Examination of Witnesses (Question Numbers
140-159)
RT HON.
DAVID MILIBAND
MP, SIMON MANLEY
AND SUSAN
HYLAND
16 JUNE 2009
Q140 Mr. Keetch: The Intelligence
Services Act 1994, section 7, authorises you to waive the liability
of SIS or GCHQ personnel for any illegal acts that they may have
committed abroad in certain circumstances. Would the FCO be prepared
to publish details of such instances where that has been done
on a historic basis, obviously taking out certain bits for practical
operational reasons?
David Miliband: Would you just
say that again?
Mr. Keetch: Where you authorise service
personnel from the Secret Intelligence Service or GCHQ to commit
acts abroad that are illegal, under section 7 of the Intelligence
Services Act would you be prepared historically to make details
of that public?
David Miliband: No.
Q141 Mr. Keetch: The second question
is on the Investigatory Powers Tribunal—the IPT—which
I understand is the body that can investigate alleged misconduct
of the security services. What it cannot do is investigate third-party
allegations. If a third party comes along and says that something
went wrong, the IPT does not have the power at the moment to investigate
that. Should it not be given the power to investigate that? Could
it be given the power?
David Miliband: I think that I
am right in saying that it has taken up 660-plus cases in recent
years—I do not have the exact figures. It has a very specific
purpose, which is to take up individual complaints. I do not think
that it should become an alternative. It is better done as it
is. The law exists as one means of redress, the IPT exists as
another means of address—you represent yourself in the IPT.
I think that that is the right way of doing it.
Mr. Keetch: Thank you.
Q142 Chairman: I understand that
the Government are reluctant to agree to a full judicial inquiry
into the issues of extraordinary rendition and the allegations
of complicity in torture. Why is that?
David Miliband: Because the constitutional
arrangements that we have are designed to preserve secrecy. There
have been calls for a public inquiry. Everything that we have
been talking about today and the constraints that exist on our
work—by definition, intelligence work is secret—are
not susceptible to public inquiry. If you want to have intelligence
agencies that defend the country and defend the people of the
country, then you have to establish mechanisms that hold them
accountable that preserve their ability to act secretly. I think
that that is very important.
Chairman: We shall move on to some issues
relating to prisoners.
Q143 Mr. Purchase: Foreign Secretary,
thinking about the transfer of prisoners from British to other
hands—in Iraq and Afghanistan—and bearing in mind
the memorandums of understanding that we had in particular places
and that there have been allegations that such memorandums of
understanding have not exactly been properly and fully adhered
to, I wonder whether you find it acceptable that the transfer
from Iraq to Afghanistan of two detainees, handed over to the
US in 2004, was not questioned at the time, especially since Ministers
and Ministry of Defence officials were informed. Does the fact
that the US identified the cases after a due diligence search
suggest that UK record keeping, which you referred to earlier
in another context, has been somewhat deficient?
David Miliband: Just so I am clear,
this is the case that the former Defence Secretary reported to
the House of Commons last October or November; and this is the
case of two members of the Lashkar-e-Taiba organisation who were
in Iraq and captured by UK personnel acting under American command?
Mr. Purchase: Exactly.
David Miliband: To be absolutely
clear, there was no suggestion at the time that those two people
were going to be taken to Afghanistan.[3]
Q144 Mr. Purchase: Of course there
was no question at the time. That's the point, isn't it?
David Miliband: Perhaps not everyone
who is here or who is watching has got this: there was no suggestion
at the time that British personnel knew, or had been told, that
these two members of the Lashkar-e-Taiba organisation in Iraq
were going to be taken to Afghanistan. Secondly, I do not think
that there was a record-keeping issue. When the former Defence
Secretary made his statement to the House of Commons, he made
it clear that the transfer to Afghanistan should have been questioned
at the time. It was not a matter of the record keeping not being
appropriate, but that the future course of those two people should
have been questioned at the time. There was no question of British
personnel collaborating or colluding in rendition to Afghanistan.
Q145 Mr. Purchase: What does that
tell us about the efficacy of the MOUs?
David Miliband: It was not an
MOU issue, Ken. The MOUs govern British-Iraqi relations, for example,
or British-Afghan relations. They are not about what happens to
two people who were perfectly properly within American custody,
even though they were taken by our people acting under American
command. I do not think that it is an MOU issue.[4]
Q146 Mr. Purchase: Okay. Could
you now give us an assessment of the legality of the transfer
of those men from Iraq to Afghanistan and the reasons for that
transfer.
David Miliband: The legality?
Mr. Purchase: Yes.
David Miliband: No, I cannot give
you that. I can go back and find if we have got anything on it—do
you want to answer that?
Simon Manley: Just in terms of
why we understand in retrospect that they were transferred to
Afghanistan, the Americans told us that they were transferred
because they did not have sufficiently trained interviewers in
Iraq to interview those two individuals.
Q147 Mr. Purchase: That was why?
Simon Manley: That was why they
were taken to Afghanistan. Obviously most of the people that they
had interviewing in Iraq tended to be Arabists, not those who
could speak to people coming from Pakistan.
Q148 Mr. Purchase: I ask this
in a naive and innocent way: is that, at your level, an acceptable
explanation?
Simon Manley: Well—
Mr. Purchase: It is my naivety, not yours.
I am asking in a naive way if that is an acceptable explanation.
Simon Manley: As the Defence Secretary
said, in retrospect we should have questioned the transfer at
the time, but that was the reason—in American eyes—why
they transferred those individuals to Afghanistan.
David Miliband: I think that it
is worth saying that the legality question you asked, which I
do not want to pretend to give a fully formed legal answer to,
is part governed by the fact that Iraq was under a chapter 7 mandate
at the time and the law of armed conflict was in issue at the
time in Iraq. I think that there would be a large number of unique
legal issues at stake. That is what makes a difference. Iraq and
Afghanistan have been and are governed by international legal
commitments that are different from some of the other cases mentioned.
Mr. Keetch: We know that.
Q149 Mr. Purchase: Is it possible
to provide some details about these men's identities and give
assurances about their treatment since the transfer? Are you certain
that those were the only cases of extraordinary rendition of detainees
captured by US forces or with UK involvement that took place out
of Afghanistan or Iraq?
David Miliband: The first thing
to say is that "extraordinary rendition" has a particular
meaning that is in contrast to so-called "rendition to justice",
so I would not want to get drawn into this coming into the "extraordinary
rendition" category. The former Defence Secretary gave all
the information that we had at the time of the statement to Parliament;
I am not aware of any further information having come to light
since then.[5]
Q150 Sir John Stanley: I have
a slightly wider point on Iraq and Afghanistan. Foreign Secretary,
I want to raise some wider human rights issues in relation to
Iraq and Afghanistan. As far as Iraq is concerned, I think that
you would agree that, appalling as the Saddam Hussein regime in
Iraq was from a human rights standpoint, there have been some
very serious downsides to our invasion, or at least following
our invasion. I put three issues in particular to you. First,
there are the many Iraqis, some estimate hundreds of thousands,
who are now dead as a result of violence following our invasion
of the country. Secondly, there are the 2.5 million Iraqis who
have been turned into refugees in other countries. Thirdly, there
is the gradual erosion of the human rights of women in that country,
notwithstanding the provisions in the constitution to which you
have referred previously when appearing before the Committee.
The question I put to you is this: are the British Government,
in particular, now so powerless and so without leverage with the
Iraqi Government that, should the rights of women in Iraq continue
to be eroded, particularly outside the Kurdish areas, and notwithstanding
what is stated in the constitution, the British Government will
in fact be powerless to do anything about it?
David Miliband: Iraq is obviously
a sovereign country, and I think that "powerless" is
a very strong word to use, as that is a country with which we
have extensive political, diplomatic, economic and cultural ties
and whose constituent communities also have quite important links
to this country. I do not think that we are powerless, but we
are not the colonial power in Iraq, and we are not the governors.
We would have to work with the Iraqi Government for them to secure
improvements in the adherence of all their institutions to the
constitution to which you referred.
Q151 Sir John Stanley: Has that
worked with the Iraqi Government, because we know that Iraq is
increasing veering towards a theocratic state under the Shi'a
influence, which will spell very, very bad news for women there?
David Miliband: I am keen to have
a longer conversation about that, because a range of allegations
are made against the Prime Minister of Iraq, but actually he has
talked about how he wants to have mixed lists at the next elections
there, which are due in January—not just a Shi'a list, but
mixed lists. One has to be careful about this, not least because
the debate within Shi'aism, between an Iraqi centre of Shi'aism
and an Iranian centre of Shi'aism, is itself a huge debate with
quite large consequences for the future of the Middle East more
generally. I do not believe that it is veering towards being a
theocratic state, not least because of the very high level of
decentralisation that exists, which is not least to protect the
Kurds, but I think that there are very difficult forces that need
to be contained within Iraq. I was there a few months ago and
would be very happy to have a longer conversation about that,
but I think that our best bet is to seek to defend the Iraqi constitution
in our own interactions with the Iraqi authorities. I think that
that is the right thing to do.[6]
Q152 Sir John Stanley: One hopes
that the Iraqi constitution will not prove to be flimsy and somewhat
threadbare as far as women are concerned. Moving on to Afghanistan,
the Committee was there in April, by chance at the same time the
Prime Minister of this country was there. You will not be surprised
to know that a major subject of our attention and discussions
in Kabul was the Shi'a family law, for the sheer appalling nature
of it, as far as women are concerned. I just want to quote, not
from some source that might be thought emotive, but from your
own Department's briefing to the members of the British delegation
to the NATO Parliamentary Assembly's recent plenary meeting in
Oslo. This is your Department's description of some key articles
of the Shi'a family law, which President Karzai has now signed:
"Article 132: Legalises the rape of a wife by her husband
... Article 133: Subjects a women's right to work, education,
access to health care and to other services to her husband's authority/permission
... Article 161: Legalises divorce proceedings with the simple
requirement that two male witnesses must be present ... Article
177: Denies a woman the right to leave her home without her husband's
permission." These are utterly appalling degradations of
women. This is a law that has now been signed by President Karzai
and we were told that he signed it to secure the Shi'a minority
vote in the forthcoming presidential election in Afghanistan.
In other words, this is legislation that is simply serving an
electoral interest. As was reported, when the Prime Minister was
in Kabul he secured a promise from President Karzai that the legislation
would be reviewed. I put it to you, Foreign Secretary, that a
review promise is utterly inadequate when set against the appalling
nature of this legislation. Will you tell the Committee that the
Government will do everything they can, not merely to have this
legislation reviewed, but to make it absolutely certain that the
articles against women's rights do not come into force?
David Miliband: Sir John, I will
yield to no one in our shared commitment to defend women's rights
in Afghanistan. I believe that the articles that you have read
out were a description of the original law. Is that correct?
Sir John Stanley: What I read out were
the descriptions of the articles contained in your Department's
briefing—
David Miliband: On the original
draft of the Shi'a family law. Is that correct?
Sir John Stanley: I cannot see the word
"original" here. The briefing was in May and I therefore
assume it must be accurate—that is, I assume that it must
be your own Department's accurate description of the Shi'a family
law, as signed by President Karzai—
David Miliband: That is where
I differ from you.
Sir John Stanley: Excuse me, as I was
saying, it was signed by President Karzai prior to our visit in
April.
David Miliband: My understanding,
or rather my recollection, is that those descriptions are descriptions
of the original Shi'a family law. What I know is that our Prime
Minister did not secure a commitment to a review from President
Karzai—on 27 April, President Karzai announced that the
law would be changed, to bring it into line not just with the
Afghan constitution, which as you know guarantees equal rights
for women, but with international treaties to which Afghanistan
is a party. So there is a clear, public commitment from the President
of Afghanistan not to implement the original Shi'a family law.
Now, if there has been anything that has been missed in a Foreign
Office briefing to you, I will get to the bottom of it. However,
my understanding is that what you have read out are the original
provisions and that on 27 April President Karzai did not announce
a review—instead, he announced that the law would be changed.
So we just need to get to the bottom of that issue. However, we
are of shared view about the rights and wrongs.
Q153 Sir John Stanley: Foreign
Secretary, we need a further full written memorandum from you,
because all I can say is that what I read out was your own Department's
briefing in May.
David Miliband: On the original
Shi'a family law.
Sir John Stanley: There is no reference
to the word "original" here.
David Miliband: What does it say
then?
Sir John Stanley: It does say, "The
law, as drafted, contravenes human rights provisions of the Afghanistan
constitution."
David Miliband: Well, there you
go. It was "the law, as drafted," which President Karzai
has now promised to change.
Q154 Sir John Stanley: The point
that I am making is that, when we were in Kabul, it was that law
that had been signed by President Karzai, and we have certainly
not had any briefing that these provisions have been altered.
So, can you provide us with a very detailed statement as to how
those articles and others that were referred to in this briefing
have now been—I hope—repealed in their entirety?
David Miliband: Yes of course
I can provide you with a briefing. However, I do want it to be
on the record that President Karzai announced on 27 April that
the law would be changed to adhere to the Afghan constitution
and to the international treaties and conventions to which Afghanistan
is a party.
Q155 Sir John Stanley: You are
using the future all the time—"would be". The
issue is what is going to be the amended legislation and whether
President Karzai has got the consent of the Afghan Parliament
for the amended legislation to go through. You will be aware—at
least I hope you are aware—that those very brave women,
and indeed the men who supported them, who took to the streets
in Kabul in protest against these provisions were made the subject
of the most vile verbal and, in some cases, physical abuse by
those who wished the original law to be adhered to, as signed
by President Karzai.
David Miliband: As signed, but
not signed into law. Just to be absolutely clear, the implication
of your question is that somehow this law is enforced.
Sir John Stanley: No, I have not said
that.
David Miliband: We are agreed
it is not enforced.
Sir John Stanley: It was as signed.
David Miliband: But never enforced.
Sir John Stanley: Correct.
David Miliband: We are on the
same page, then. This law, with the characteristics that you described,
has never been enforced and the President of Afghanistan has said
that it will be changed so that it comes into conformity with
the Afghan constitution and international commitments.
Sir John Stanley: Signed and agreed by
Parliament.
David Miliband: And therefore
come into force?
Sir John Stanley: No.
David Miliband: Eventually come
into force?
Q156 Sir John Stanley: Apparently,
as was explained to us, that is not how it works. It was agreed
by Parliament and signed by President Karzai but was not actually
put in force, and there has not been what we would call in our
terms a commencement order in respect of the original legislation.
David Miliband: One reason it
did not come into force is the degree of revulsion both inside
Afghanistan and outside. It was a major feature of the international
debate that President Obama got involved in, our Prime Minister
got involved in, lots of people got involved in.
Q157 Chairman: Foreign Secretary,
just to place it on the record, I understand that this has been
put in a cupboard or a drawer and locked away. Is there not a
danger that once he is re-elected, President Karzai might then
get it out of the cupboard and carry on?
David Miliband: We cannot have
it both ways. We cannot just say that we want Afghanistan to choose
its own leader. He is going to decide what he wants to do, but
he has to act within the Afghan constitution. Part of our role
is to be absolutely clear about the basis on which we are engaged
in Afghanistan, which is to defend the Afghan constitution.
Q158 Chairman: And to defend women's
rights.
David Miliband: To guarantee equal
rights for women, which are enshrined in the Afghan constitution.
Q159 Sir John Stanley: On a further
aspect of women's rights, Foreign Secretary, you will be aware
of the extreme danger that those who fight for women's rights
face in Afghanistan. I am sure it will have been reported to you—I
think it was in March or February—that one of the leading
women's rights campaigners in Afghanistan was murdered in cold
blood as she came out of her home in Kandahar. We saw a few individuals
who are leading the campaign for women's rights in Afghanistan.
Their most particular concern is that if there should be "reconciliation
talks" talking to the Taliban, women who want to fight for
women's rights should be round the table, and there should not
be a back-door deal between men only in which women and women's
rights are sold down the river. Can you give the Committee an
assurance that you will do all you can as far as the British Government
are concerned to make certain that those who are with immense
bravery putting their life at risk daily, fighting for women's
rights in Afghanistan, will be round that table if there is going
to be any "talking to the Taliban"?
David Miliband: We will certainly
do everything we can to support precisely the sort of people that
you describe. I have met some of them as well and your description
of them is totally well founded. It is truly humbling to see the
risks taken and the bravery of those people, some of whom are
in elected office and many of whom are in civil society. Part
of our job is to argue for them at a political level but also
to try to support them in their communities. I think that your
commitment is well made and very much recognised, and certainly
at the heart of what we think we are doing in Afghanistan.
3 Ev 50. Back
4
Note by witness: There was an MOU in place between the
UK and the US that covered this time period. We do not consider
the transfer of these two individuals to have any implications
for the efficacy of this or other MOUs. Back
5
Note by witness: We are unable to provide further information
on this matter other than that given by my Rt. Hon. Friend the
former Secretary of State for Defence, in his statement of 26
February 2009. Back
6
Ev 51. Back
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