mohamed, who have
returned from Guantanamo Bay.
ALLEGATIONS OF
UK COMPLICITY IN
TORTURE
3.1 The UK has been clear in its opposition
to torture. The Government's policy is not to participate in,
solicit, encourage or condone the use of torture or cruel, inhuman
or degrading treatment or punishment for any purpose. Given this
position we have taken very seriously a number of allegations
which have been made in recent months about the involvement of
UK personnel in alleged mistreatment of individuals in detention
overseas.
3.2 On 18 March 2009, the Prime Minister
made a Written Ministerial Statement to Parliament addressing
these allegations. He made clear the outstanding work that our
security and intelligence services and armed forces undertake
to make Britain more secure, and laid out work to be done to address
the allegations that have been made.
3.3 This work will include publishing the
guidance given to intelligence officers and service personnel
about the standards that we apply during the detention and interviewing
of detainees overseas, once this guidance has been consolidated
and reviewed by the Intelligence and Security Committee. Sir Peter
Gibson, who is a former Lord Justice of Appeal and current Intelligence
Services Commissioner, will be invited to monitor compliance with
the guidance and report to the Prime Minister annually.
3.4 In addition, the Intelligence and Security
Committee have been invited to consider any new developments and
relevant information, since their 2005 Report on Detention
and their 2007 Report on Rendition, building on the follow-up
work that they have already undertaken.
3.5 These measures are in addition to mechanisms
already in place to ensure accountability, provide oversight and
to appropriately address any cases of alleged mistreatment that
come to our attention.
3.6 The Government has made a clear commitment
that wherever allegations of wrongdoing are made, they are taken
seriously and investigated appropriately.
3.7 Policy and operational oversight of
the work of the intelligence and security Agencies is essential.
The ISC has a statutory responsibility to provide scrutiny of
the policy, administration and expenditure of the intelligence
and security agencies. It has addressed issues of detention and
mistreatment in past reports and, as mentioned above, has been
asked by the Prime Minister to build on its existing work by considering
more recent developments and new information. The Intelligence
Services Commissioner and the Intercept of Communications Commissioner
provide oversight of the operations of the Agencies. The Commissioners
are able to visit the Agencies to discuss any case they wish to
examine in more detail. They must, by law, be given access to
whatever documents and information they need and at the end of
each reporting year they submit reports to the Prime Minister.
These reports are subsequently laid before Parliament and published.
3.8 The Investigatory Powers Tribunal, established
in October 2000, can investigate complaints by individuals about
the Agencies' conduct towards them or about interception of their
communications. Anyone, regardless of nationality, can complain
if they believe that their communications or human rights have
been violated or abused by any of the Agencies.
EXTRAORDINARY RENDITION
(INCLUDING THE
POSSIBLE ROLE
OF DIEGO
GARCIA)
4.1 The FCO's Human Rights Report outlined
the UK's position on "extraordinary rendition" to torture,
and reported on action taken by the Government following the receipt
of new information from the US in February 2008 that two
rendition flights had passed through Diego Garcia in 2002. There
have been no new developments on this issue since the publication
of the report.
TRANSFER OF
PRISONERS IN
IRAQ AND
AFGHANISTAN
a) Iraq
5.1 The last two Iraqi nationals held in
UK military detention, Mr al-Saadoon and Mr Mufdhi (EOD2), were
transferred to the Iraqi authorities on 31 December 2008.
They had been detained on behalf of the Iraqi authorities for
their alleged involvement in the killing of two UK service personnel.
UNSCR 1790, which expired on 31 December, had previously
provided the legal basis for this detention. The transfer came
in response to several requests from the Iraqi authorities and
was carried out following the rejection by the UK courts of judicial
review proceedings brought on behalf of both individuals. Assurances
were received from the Iraqi Government that the two detainees
would be treated humanely in Iraqi custody, in accordance with
Iraq's legal obligations, and this has subsequently been reconfirmed
by the Deputy Minister of Justice. Verbal assurances were also
given that they would not receive the death penalty, should they
be found guilty, although the death penalty is not in itself deemed
illegal under international law.
5.2 The UK took its power to intern in Iraq
seriously and only used it when absolutely necessary. The International
Committee for the Red Cross (ICRC) and the Iraqi Ministry of Human
Rights (MoHR) have had regular and open access to our detention
facility and to our internees. Wherever possible, we ensured that
those detained had their cases heard in the Iraqi courts. The
US holds around 15,000 detainees, down from a peak of 27,000.
The security agreement with the GOI will see these either tried
by the Iraqi system or released.
b) Afghanistan
5.3 In Afghanistan, the UK military operate
as part of NATO's International Security Assistance Force, whose
mandate is set out in UN Security Council Resolutions 1386 (2001)
and 1510 (2003) and was most recently renewed in UNSCR 1833 (2008).
ISAF is authorised to use "all necessary measures to fulfil
its mandate", which is to assist the Government of Afghanistan
in the maintenance of security in Afghanistan.
5.4 Individuals detained by UK forces and
deemed to be a security threat are detained under ISAF Rules of
Engagement, only for such period as is reasonably necessary to
transfer them to the Afghan authorities for prosecution, if appropriate.
British forces release those who are deemed not to be a security
threat after initial questioning. Detainees who are not released
are transferred into Afghan custody at the earliest opportunity
where such facilities exist. ISAF's aim is to hand over any detainee
within 96 hours.
5.5 The UK commenced detention operations
in Helmand Province in early 2006. Arrangements set out in a Memorandum
of Understanding with the Government of Afghanistan provide assurances
that detainees transferred into Afghan custody will be treated
in accordance with Afghanistan's international human rights obligations.
These include prohibiting torture and cruel, inhuman and degrading
treatment and punishment, protection against torture and using
only such force as is reasonable to guard against escape. The
MOU also provides that detainees will not be transferred into
a third country or to a third country without UK agreement and
will not face the death penalty. This MOU, and a subsequent exchange
of letters,[1]
provide full access to the transferred detainees for UK officials
and a number of other bodies including the International Committee
of the Red Cross and Red Crescent, the Afghan Independent Human
Rights Commission and relevant human rights institutions within
the UN system.
5.6 The UK transfers detainees to the National
Directorate of Security (NDS), which is the Afghan domestic and
foreign intelligence service. It has a wide range of responsibilities
including detaining, investigating and prosecuting individuals
who have committed security offences. In addition to the assurances
contained in the MoU, the Royal Military Police conduct regular
visits to the NDS facilities to monitor the standards of those
facilities and to check on the welfare of the transferred detainees.
Prior to the commencement of detention operations in early 2006,
UK forces had only detained a total of seven individuals. 538 people
have been detained as of 28 April 2009. 282 have been
transferred to the Afghan authorities and 256 have been released.
5.7 The FCO, through the Stabilisation Aid
Fund (SAF), has provided capacity building support to the NDS.
This includes a programme of training to the NDS by a team from
HM Prison Service geared to delivering the UN Minimum Rules on
the Treatment of Prisoners.
REVIEW OF
DETENTION RECORDS
IN IRAQ
AND AFGHANISTAN
6.1 In February 2008, allegations were made
that persons captured by UK forces in Iraq were transferred to
US detention facilities and were mistreated and removed unlawfully
from Iraq. In response, the then Secretary of State for Defence
launched a review of records of detention in Iraq and Afghanistan.
6.2 This review was completed in early 2009 and
the Secretary of State for Defence made an oral Statement to Parliament
on 26 February setting out the findings. As a result of this
review, the Parliamentary record has been corrected in a number
of instances where it was discovered that inaccurate statistics
had been provided.
6.3 During the final stages of the review
of records of detention, information was discovered about one
case relating to a security operation conducted in Iraq in February
2004. This period saw an increased level of insurgent activity
as the transfer to Iraqi sovereignty drew closer. During the operation,
two individuals were captured by UK forces in the Baghdad area.
They were transferred to US detention, in accordance with normal
practice, and subsequently moved by the US to a detention facility
in Afghanistan.
6.4 Following consultations with US authorities,
it was confirmed that these individuals remain in custody in Afghanistan.
They were members of Lashkar-e-Taiba, a proscribed organisation
with links to al-Qaeda. The US Government has informed us that
those individuals were moved to Afghanistan because of a lack
of relevant linguists to interrogate them effectively in Iraq.
The US has categorised them as unlawful enemy combatants and continues
to review their status on a regular basis. We have been assured
that the detainees are held in a humane, safe and secure environment
that meets international standards that are consistent with cultural
and religious norms. The International Committee of the Red Cross
has had regular access to the detainees.
6.5 A due diligence search by US officials
of the list of all those individuals captured by UK forces and
transferred to US detention facilities in Iraq has confirmed that
this was the only case in which individuals were subsequently
transferred outside Iraq.
6.6 In his Statement, the Secretary of State
for Defence made clear that, in retrospect, the transfer to Afghanistan
of these two individuals should have been questioned at the time.
We have discussed the issues surrounding this case with the US
Government. They have reassured us about their treatment but confirmed
that, as the individuals continue to represent significant security
concerns, it is neither possible nor desirable to transfer them
to either their country of detention or their country of origin.
ALLEGATIONS OF
ABUSE AT
THE BRITISH
EMBASSY AT
IRAQ
7.1 We expect our contractors to maintain
high standards of professionalism. We do not tolerate misconduct
in any form.
7.2 The 2009 allegations of abuse at
the Baghdad Embassy were reported to London by senior management
at the Embassy within an hour of them coming to light. A joint
investigation into them by the FCO and the contractor KBR was
launched immediately.
7.3 The investigation is now complete. It
was detailed, thorough and found no evidence of sexual abuse,
harassment or misconduct. It did however find evidence of gross
misconduct by certain locally employed KBR Iraqi staff, and failings
in management standards. We are working closely with KBR to address
these issues.
7.4 We can confirm that five KBR Iraqi staff
were dismissed for gross misconduct and an expatriate KBR manager
was removed from the FCO contract.
7.5 We already have robust processes for
holding contractors to an acceptable standard of behaviour, including
compliance with UK anti-discrimination legislation, and for monitoring
their performance and compliance. But we have learned and implemented
many lessons from our dealings with contractors in Iraq and Afghanistan
over the years.
7.6 It is not practical for the FCO to get
involved in every single case. We continue to believe that allegations
made against contract staff should primarily be a matter for the
contractors to deal with. But as the fact that we launched a joint
investigation into the latest allegations shows, there will be
times when we judge it right to take a joint approach.
7.7 We do not intend to reopen investigations
into the 2007 allegations about sexual abuse and harassment
by and against KBR staff. The conduct and outcome of KBR's investigation
into those allegations was reviewed by a new Embassy senior management
team in 2008. FCO senior officials accepted the Embassy's recommendation
that there were no grounds for reopening the issue.
THE OVERSIGHT
OF CONTRACTORS,
INCLUDING PRIVATE
SECURITY COMPANIES,
EMPLOYED BY
THE FCO AND
UK POSTS OVERSEAS
8.1 The oversight of contractors, including
private security companies, contracted (not employed) by the FCO
and UK posts as with all contractor services, is currently undertaken
during the tendering process for our contracts, throughout the
contract's lifetime and on completion of that contract with a
specific contractor.
8.2 The Government ensures that all contracts
are subject to a rigorous selection process so that we obtain
best value for money. Any company engaged by HMG needs to pass
through a stringent and transparent procurement process in line
with Public Procurement Guidelines and best practice.
8.3 All Private Military Security Companies
(PMSC) contracts are subject to ongoing performance monitoring
and contract management by the FCO and other government departments
concerned, both in country on-the-ground and from the UK, in respect
of all aspects of the delivery and operation of these contracts.
FCO monitors performance by a mixture of Key Performance Indicators,
regular visits by the Overseas Security Advisors to FCO Posts
who review and report on the PMSCs' performance, regular review
meetings in London with PMSCs, and monitoring expenditure against
a fully profiled budget.
8.4 In addition, the FCO reviews requirements
on completion of the contract and prior to re-tendering in order
to highlight any improvements that could be made as a result of
experience or lessons learned.
8.5 The Foreign Secretary announced the
Government's launch of a public consultation on its preferred
option of promoting high standards of Private Military and Security
Companies on 24 April. Our preferred option is a composite
package of industry self-regulation, international cooperation,
and our leverage as a key buyer to drive up standards globally.
13 May 2009
1 Multi-lateral Exchange of Letters with the Afghan
Authorities dated 6 Sept 2007 Back
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