Further submission from Amnesty International
UK
THE FCO'S
RESPONSIBILITIES FOR
SECURING THE
HUMAN RIGHTS
OF BRITISH
CITIZENS AND
OTHERS OVERSEAS
Summary
— ***There needs to be a full, effective,
independent and impartial investigation into UK involvement in
rendition, secret detention and enforced disappearance. — Urgent
work is required to close Guantánamo Bay. It is critical
that in seeking to close Guantánamo, detainees are not
transferred to other detention centres of concern. The Government
should change its position on Ahmed Belbacha given his links with
the UK and the risk of torture or other ill-treatment associated
with returning him to his native Algeria. The Government should
also press the USA for the urgent return of Shaker Aamer, who's
health is believed to be seriously at risk. — The Government
should broaden its understanding of rendition to include flights
believed to have been on the way to or from a rendition (the rendition
circuit) and not just those with detainees on board. There is
also an urgent need to obtain details of what happened to the
two men now known to have been rendered through Diego Garcia.
The Government should also press the USA to make a full disclosure
of its rendition and secret detention programme and hold to account
those involved in these practices. — It is extraordinary
that the Government, which has been a strong advocate of the elimination
of torture, should now be undermining this work by seeking to
circumvent the principle of non-refoulement through its policy
of deportations with diplomatic assurance. The Government should
reaffirm its commitment to the absolute obligation under international
law not to return any person to a country where they face a real
risk of torture or ill-treatment.
— The Government should give urgent
attention to signing and ratifying the International Convention
for the Protection of All Persons from Enforced Disappearance.
This Convention could provide important protection from rendition
and secret detention and signing, and in due course ratifying
it would send an important signal of the Government's position.
INTRODUCTION
1. This submission will look at broad issues
relating to terrorism and counter terrorism, including the relevant
sections of the FCO's Annual Report on Human Rights 2008 (the
Report). It will also consider the FCO's responsibilities for
securing the human rights of British citizens and others overseas.
Amnesty International (AI) will make an additional short submission
to the inquiry on issues relating to FCO's Human Rights Annual
Report.
2. The presence of counter-terrorism among the
FCO's policy goals reflects the seriousness of the threat from
terrorism and the obligation on all states to act to protect their
citizens. AI unequivocally condemns deliberate attacks on civilians
and other human rights abuses by armed groups. Attacks by armed
groups which are indiscriminate or which deliberately target civilians
are grave human rights abuses and can also be crimes under international
law.
3. AI calls on all armed groups and individuals
to stop using violence against civilians and calls on their leaders
to denounce human rights abuses including torture and other ill-treatment,
hostage taking, indiscriminate attacks, or direct attacks on civilians.
It also calls for prompt impartial investigations of such abuses
and for the perpetrators to be brought to justice in accordance
with international standards.
4. This last point is crucial. AI has documented
the grave human rights abuses committed by groups, however in
recent years it has also documented a wide range of abuses relating
to state counter-terrorism policies. Unless governments across
the world respond to the threat of international terrorism in
a manner that is fully grounded in respect for universal human
rights and the rule of law, they risk undermining the values they
seek to protect and defend as well as the counter-terrorism policies
they seek to implement.
BINYAM MOHAMED
AND THE
NEED FOR
A BROAD
INVESTIGATION
5. ***
6. It is crucial that where sufficient admissible
evidence of individual criminal wrongdoing is uncovered, such
investigations should be capable of leading to individual criminal
prosecutions. Therefore, AI welcomes the investigation by the
Metropolitan Police into possible criminal wrongdoing in relation
to the case of Binyam Mohamed.
7. However, such police investigation is
unlikely to ensure sufficient scrutiny. Its mandate will not extend
to broad policy issues or serious human rights violations except
where they relate directly to individual criminal wrongdoing.
Moreover, the findings may not be made public and such an investigation
will not be capable of ensuring that victims are given the full
and effective reparation to which they are entitled under international
human rights law.
8. AI has similar concerns about the steps
set out by the Prime Minister on 18 March 2009, which include
an investigation by the Intelligence and Security Committee (ISC).
AI believes that these measures fall far short of the properly
independent investigation which is needed into what is now a large
number of allegations of UK complicity in torture. AI has particular
concerns about reliance on the ISC to investigate this area as
it lacks meaningful independence given that it is appointed by
and reports to the Prime Minister.
9. There now needs to be a full, effective,
independent and impartial investigation into UK involvement in
rendition, secret detention and enforced disappearance.
10. The investigation must have the powers
required to be effective in terms of evidence and testimony. Given
the nature of the material likely to be considered by such an
investigation, it is inevitable that claims will be made that
information either cannot be disclosed to the investigation or
cannot be made public. Decisions about access to material should
be made independently (for example by a member of the judiciary).
The Government should ensure that:
— All hearings are public except where
specific evidence or submissions cannot be dealt with in open
hearings.
— The scope, methods and findings of
any investigation be made public.
— No claim of confidentiality on grounds
of national security, state secrecy, diplomatic relations, or
witness protection, is used to justify failure to disclose information
or evidence of serious human rights violations.
11. Finally, AI considers that any inquiry
established under the Inquiries Act 2005 would be incapable of
satisfying these principles and ensuring a genuinely independent
and effective investigation. This is because the Act allows a
Government minister to restrict public attendance at inquiry hearings
and prevent the public disclosure of evidence if the minister
considers it in the public interest.
GUANTÁNAMO
BAY
12. The Report notes that the "UK has
long considered that the circumstances in which detainees are
currently held indefinitely at Guantánamo Bay are unacceptable
and that the detention facility should be closed." The Report
also sets out the steps it has taken on behalf of UK nationals
and residents including Binyam Mohamed.
13. The Government was extremely slow to make
sufficiently strong and public criticism of Guantánamo.
Moreover, it was only after prolonged and concerted pressure from
organisations such as AI that the Government decided to act on
behalf of former residents; it had previously refused to do so
in the absence of any strict legal requirement to take action.
14. The Government now appears to be taking
a more pragmatic approach, encouraging its European partners to
assist the USA by agreeing to accept former detainees. The Government
also continues to talk to the US authorities about Shaker Aamer,
the last remaining legal UK resident detained at Guantánamo
(his wife and children are British citizens). However, there appears
to be little progress in this case. AI is concerned at reports
that Shaker Aamer's health may be seriously at risk.
15. AI is also concerned at the Government's
continued refusal to consider acting on behalf of Ahmed Belbacha,
who also lived in the UK, but was excluded from the UK's request
for release because it believes he was present in the UK illegally.
Mr Belbacha would face a serious risk of torture or other ill-treatment
if returned to his native Algeria. In the interests of assisting
the USA to close Guantánamo, and given his links with the
UK, it would seem to make sense for the Government to allow Mr
Belbacha to return.
16. It is now more than seven years since
the first detainees were transferred to Guantánamo. There
is a need for increased urgency in efforts to find a solution
to closing the camp. The Government should push hard for the return
to the UK of Shaker Aamer and Ahmed Belbacha, and work with its
allies to help resettle detainees who are not going to be charged
and tried and who cannot return to their country of origin. It
is critical that in seeking to close Guantánamo, detainees
are not transferred to other detention centres of concern or returned
to home countries where they might face a risk of human rights
abuses.
RENDITION AND
DIEGO GARCIA
17. The Report sets out the Government's
understanding of the terms "rendition" and "extraordinary
rendition". There is a danger of confusion over terminology
in this area. AI uses the term "rendition" to refer
to a variety of practices involving transfers of individuals from
one country to another, without any judicial or administrative
process such as extradition. This includes transferring detainees
into the custody of other states, assuming custody of individuals
from foreign authorities and abducting suspects on foreign soil.
AI considers rendition to be illegal because it bypasses any judicial
or administrative process. Additionally, rendition usually involves
multiple human rights violations, including abduction, arbitrary
arrest and detention and unlawful transfer without due process
of law. All of the victims of rendition AI has interviewed have
alleged they were subjected to torture or other ill-treatment.
18. The Report sets out the Government's position
that it would expect the USA to expressly request permission to
use its territory or airspace for rendition. However, relying
on US requests and assurances is clearly ineffective. As the Report
notes, contrary to previous denials, the USA is now known to have
used Diego Garcia to render two individuals. Moreover, more than
one year on, details about the two men have not been released.
On 26 February 2009, Foreign Office Minister Bill Rammell stated:
"We have very limited specific information about these flights
and, despite enquiry, have not been able to establish further
details that would be essential for purposes of further investigation".[19]
AI considers this deeply worrying.
19. The Report sets out the FCO's efforts
to discover if there might have been other cases of rendition
through UK territory. A list of flights was compiled and sent
to the US authorities, which later stated that there had been
no other instances of rendition. However, AI is far from reassured.
Diplomatic enquiries by the FCO do not amount to a sufficiently
robust attempt to investigate these cases; simple reassurances
are inadequate. Moreover, AI was disappointed that the FCO's list
did not include flights on the "rendition circuit" (flights
believed to have been on the way to or from a rendition), and
only included flights with detainees on board.
20. The broad investigation into UK involvement
in rendition, secret detention and enforced disappearance should
include flights believed to have been on the way to or from a
rendition (the rendition circuit) and not just those with detainees
on board. The Government should urgently seek more details about
the two detainees rendered through Diego Garcia. The Government
should also press the USA to make a full disclosure of its rendition
and secret detention programme and hold to account those involved
in these practices.
PRISONER TRANSFER
IN IRAQ
AND AFGHANISTAN
Iraq
21. The Report notes the cases of Faisal
Attiyah Nassar Al-Saadoon and Khalaf Hussain Mufdhi, who were
transferred from UK custody to Iraqi custody at the end of 2008.
This transfer went ahead despite what the High Court in London
described as "substantial grounds... for believing there
to be a real risk of [the two men] being condemned to the death
penalty and executed", and despite interim measures issued
by the European Court of Human Rights (ECtHR) requesting the UK
to delay the transfer until it was able to consider whether it
was compatible with the UK's obligations under the European Convention
on Human Rights.
22. In the coming months the ECtHR will consider
a number of cases, including the two mentioned above. These cases
centre on the extent to which individuals who claim to have suffered
human rights violations at the hands of UK armed forces in Iraq
should be entitled to the protection given by the ECHR, and to
seek a remedy through the UK courts.
23. In July 2008, the UN Human Rights Committee
expressed its concern at the approach taken by the UK to the question
of the applicability of its international human rights obligations
to the actions of its armed forces in Iraq, saying: "The
Committee is disturbed about the [UK]'s statement that its obligations
under the [International Covenant on Civil and Political Rights,
ICCPR] can only apply to persons who are taken into custody by
the armed forces and held in British-run military detention facilities
outside the United Kingdom in exceptional circumstances",
and calling on the UK instead to "state clearly that the
[ICCPR] applies to all individuals who are subject to its jurisdiction
or control". The UN Committee against Torture has expressed
similar concerns relating to the UK's acceptance of the applicability
of the Convention against Torture.
Afghanistan
24. There is a pressing need for greater
transparency with regard to US detentions in Afghanistan, in particular
in relation to the detention centre at Bagram Airbase. The UK
has a particular responsibility in this regard given what is known
about the transfer of detainees held by the UK in Iraq to US custody.
These detainees were then transferred to Afghanistan, where they
remain in custody, as outlined by the Secretary of State for Defence
in February 2009.
25. On the basis of the limited public information
about these two cases, it appears that the detainees would have
been "protected persons" under the Fourth Geneva Convention
and that the USA would have violated this provision when it transferred
them to Afghanistan. Unlawful deportation or transfer or unlawful
confinement, as well as torture and other inhuman treatment, in
violation of the Geneva Conventions, are war crimes.
26. The Government should take urgent steps
to press the US authorities to be more transparent about its detentions
in Afghanistan. The Government should also press the USA to publish
details of whether the two men transferred from UK to US custody
in Iraq, then transferred to Afghanistan, were held in secret
detention by the USA at any time; whether they were subjected
to interrogation techniques or detention conditions that violated
the prohibition of torture or other ill-treatment; and, if so,
whether anyone has been held accountable.
DEPORTATION: UNDERMINING
THE ABSOLUTE
PROHIBITION AGAINST
TORTURE
27. The Report states that "[i]nternational
action against torture has been a priority for the UK since the
launch of our anti-torture initiative in 1998." AI recognises
that the UK does much good work in this area. However, the organisation
is concerned that this is being undermined by the Government's
continued determination to deport terrorism suspects, in conjunction
with various diplomatic assurances, to countries where they face
a real risk of torture and other ill-treatment. These diplomatic
assurances are not only unenforceable and inherently unreliable;
they also undermine the absolute prohibition against torture.
28. The Report states that "our work on
deportations with assurances is having a positive effect on the
overall human rights situation in the countries concerned, allowing
us to engage with these governments on human rights issues".
AI rejects this statement and considers that the equivocal position
towards torture inherent in this policy risks causing real and
lasting damage to international efforts to combat torture.
29. Moreover, the effectiveness of binding
multilateral treaties such as the Optional Protocol to the Convention
against Torture (OPCAT) is fundamentally undermined when states
such as the UK seek and rely on non-binding bilateral agreements,
outside the multilateral framework aimed at preventing torture
and other ill-treatment.
30. Diplomatic assurances are only sought
from countries where there is a recognised risk of torture and
ill-treatment. These are, by definition, countries with a record
of failing to respect their binding obligations under international
law to prevent torture and other ill-treatment. There can be no
grounds for confidence that unenforceable bilateral diplomatic
understandings will be respected where binding multilateral treaty
obligations have been repeatedly flouted. At the same time, neither
the UK nor the receiving state has any incentive to acknowledge
that torture or ill-treatment has occurred.
31. Finally, the idea that monitoring mechanisms
bolster the effectiveness of diplomatic assurances is misguided.
The safeguards that assurances provide fall below those in international
law; they lack an enforcement mechanism and do not provide a remedy
in case of a breach. Indeed, diplomatic assurances have proven
to be ineffective, for example in the Swedish-Egyptian case.
32. AI, along with many other organisations
with experience monitoring human rights violations worldwide,
consider that ad hoc systems of post-return monitoring of individuals
are ineffective. Such schemes omit crucial institutional, legal,
and political elements. Reporting torture or ill-treatment is
also problematic in situations where individuals rather than groups
are monitored, as these individuals will be clearly identifiable
as the source of any complaint. It is for this reason that OPCAT
provides for system-wide monitoring; visits to large numbers of
detainees in sufficiently private conditions help protect detainees
against reprisals and reassure detainees that they can safely
provide information.
33. It is extraordinary that the Government,
which has been a strong advocate of the elimination of torture
throughout the world, should now be undermining this work by seeking
to circumvent the principle of non-refoulement. The Government
should reaffirm its commitment to the absolute obligation under
international law not to return any person to a country where
they face a real risk of torture or ill-treatment.
INTERNATIONAL CONVENTION
ON THE
PROTECTION OF
ALL PERSONS
FROM ENFORCED
DISAPPEARANCE
34. The Report notes the problem of disappearances
in a number of sections and in relation to a number of countries,
including Sri Lanka and Pakistan. Indeed, in the section on Pakistan,
the Report states that through its EU partners the UK is encouraging
Pakistan to sign, ratify and implement the International Convention
for the Protection of all Persons from Enforced Disappearances.
35. This Convention could provide important protection
in the area of rendition and secret detention. The Convention
recognises enforced disappearance as a violation of human rights
and prohibits it; puts an obligation on states to make enforced
disappearance a crime in national law, bring offenders to justice
and investigate reports of enforced disappearance; and provides
for reparations for victims and families. The Convention could
help to avoid any future repetition of involvement in rendition
and secret detention and would be an important signal of the Government's
commitment in this area.
36. Despite initial support, the Government
has been slow to turn its attention to the International Convention
for the Protection of All Persons from Enforced Disappearance
and is now among the last states in Western Europe to sign it.
The Government should give urgent attention to signing and setting
a timeline for ratifying the Convention.
CONCLUSION: THE
NEED FOR
"JOINED-UP
FOREIGN POLICY"
37. At times it is hard to avoid the conclusion
that the UK takes a less critical approach to states that are
strategically important. It is critical that human rights values
are fully integrated and consistently respected in all aspects
of the UK's foreign policy, and not just given rhetorical support.
If the UK fails to live up to the human rights standards it advocates,
it risks opening itself to charges of hypocrisy, playing into
the hands of repressive states and provoking resentment around
the world.
38. There is a need for human rights law and
standards to be more fully and consistently integrated within
the UK counter-terrorism strategy CONTEST. The UK's counter-terrorism
policies must be firmly anchored in the rule of law based on justice
and due process, and its foreign policy consistent in its respect
for and promotion of human rights. This is right in terms of the
values the UK aspires to represent, and is also essential to any
successful counter-terrorism strategy.
39. What the UK says and does is watched
closely in today's globalised and interdependent world. Consistent
application of human rights values and standards, and adherence
to the rule of law are essential in any successful challenge to
the environment in which radicalisation and extremism flourish.
24 April 2009
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