Examination of Witnesses (Question Numbers
160-179)
RT HON.
DAVID MILIBAND
MP, SIMON MANLEY
AND SUSAN
HYLAND
16 JUNE 2009
Q160 Sir John Stanley: You will
try to ensure that they are round the table?
David Miliband: The reconciliation
talks are obviously to be taken forward by Afghans rather than
by us, but the basis on which we have talked about supporting
reconciliation is to come into line with the Afghan constitution,
which speaks directly to the point that we have just been discussing.
Q161 Mr. Purchase: Staying in
Afghanistan, but returning to MOUs, the 2006 memorandum of understanding
with the Afghan Government commits the UK Government to transferring
detainees to the Afghan Government at the earliest opportunity.
However, giving evidence to this Committee, the organisation REDRESS
suggested, in the light of evidence on torture in Afghanistan,
that "MOU ... cannot provide an effective safeguard against
torture and other ill-treatment, and other serious human rights
violations." Given that that was evidence presented to us
in our Afghan inquiry, and fairly convincingly at the time, what
assurance have our Government sought and received from the USA
about the treatment of prisoners at Bagram Air Base and other
sites in Afghanistan—particularly where detainees were captured
by UK forces working with the US, and where the subsequent arrest,
or detention, has been by the US forces?
David Miliband: You are raising
two issues. One is the MOU with the Afghan authorities and the
second is a separate issue, concerning US treatment. Obviously,
the MOU is important from what it says on the paper, but there
is also the question of how the accountability is preserved. For
me, one important indicator is the access of independent groups
to detention centres, and elsewhere. I take very seriously the
reports that I get from the International Committee of the Red
Cross, the Red Crescent, and the Afghan Independent Human Rights
Commission. They have access to Afghan detainees, as well as there
being access for our officials, although with the best will in
the world our officials cannot be everywhere. But those independent,
third party corroborations are important. In respect of Bagram,
there is also an ICRC investigation and ICRC access there, as
well as American assurances in respect of the humane treatment
of people there. Those are some of the ways in which we try to
make sure that the spirit of the MOU is lived up to, notwithstanding
the extremely difficult conditions under which people are operating.
Q162 Mr. Purchase: Thank you for
that frank reply. However, we clearly cannot be confident that
people transferred will not be mistreated. In those circumstances,
are there any mechanisms by which we can enforce the commitments
that are contained in the MOU? Indeed, does the MOU remain an
appropriate basis on which to make these transfers?
David Miliband: The MOU is right,
but it is also important to say that our officials and the Royal
Military Police all visit detainees transferred into Afghan custody
to try to ensure that standards are maintained. That is the right
thing to do. We have an ongoing relationship. It is not like an
MOU that is plastered on a wall, or put on to a shelf—we
seek to honour it in all our engagements with the Afghan authorities.
Equally, as you know from your trips to Afghanistan, it is a country
without the state machine and traditions that we have. If there
was any suggestion of mistreatment, our people would take that
extremely seriously.
Q163 Mr. Purchase: May I press
you a little further there? We are being pretty frank about the
efficacy of these arrangements. Have our Government made a systematic
assessment of whether the detainees that have been transferred
have been treated in accordance? Can we refer to instances where
they perhaps have not, and what have you done about it?
David Miliband: If you mean by
systematic—
Mr. Purchase: Case by case.
David Miliband: If you mean by
systematic an ongoing, detailed, in person investigation, then
that has been going on. To put that in perspective, it is useful
to have some numbers. As of last week, 544 people had been detained,
295 had been transferred to the Afghan authorities and 259 had
been released.[7]
That gives you some idea of the scale that we are talking about.
That is why, when I talk about British embassy officials from
Kabul, or the Royal Military Police investigating it, given the
scale of that detention, it is reasonable to talk about an ongoing,
in person, careful review of the situation.
Q164 Chairman: May I switch focus
to Guantanamo Bay now, briefly? You were aware, Foreign Secretary,
that our Committee actually called on the international community
to assist the US in closing Guantanamo, but we did not do so in
the context of the US sending people to territories of foreign
countries without the Government of the territory knowing that
the people were arriving, or with the Government being told as
the people were being put on the plane. Can you update us on the
position of the Uighurs who have been allowed by the Premier of
Bermuda, who does not have responsibility for foreign affairs
or security matters, to settle in Bermuda? What is the British
Government's position on whether former Guantanamo inmates could
or should be taken in by Overseas Territories, with or without
the agreement or knowledge of the British Government? And what
are the security implications?
David Miliband: There are three
questions there. First, obviously any transfer to a British territory
should be discussed with the British Government. In this case,
the Bermudan authorities did not do that.
Q165 Chairman: Nor did the US.
David Miliband: No, but the US
liaised with the Bermudans. The Bermudans know, or should know,
what the entrustment is with respect to the UK. It did not happen
in this case. Secondly, I think that the UK has done its bit in
respect of Guantanamo. We were one of the first countries to say
that our citizens or former residents should be brought back here.
Fourteen have now come back. One is still in Guantanamo Bay. Thirdly,
we are waiting for the US security assessment of these people,
because they obviously know them better than anyone else.
Q166 Chairman: Will these individuals
be allowed to stay in Bermuda, or will they be allowed to travel
to other parts of British territory?
David Miliband: At the moment
they are not allowed to travel anywhere, so it is not a question
of whether they will be allowed to stay in Bermuda; they cannot
leave Bermuda at the moment. They have no travel documents.
Q167 Chairman: Presumably, if
their security assessment is that they are, as the United States
has said, no threat, but the US itself is not prepared—because
of Congress not agreeing—to have them living in New York
City or Denver, Colorado, or Florida, they will be in Bermuda,
and then, presumably, at some point, be allowed to travel. Is
that correct?
David Miliband: Not necessarily;
it depends. As I said, they have no travel documents to travel
with at the moment, so their status is still unclear. We are obviously
in touch with the American authorities. I have spoken to Secretary
Clinton about it.
Q168 Chairman: What did you say
to her?
David Miliband: I gave her my
explanation of what I believed were the—
Q169 Chairman: Was this a frank
conversation?
David Miliband: It is always a
friendly conversation with Hillary Clinton. We are in no doubt
about what should have happened in this case, and it did not.
It obviously happened last Thursday and we are on the case at
the moment.
Q170 Chairman: Could we send them
back to the US?
David Miliband: If the Americans
agreed to take them. We did not agree to take them, no. But they
are in Bermuda at the moment—not here.
Chairman: I think that we shall be continuing
questioning on this matter over coming weeks, because it does
raise very important issues about British territory and British
sovereignty. No doubt we will pursue it.
Q171 Sir John Stanley: I was not
clear, Foreign Secretary: do you believe that the decision on
this is one that should have lain with the Governor and the Foreign
Office, or do you think it was a decision that could properly
be taken by the Bermudan Government?
David Miliband: No, the deed of
entrustment is absolutely clear that it should not have been decided
by the Bermudan authorities on their own. The Bermudans said this
was an immigration case, and immigration is their province; but
actually, anything to do with agreements with foreign countries
requires the engagement of the United Kingdom.
Chairman: We have to move on, unfortunately.
Mr. Keetch: May I just say that I have
to leave for a meeting at his point?
Q172 Mr. Illsley: I want to ask
a couple of questions about oversight of contractors, particularly
in relation to what happened at the British embassy in Baghdad,
with the defence contractor KBR. You probably recall that allegations
of serious misconduct were levelled against the staff of KBR.
Those allegations were investigated by KBR themselves and the
whole matter was apparently dealt with. There were then further
allegations, which led to the inclusion of FCO staff as part of
a subsequent investigation. I would like to ask about the inclusion
of FCO officials in the team investigating the most recent allegation;
is that an admission that KBR or similar contractors cannot be
trusted to investigate allegations of misconduct properly?
David Miliband: I don't think
so, no. In the 2007 case, the Metropolitan Police did some interviewing.
In the 2009 case—and given the seriousness of it, there
was a second case—FCO officials were involved. We use contractors
for catering, cleaning, security and a whole range of functions
around the world. We have contracts with them which uphold our
own employment practices and best standards, as well as what we
expect them to deliver as contractors of the UK Government. We
expect them to hold to those standards. There are various disciplinary—and
other—procedures available if they do not. The FCO involvement
in the 2009 case reflected that case.
Q173 Mr. Illsley: Does the involvement
of FCO officials in the 2009 case not cast some doubt over the
2007 investigation and question its appropriateness? Why is the
Foreign Office determined not to reopen that investigation after
the 2009 allegations? Does it suggest that KBR's own investigation
was inadequate?
David Miliband: The Permanent
Secretary[8]
has written to the Committee a number of times in quite a lot
of detail. The Metropolitan Police interviewed some individuals
involved in the 2007 case, either on the night or the day after
it blew up. The Metropolitan Police had a role; they took evidence
and that was appropriate. Peter Ricketts, the Permanent Secretary,
has been through the case in voluminous detail. The second case
involved a different set of allegations. The other thing to add
is that in 2008, a senior embassy team in Baghdad reviewed the
2007 case and concluded it had been dealt with in the right way.
Q174 Mr. Illsley: Are you intending
to redraft future contracts to include conditions that make sure
this doesn't happen again?
David Miliband: I haven't seen
an allegation—
Q175 Mr. Illsley: Or are you going
to include FCO officials in any future allegations immediately
from the outset in any investigation?
David Miliband: There is a local
issue there, to make sure that all staff—including locally
employed staff—are aware of our dignity at work policy and
other practices. We have a dense procurement relationship with
a whole range of organisations and I do not think the problem
has been in the contract—or the allegation of a problem
has not been in the contract. However, we have a responsibility
to make sure it is properly understood.
Mr. Illsley: Okay. Let us talk about
private military security companies. You may recall that as long
ago as 1999, this Committee did a report on the employment of
private military companies as contractors. That followed our inquiries
in relation to an incident connected with Sierra Leone, which
involved a private military company. Since then, the matter has
rested, but the Government have now decided to look into this.
Why has it taken the Government so long to make a decision to
investigate the role of private military companies?
David Miliband: It is a difficult
issue. What you are talking about is people operating outside
our jurisdiction. The concern people have is that if wrongdoing
happens outside our jurisdiction, we should be able to punish
it. However, the fact that it is outside our jurisdiction means
that we cannot in any conventional way. I think I am right in
saying that South Africa has introduced a law but has no prosecutions
under it because of this problem. By definition, international
security companies are international. It is a tough nut to crack.
We have ended up with commitments in respect of British purchasing
and contracting, an international code of conduct and a serious
self-regulatory mechanism. Does that mean that everything has
been concluded? We have said we want to see in three years' time
how the new system has worked, and how our contracting power has
been used. It has taken time because it is in essence a simple
but also a very difficult issue because it is about wrongdoing
far away.
Q176 Mr. Illsley: You have mentioned
that South Africa has legislation. The United States has legislation.
The Swiss have a licensing regime. We have self-regulation. This
is a cross-departmental issue as the MOD has an involvement. Did
the FCO have a particular view on which route to take in terms
of legislation or a code of conduct or whatever? Did the FCO have
any specific—
David Miliband: It was not an
institutional house view. There was a discussion inside Government.
The experience of this South African legislation is that, every
year that goes by, it makes one more concerned that passing a
law won't do the trick. If we can, along with the other main countries
that use private military security companies, establish a set
of international benchmarks for good practice that would be a
quicker way of making progress.
Mr. Illsley: I was going to ask whether
there is any likelihood that we could reach agreement internationally
or across Europe on that issue. As well as answering that, perhaps
you might comment on what sanctions might be available if this
is just going to be a voluntary code of conduct, other than naming
and shaming the companies themselves.
David Miliband: The best sanction
is that companies would no longer get contracts from either ourselves,
the Americans, the Chinese or the Russians. We are trying to build
on the Swiss initiative that you mentioned. We have been working
with not just the private military security companies themselves
but human rights and other organisations, including Amnesty International,
to try to ensure that this code is as robust as possible. It is
critical that all the main countries adhere to it. It is not just
about getting companies to sign up; it is not just self-regulation.
It is about us as purchasers and contractors, as people who procure
these services, doing so only with those companies that sign up.
Mr. Illsley: We will probably return
to it in a couple of years' time.
Q177 Sir John Stanley: The legal
issue you refer to does not mean that employees of private security
companies cannot be prosecuted under the national law of the countries
in which they are doing their work, unless they have diplomatic
immunity. Can you assure the Committee that none of the employees
of these private security companies, even if they are doing work
for the Foreign Office, have diplomatic immunity conferred upon
them?
David Miliband: You mean under
the Vienna Convention and so on? I will find out and write to
the Committee. I don't know the answer to that. I am happy to
write to the Committee.[9]
Q178 Chairman: In the time that
is left, can we go on to some more general issues? The UN Human
Rights Council is now three years old and there are increasing
concerns about its effectiveness. In the light of the statement
it made on 27 May and voted by 29 votes to 12, which included
ourselves, that the conflict in Sri Lanka was "a domestic
matter that doesn't warrant outside interference", do you
think that the Human Rights Council is doing the job it was set
up to do—to deal with human rights abuses and civilian deaths
as a result of that conflict?
David Miliband: In part. The Committee
has discussed the Human Rights Council before and you have challenged
or questioned the value of engagement with it. There are deep
divisions between those who hold fast to a view that what goes
on within a country is its own business and does not belong on
the international agenda and those who believe that it does. The
slightly odd thing about the special session on Sri Lanka is that
the discussion in the UN Security Council, which was an informal
discussion, revolved around the same issue: whether or not the
position of civilians in Sri Lanka was an internal matter or whether
it was a concern for regional stability. There were arguments
that it better belonged in the Human Rights Council. As you pointed
out, it got turfed out of the Human Rights Council on precisely
the same grounds. There have been comments from the UN High Commissioner
for Human Rights, Mrs. Pillay, denouncing—or objecting to
the way in which this was thrown out. Sitting where we do, we
should be careful—if you are in a glass house, do not throw
stones. The UN Human Rights Council is not a perfect organisation,
but neither are we. It is a forum that needs the engagement of
countries such as the UK, which is why we stood for it again.
It is welcome that the Americans are getting involved with it.
Things like the universal periodic review, which we have been
through, have been worth while. I would defend the fact that we
co-sponsored the special session on Sri Lanka—that was the
right thing to do—but obviously it was a disappointing result.
Q179 Chairman: But there is a
worrying situation, when there are some of the major countries
in the world—China, India, Egypt—among the 29, and
there seems to be a shift away from the optimistic agenda of the
responsibility to protect, and the approach that was taken a few
years ago. It is now clearly reflected that the majority of members
of the Human Rights Council and therefore, presumably, the majority
of members of the General Assembly are of that view. Because of
Russia and others in the Security Council, you are unable to get
the Security Council to act either: welcome statement from Ban
Ki-moon, welcome statement from Mrs. Pillay, welcome statement
from John Holmes—nevertheless, when it comes down to it,
the UN is not prepared to act on human rights issues, which it
says are domestic matters that do not warrant intervention.
David Miliband: The UN is not
prepared to act on some human rights issues, that is right. You
raise an important and generic point.
7 Note by witness: 549 UK captured detainees
of which 257 have been released, 283 transferred to the Afghans,
8 died, and 1 is receiving medical treatment (as of 16 June 2009). Back
8
Note by witness: The Permanent Under Secretary and the
Foreign Secretary have written to the Committee a number of times
in some detail. Back
9
Ev 51. Back
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