Letter to the Chairman of the Committee
from the Secretary of State for Foreign and Commonwealth Affairs,
Foreign and Commonwealth Office
In your letter of 2 December, you asked whether
a statement by Defence Secretary John Hutton in his letter to
the Chairman of the House of Commons Defence Committee, dated
17 November, represents the view of the FCO's legal advisers.
John Hutton had written to the Committee with this information
in order to follow up on evidence on Iraq and Afghanistan, taken
on 28 October. In the passage cited in your letter, John Hutton
confirmed that:
"The UK does not have legal obligations
towards the treatment of individuals we have detained once they
have been transferred to the custody of another state, whether
in Iraq or Afghanistan or thorough the normal judicial extradition
process".
I can confirm that the FCO shares the same view
as the Ministry of Defence on this issue, namely that the UK does
not have legal obligations towards the treatment of individuals
we have detained in Afghanistan and Iraq once they have been transferred
to Afghan or Iraqi custody. The Foreign Affairs Committee will
appreciate that HMG takes meticulous care that any transfer takes
place in accordance with the strategic framework of Memoranda
of Understanding and other assurances, so that we can be abundantly
certain that it is consistent with any applicable international
human rights obligations of the United Kingdom.
Both the Iraq and Afghanistan arrangements ensure
that detainees transferred by the UK are treated in accordance
with those States' respective international human rights obligations
including prohibiting torture and cruel, inhuman and degrading
treatment. We no longer hold any detainees in Iraq. In the case
of Afghanistan they also commit the Afghan Government to allow
access to transferred detainees by the ICRC and UK and other officials
and not to transfer to another state without the prior written
agreement of the UK. In Afghanistan, the Royal Military Police
conduct routine visits to transferred detainees and the UK Government
has committed several millions of pounds to train Afghan prison
officers, including in human rights, and build secure and humane
prison and detention facilities for the Afghan Government.
Consistent with the statement by John Hutton
about which you have asked, we consider that ongoing monitoring
of and access to individuals, transferred in the above circumstances
and who remain in Iraqi or Afghan detention, does not reflect
a continuing legal obligation on the part of the United Kingdom
in respect of such individuals. It is nonetheless a vital part
of the continuing diplomatic engagement to ensure the effective
operation and implementation of the aforementioned strategic framework.
This framework is amplified by the work we and coalition partners
carry out with the Iraqi and Afghan authorities in the justice
and rule of law fields.
24 January 2009
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