Further submission from the Secretary
of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth
Office
Thank you for your letter of 17 June following
up on a number of issues that we discussed during my evidence
session on 16 June. I am of course happy to provide further
information on these issues and to address the additional questions
highlighted in your letter which we did not have time to cover.
FURTHER INFORMATION
ON ISSUES
RAISED IN
THE EVIDENCE
SESSION
1. Whether the prior consent of the British
Government would be required for the US base on Diego Garcia to
be used to victual ships outside the Island's territorial waters?
(Q105)
The territorial waters of Diego Garcia extend
to three nautical miles. Replenishment at Sea (RAS) requires a
stable transfer system between the two vessels concerned. This
would usually be provided by an auxiliary vessel. No such vessels
are currently berthed in Diego Garcia and consequently all vessels
have to come into port to be replenished. It is highly unlikely
therefore that re-victualing outside the port would occur. Under
the UK/US Exchange of Notes which govern the use of the British
Indian Ocean Territory for Defence purposes,the US undertakes
to inform the UK of intended movements of its ships in BIOT territorial
waters in "normal circumstances".
2. What is the Government's assessment of
the UK's obligations under domestic and international law, particularly
the UN Convention Against Torture and the Human Rights Act, to
take action in response to instances of suspected torture and
prevent torture being carried out by other states? (Q134)
To clarify my answer given during the evidence
session, the UN Convention Against Torture and the European Convention
on Human Rights, which is incorporated directly into UK law by
the Human Rights Act, do not impose a positive obligation to report
on or seek to prevent acts of torture carried out by other states
abroad. The UK is, however, very clearly committed to the prevention
of torture. Our embassy staff are also instructed to report concerns
over mistreatment in other countries. We take any such reports
very seriously and consider carefully what steps we can and should
take to address such issues. If UK citizens commit or participate
in acts of torture overseas they will be subject to prosecution
in the UK. We also use a combination of project work and diplomatic
activity to build other states' capacity and awareness of human
rights, and encourage ratification and implementation of the Optional
Protocol to the Convention Against Torture, including the establishment
of national preventive mechanisms.
3. What is the Government's considered view
of the legality of the transfer from Iraq to Afghanistan of two
detainees handed over to the US in 2004? (Q143)
The Government's view is that the transfer of
these two detainees should not have taken place. The US believes
they had legal authority to make this transfer. Pursuant to President
Obama's Executive Orders of 22 January 2009, however, the
United States is currently reviewing its policy in this area.
We welcome this review and look forward to its outcome. In the
particular case in question, we have sought and received assurances
about the welfare of the individuals concerned and have put into
place safeguards and guarantees to prevent repetition.
During our discussion, Ken Purchase asked whether
we are able to provide additional information on the identities
of the two individuals transferred by the United States from Iraq
to Afghanistan in 2004. We are unable to provide further information
on this matter beyond that given by my Right Hon. Friend the former-Secretary
of State for Defence in his statement of 26 February 2009.
I would also like to take the opportunity to
explain the state of work that is being undertaken in pursuit
of the Prime Minister's commitment to compile and publish our
guidance to Agency and service personnel. As I outlined in my
letter of 15 June, the Cabinet Office are in the process
of consolidating the guidance and it will then be reviewed by
the ISC. We have already provided the ISC with all of the potentially
relevant original material to facilitate their work. Once they
have reviewed the consolidated guidance we aim to publish as soon
as is practicable.
4. Whether staff of any private military
security company working for the FCO have diplomatic immunity
conferred upon them? (Q177)
Some individuals contracted to the FCO in Iraq
and Afghanistan to undertake private security contracts for the
protection of our diplomatic missions do have certain immunities,
including in particular immunity from criminal jurisdiction, under
the Vienna Convention on Diplomatic Relations.
5. "The Shia family law" (Q151)
We, along with other international partners,
made our concerns about the Shia Personal Status Law clear to
the Afghan government at a senior level. The Prime Minister raised
the issue with President Karzai. We welcomed President Karzai's
announcement on 27 April that the law would be changed to
bring it in line with the Afghan Constitution, which guarantees
equal rights for women, and the international treaties to which
Afghanistan is a party.
On 20 June 2009, the Minister of Justice
met with female representatives of the Afghan Parliament and civil
society and told them that his Ministry has now amended the Law.
The amendments were made following written recommendations by
Afghan civil society (the Afghan Women's Network), Katib University
and moderate Ulema (religious scholars).
We understand the amendments made by the Ministry
of Justice have added around sixty articles and removed around
ten from the Law. Language was also added to clarify the meaning
of certain articles. We understand that the Afghan Women's Network
view the amended draft as broadly acceptable, and contentious
articles, including the provision appearing to legalise rape,
had been removed. The Law is also being reviewed by the Supreme
Court.
President Karzai has indicated that the Law
will next be sent back to the Afghan Parliament for approval (in
time for the new session of Parliament, beginning 20 July
2009).
The Law continues to cause controversy on both
sides. The outcome is still uncertain, therefore we, along with
our international partners and Afghan civil society, will continue
to follow the passage of the Law closely. We will lobby the Afghan
Government whenever appropriate, to help ensure the final Law
respects women's rights and does not undo progress made since
2001.
INFORMATION ON
ISSUES NOT
RAISED IN
THE EVIDENCE
SESSION
1. The Government's position on the UN Convention
on enforced disappearances, particularly whether and when the
UK intends to sign the Convention and if it is actively persuading
other states to do the same.
The UK played a supportive role throughout the
drafting process of the Convention against Enforced Disappearance
and we welcome the fact that it was adopted by consensus at both
the UN Human Rights Council and the UN General Assembly in 2006.
Together with EU partners, we have been supportive of attempts
to encourage other states to consider participation in the Convention.
The Government is currently examining the potential
impact of the Convention on the law of the United Kingdom. In
particular, lawyers are analysing the extent to which common law
provisions may need to be replicated in statute law, and the introduction
of one or more specific criminal offences. If the Government decides
to ratify the Convention, these changes to the law would require
primary legislation, which would be introduced when Parliamentary
time allowed. Decisions would also need to be taken in due course
on whether the United Kingdom required any reservations or declarations
upon ratification. The complexity of these issues under consideration
does not permit a deadline to be set at this time for completion
of this analysis.
2. Though the legal argument is now settled
in the Government's favour, do you accept the moral argument for
allowing the Chagossian people to return in some way to their
homeland? What prospect is there for this in the future? Do you
agree with Jack Straw's view, expressed in an interview on Radio
4 on 12 May 2009, that my Committee should have been
consulted on the Orders in Council made in 2004?
As I said in my statement on the House of Lords
judgment on 22nd October 2008, the Government regrets the way
the resettlement of the Chagossians was carried out in the 1960s
and 1970s and at the hardship that followed for some of them.
We do not seek to justify those actions and do not seek to excuse
the conduct of an earlier generation. But the Courts have previously
ruled that fair compensation has been paid and that the UK has
no legal obligation to pay any further compensation; and British
citizenship was granted to a large number of Chagossians under
the British Overseas Territories Act 2002. The appeal to the House
of Lords was not about what happened in the 1960s and 1970s. It
was about decisions taken in the international context of 2004.
This required us to take into account issues of defence security
of the archipelago and the fact that an independent study had
come down heavily against the feasibility of lasting resettlement
of the outer islands of BIOT. The Courts have also previously
ruled that fair compensation has been paid and that the UK has
no legal obligation to pay any further compensation; and British
citizenship was granted to a large number of Chagossians under
the British Overseas Territories Act 2002.
As my predecessor Jack Straw wrote to your predecessor
Donald Anderson in 2004, we will certainly try to send draft Orders
in Council relating to Overseas Territories' Constitutions to
your Committee at least 28 sitting days before they are made
but that may not always be possible. In this case, he pointed
to the need to preserve complete confidentiality to avoid the
risk of any attempt to circumvent the Orders before they came
into force.
3. Can assurances between the UK and Iraq
about the treatment of prisoners be relied upon? Are you satisfied
that in Iraq, the UK has discharged its obligations under the
European Convention on Human Rights and upheld the authority of
the European Court of Human Rights, given that the Government
ignored an interim measure request not to transfer two prisoners
to the Iraqi authorities in December 2008?
The Foreign and Commonwealth Office obtained
verbal assurances from President of the Iraqi High Tribunal, President
Aref, that a death sentence would be commuted, as well as written
assurances from Deputy Justice Minister Posho that the two detainees
will be treated humanely whilst in Iraqi detention. We are satisfied
that the Government of Iraq is aware of its earlier assurances
and have no reason to believe that they are not being adhered
to.
On the transfer of two detainees to the Iraqi
authorities in December 2008, the Government considers that it
has not breached its obligations under the European Convention
on Human Rights. Proceedings in Strasbourg are ongoing.
The Guardian, 18 June
You also ask about an article in The Guardian
on 18 June. The article contains no new information. It refers
to material that was made public in 2005 and was published
in the ISC's Report on Detainees in that year. Paragraph 47 of
that Report makes clear that the quotations used by The Guardian
are taken from instructions sent to Agency staff in Afghanistan
in January 2002. Those instructions were as follows:
"With regard to the status of the prisoners,
under the various Geneva Conventions and protocols, all prisoners,
however they are described, are entitled to the same levels of
protection. You have commented on their treatment. It appears
from your description that they may not be being treated in accordance
with the appropriate standards. Given that they are not within
our custody or control, the law does not require you to intervene
to prevent this. That said, HMG's stated commitment to human rights
makes it important that the Americans understand that we cannot
be party to such ill treatment nor can we be seen to condone it.
In no case should they be coerced during or in conjunction with
an SIS interview of them. If circumstances allow, you should consider
drawing this to the attention of a suitably senior US official
locally.
It is important that you do not engage in any
activity yourself that involves inhumane or degrading treatment
of prisoners. As a representative of a UK public authority, you
are obliged to act in accordance with the Human Rights Act 2000 which
prohibits torture, or inhumane or degrading treatment. Also as
a Crown Servant, you are bound by Section 31 of the Criminal
Justice Act 1948, which makes acts carried out overseas in the
course of your official duties subject to UK criminal law. In
other words, your actions incur criminal liability in the same
way as if you were carrying out those acts in the UK."
You also ask about the compatibility of this
statement with the UK's obligations. As you will understand, this
question may form part of the consideration of an ongoing police
investigation. Questions relating to this need to await the conclusions
of that investigation.
July 2009
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