HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON HUMAN RIGHTS
MONDAY 21 NOVEMBER 2005
MR BEN WARD, MS CARLA FERSTMAN and MR LIVIO ZILLI
USE OF THE TRANSCRIPT
Taken before the Joint Committee on Human Rights
on Monday 21 November 2005
Mr Andrew Dismore, in the Chair
Memoranda submitted by Human Rights Watch, Amnesty International, REDRESS
Examination of Witnesses
Witnesses: Mr Ben Ward, Special Counsel, Human Rights Watch, Ms Carla Ferstman, Director, REDRESS and Mr Livio Zilli, Researcher, Amnesty International, examined.
Q1 Chairman: Welcome everybody. This is the first of our evidence sessions on UK compliance with the UN Convention Against Torture, and we have three witnesses today: Mr Zilli from Amnesty International, Mr Ward from Human Rights Watch and Ms Ferstman from REDRESS. First of all, thank you all for coming. What I would like to do is start off with a general question and perhaps this is best addressed in the first instance to Mr Ward. What is your overall view of UK compliance with the Convention Against Torture and where do you think the difficulties are to be found? Is it in the legal structures, in Government policy or just in the practical treatment of detainees?
Mr Ward: It seems to me that what we can observe in UK Government policy in respect of torture over the past several years is a kind of divergence and a sense that actually the obligation that the UK has in respect of torture has a hard part and a soft part. The hard part is that the UK has a clear obligation not to carry out any actions itself that would result in torture, so it must not torture detainees, it must not expose them to standards of detention which would amount to inhuman and degrading treatment. When one looks at the rhetoric and the policy of the Government in relation to that aspect of torture, it seems to us that there is still a very full commitment to that and that is reflected in the most recent Foreign Office Annual Report, for example, which talks about torture. On the other hand, there is another aspect of the torture obligation, and that is an aspect which relates not to the direct action of the United Kingdom but indirect action which results in people being exposed to the risk of torture. That includes transfers or extraditions of people to countries where they would be at risk of torture. It includes the admission of evidence that may have been obtained under torture. Regrettably, what we are seeing in that area is a sense that that obligation is not an absolute one, it is not an obligation that the UK Government needs to take as seriously or give as full respect to as the hard obligation that it must not torture people itself. So that is really our concern. I should perhaps conclude by saying that as a matter of international law, those two elements are in fact part of the same obligation and there is no distinction between them, and in fact if there is going to be an effective international system for the prevention of torture it is absolutely critical that the states recognise that their obligation in relation to torture does not stop with not torturing people themselves, but extends to their relations with other states and the actions they take that indirectly may expose people to that risk.
Mr Zilli: I would like to briefly thank the Committee for having given this opportunity to Amnesty to address you on this subject, this very important inquiry you are conducting. I would like to underscore what Ben has just said and I think that the Convention Against Torture as the primary instrument internationally makes it very clear from the prohibition itself - which of course has been recognised by the House of Lords and many other judicial and other bodies to have the character of encompassing an obligation on governments - that it consists of a whole host of duties. These are duties not simply to refrain from committing an act of torture or other cruel, inhuman or degrading treatment, but also to put in place a holistic system of measures which encompass legislative, administrative, social and other measures to ensure that such acts are prevented, investigated duly when they occur, punished and redress offered to the victims. Clearly such obligations arise in respect of acts of torture perpetrated outside the United Kingdom jurisdiction. For example, the UK authorities have exercised universal jurisdiction provisions under statute in the trial of an Afghan warlord by the name of Zardad, thereby effectively complying with the universal jurisdiction provisions enshrined in the Convention. That, as I said, encompasses a whole list of preventative measures that must be put in place. Generally, the attitude of the Government in this respect has been wanting. We have seen that the authorities have sought to circumvent the obligations under the Convention Against Torture and similar obligations arising from other international treaties, chiefly the ICCBR and the European Convention on Human Rights. With respect to the conduct of the troops and other officials in Iraq ---
Q2 Chairman: We will be coming on to some of these issues later. One thing we cannot look at in this Committee is overseas abuses, we have to look at the position in relation to the UK. So we cannot get into the detail of what is actually happening in Iraq.
Mr Zilli: I understand the point, it is just to underscore the fact that that is simply a way of circumventing the obligations arising from the prohibition against torture, and that has been recognised by the Committee itself who raised concern about it. Just generally, the attitude has been somehow bizarre. We have received correspondence from the MoD, from the Minister of the Armed Forces, Adam Ingram, addressed to Kate Allen when we raised with the Committee the issue of the duty to ensure an effective, independent, thorough and prompt investigation in connection with reports of abuse at army barracks and ill treatment and so on, and the response we received was that the reason why the Committee had decided to ask a question and then made a recommendation to that effect was because the information had been provided by us, which I frankly find bizarre.
Q3 Chairman: Can I ask, Ms Ferstman, do you think the reporting process under the Convention is adequate to make Government accountable? Is it effective?
Ms Ferstman: Thank you very much on behalf of REDRESS for this opportunity. I do think the reporting process has been quite useful and it has enabled the Government to speak to a number of its policy objectives. If we look to the matter in its broadest sense, I think it is fair to say that the Government has undertaken a number of very important steps in respect of compliance with the Convention Against Torture which must be underscored and recognised, including signing on to the optional protocol, and the important work it does with third countries in respect of prohibition of torture. So the problem that we see is that when it comes to the implementation of some of the more difficult parts of the Convention, often there is a lack of legislative basis within the United Kingdom for some of the basic provisions. What I mean by this is that the strict letter of the Convention Against Torture is not in all instances reflected in UK domestic law, and this has been a problem in certain cases particularly with respect to the torture evidence issue which has arisen in a number of other contexts.
Q4 Chairman: Do you think there is anything which could make the reporting process more effective?
Mr Ward: I attended the session of the UK Committee Against Torture and on the face of it the response of the UK delegation to the questions which were put by the Committee during its consideration of the report were extremely impressive; 70 or 80 pages of response were prepared overnight to those questions. Regrettably though, on a number of points there was a lack of detail or a lack of willingness to recognise that the UK practice and law was out of sync. In other words, there seemed to be a sense on the part of the delegation that the objective was to persuade the Committee that in fact the UK was in compliance, meeting its obligations, rather than perhaps to take on board the concerns the Committee expressed. So it had something of the appearance of a rather ritualistic exercise. That would be my concern about it. There was a very large delegation, a very high level delegation - one of the largest delegations I have seen at the Committee - so on the face of it it is clearly a process which the UK Government takes seriously, but I would like to see a more genuine willingness to take into account the concerns and criticisms that the Committee expresses and reflect those into UK policy and law.
Q5 Lord Lester of Herne Hill: I would like to ask you some questions about incorporating the Convention Against Torture into UK domestic law. Really what I am searching for is something quite specific, which is to try and identify what is a mismatch between the obligations in the Convention Against Torture and what the UK has already done to incorporate the Convention. My understanding, and you will correct me if I am wrong, is when we ratified the Convention the Government of the day in the Criminal Justice Act of 1988 did implement the Torture Convention so far as jurisdiction is concerned, which seemed to me to satisfy some of the main articles of the Convention. I understand of course the ambiguity about the use of evidence obtained by torture, which is now being dealt with in the appeal to the Law Lords, and I understand the controversy about deportation and Article 3 of the Torture Convention, read with or without the Human Rights Convention. Without being too general could one of you, and probably it is a question of REDRESS I suspect since they raise it in their evidence, identify practical examples where you believe there is a mismatch between UK law and what the Convention requires, other than the ones I have just identified?
Ms Ferstman: I do think one clear example is the issue of lawful authority, which appears in section 134(4) and (5)(b) of the Criminal Justice Act which relates to certain defences that may exist on conduct amounting to torture. In that respect, the Committee Against Torture referred in its 1998 comments, where it recommended that the United Kingdom Government reform this particular aspect, and again in 2004 to this specific issue. That would be one example. Another area which perhaps is akin to something which lacks clarity as opposed to a specific obligation, such as the one I have just mentioned, relates to civil remedies and Article 14 of the Convention Against Torture. In respect of the recent report of Canada to the Committee Against Torture, the Committee made very specific reference to the need to provide civil remedies to victims of torture in all instances, and I would suggest to the Committee that would be something which could be equally applicable to this country.
Q6 Lord Lester of Herne Hill: Are you saying there are not effective civil remedies in this country for the victims of torture?
Ms Ferstman: Certainly this is one issue which is also subject to the courts and there is a current case which is proceeding through the courts in relation to British nationals who allege torture in relation to Saudi Arabia. What is suggested is that the State Immunity Act operates as a bar to the full implementation of Article 14 of the Convention Against Torture.
Mr Zilli: I would like to make just one point. I think perhaps it is the Government that has to enter into an exercise whereby its compliance with the provisions of the Convention is not simply a bureaucratic exercise conducted every X number of years when the State Party report is going to examined by the Committee. Therefore, it should look at all these obligations holistically and conduct a review to ensure in fact its domestic provisions in primary and other legislation are in compliance. With respect to the universal jurisdiction provisions, of course Lord Lester has pointed out the Criminal Justice Act which incorporated universal jurisdiction. I think the issue there might be that in fact the universal jurisdiction is permissible rather than mandatory and I think that might be an issue that the Committee might want to query further, when in fact the duty under the Convention and generally under the provision is one whereby actually if evidence exists that there is reasonable suspicion that someone has committed acts of torture, it is the duty of the authorities to investigate and prosecute that crime or to extradite to another country rather than have a permissible exercise of jurisdiction. Also I am conscious of the fact that the Chairman has remarked that the ambit of this inquiry is basically UK jurisdiction. I think there is certainly an issue of mismatch between what the UK authorities perceive as their obligations domestically and internationally vis-à-vis their conduct abroad, and that has been noted by the Committee Against Torture.
Chairman: I should have made it clear, it is the terms of reference of the Committee as a whole, not just the terms of reference of this inquiry. By definition our Committee has to follow those terms of reference.
Q7 Lord Lester of Herne Hill: These questions are quite important because if the 3 NGOs or any of you are able to give us a paper which states your own point of view, we can then put that to the Government, but in the absence of something specific it is difficult for us to do that. Suppose the Law Lords in the pending appeal were to decide the Convention Against Torture can be taken into account and should be taken into account by UK courts in all proceedings where it is relevant, would that not diminish the need to incorporate the Convention, since the judges will have decided that there could be judicial incorporation in that way?
Mr Ward: Certainly in respect of the question of admissibility of evidence which may have been obtained under torture, it would satisfy that concern. My colleagues have clearly thought in more detail about the various ways in which there is a disconnect, or a mismatch as you put it, between UK law and its international obligations in respect of the Convention. It seems to me that incorporation would neatly satisfy all those concerns and not require they be resolved on a case by case basis. In that regard, just briefly to note one of the exchanges which took place during the torture evidence case in the House of Lords, the Government's barrister made a submission to the effect that it was not necessary to have a rule of law in respect of the exclusion of torture evidence because as a matter of policy the UK Government would never use such evidence. Then, when he was pressed by their Lordships, he said that it would not be good to have a rule of law because the Government might want to change its policy at some future date. So it does seem to me that there is a sensible case for incorporation.
Q8 Lord Lester of Herne Hill: When you say "incorporation", you do not mean, do you, every part of the Torture Convention, because some of it is mere machinery, you mean incorporation of the substantive provisions to the extent they are not already part of our law?
Mr Ward: To give them effect.
Q9 Lord Lester of Herne Hill: Do you also mean some of it could be done by administrative means as well as by legislation, or not?
Mr Ward: It is not a question I have given enormous thought to. My colleagues may be able to answer that question.
Q10 Chairman: Do not give an off-the-cuff answer, if you want to think about it, do so.
Mr Zilli: I think it would be laudable and certainly plausible for the Law Lords to actually rule as you suggested. However, it would be on a case by case basis, and in any event it would perhaps be more advisable if there is a need for primary legislation to be discussed by the legislature to give effect to the provisions where full effect has not been given, and one clearly is Article 15. I do think the Convention speaks of not only legislative but also social and other administrative measures so it would be, as you pointed out, a broader exercise and not simply a question of introducing legislation.
Q11 Lord Bowness: Can I address my questions to Ms Ferstman and REDRESS. You have already mentioned section 134 of the 1988 Criminal Justice Act and the fact that within that Act there is a defence of lawful authority, justification or excuse to a charge of torture. You know that the Government say that is necessary because it is a very wide definition under the Act, broader than the Convention and they say that Section 3 of the Human Rights Act means the courts would interpret section 134 compatibly. In your written evidence you submitted the Criminal Justice Act should be amended to make it clear that the defence does not permit treatment which is prohibited under the Convention. Why is it you do not believe that interpretation of section 134 compatibly with Section 3 of the Human Rights Act would be sufficient?
Ms Ferstman: The Committee Against Torture itself in its commentary on this particular issue referred to those instances when the Human Rights Act would itself not apply as one of the reasons why it would be appropriate to look at the matter inclusively within section 134. We know of the proceedings which are taking place in respect of Iraq and in that particular case there is a suggestion that the Human Rights Act does not apply in respect of those proceedings. So I would submit that it is feasible there will be proceedings that would be necessary to take this into account. With respect to section 134 more broadly, I do think there are a number of issues beyond the lawful authority which require further consideration. One relates to the Attorney-General's consent and that issue which is quite strong in relation to the requirement to extradite or prosecute. The second issue is the fact of how the courts in this country have interpreted the jurisdiction so that only cases that are post-1988 can be taken into account in respect of using universal jurisdiction; so only after the Act has come into force. So there are potentially certain holes.
Q12 Lord Bowness: You have mentioned the Iraq case. Is the principal problem with crimes of torture or alleged crimes which have taken place outside the United Kingdom? Have you got any evidence where the terms of that defence have presented a problem in practice in particular cases?
Ms Ferstman: In respect of those Iraq cases, another issue is the fact that the crime of torture is not being considered currently in those prosecutions, so in a way it is something which is mute in that case despite the allegations which have been put forward. We do not have a specific example but I would submit that there are a number of foreseeable areas in which we could see this could pose a problem in the future.
Q13 Chairman: What the Government say is that the reason they have the defence in section 134 is because their definition of torture is broader than that of the Convention, ie it includes unintentionally inflicting pain. So what would you say if the Government were to approach it in a different manner and say that they will change their definition of torture to the narrower definition in the Convention and abandon the additional defence?
Ms Ferstman: I do not take a view with respect to the wider aspects. I would take the view however that full compliance with the Convention Against Torture definition would be appropriate because the UK has ratified the Convention Against Torture. Right now it is wider in certain aspects but narrower in others.
Q14 Lord Lester of Herne Hill: Am I right in saying that the Committee Against Torture and the UN Human Rights Committee, and for that matter the committee dealing with race, have all said that States Parties must ensure that extra-territorial breaches are dealt with and not just territorial breaches, and that the problem is that the Human Rights Act has been interpreted as being territorial in scope and that is the subject of a pending appeal or appeals to try to see whether the Human Rights Act has extra-territorial claims. So far as international law is concerned as distinct from our domestic law, it is clear, is it not, that extra-territorial liability exists on each state which is party to the Convention?
Ms Ferstman: I would share that view, however one of the issues in the case which is still pending is the applicability of not only the Human Rights Act but the European Convention.
Lord Lester of Herne Hill: Yes, I meant that. When I say Human Rights Act, I mean also the Convention as applied to UK law. Thank you.
Q15 Baroness Stern: I would like to move on to the rather big question of expulsions and the use of diplomatic assurances and start by reminding you that Article 3 of UNCAT sets out the obligation not to return anyone to a state where they face torture. I think it is worth reminding ourselves what that says: "(1) No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. (2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights." You all argue that the Government's current efforts to conclude Memoranda of Understanding allowing for diplomatic assurances that individuals will not be tortured on their return, will breach the UK's obligations under Article 3 as well as other obligations. You also all agree that the diplomatic assurances are being used as a means of eroding the absolute nature of the legal prohibition against torture by allowing for a balancing of considerations of the risk of torture following deportation on the one hand and the interests of national security on the other. You also all point out the substantial practical difficulties as torture is usually done in secret, these states have already signed up to international treaties and torture is often practised without authorisation from on high by local law enforcement and security personnel. I think it is fair to say you all conclude that diplomatic assurances are legally unenforceable and there are no sanctions or remedy if the receiving state breaks the agreement. I would just like to point out to you that the Home Office position is that the courts will give proper weight to diplomatic assurances given by governments in good faith and, indeed, the Home Secretary told us that if the courts were to discount diplomatic assurances that would be to take a neo-colonial approach. My first question is to Human Rights Watch, but I am sure the other organisations might have a view. You will know that the European Committee for the Prevention of Torture, the CPT, stated that it had an open mind on whether a diplomatic assurance could be formulated in such a way as to be effective, although it had not yet seen one in an acceptable form. Would you agree with that in principle, or will diplomatic assurances always entail unacceptable risks?
Mr Ward: First of all, thank you for that summary which obviously has spared the Committee a lot of time in setting out our views. The issue of post return monitoring is clearly the most contested area presently in the debate over the use of diplomatic assurances. I think it is important to begin by saying what these proposed post return monitoring mechanisms are not. What they are not is anything that is comparable to the kind of systematic institutional-wide monitoring that the International Committee of the Red Cross undertakes. The International Committee of the Red Cross will not undertake monitoring in a detention facility unless they have global access to all of the prisoners in that facility. There are a number of reasons for that. One of the reasons is a moral one, which is that it is not morally acceptable to be in a situation where you are monitoring a select group of detainees within a facility while allowing the other detainees in the facility to be subject to whatever treatment they may be subject. That is one of the main reasons why many non-governmental organisations absolutely refuse to have anything to do with this form of monitoring. The second reason is a practical one, which is that if you are conducting interviews with detainees, assuming that you have confidential access to the detainees, you are monitoring the entire population, if reports of ill-treatment come to your attention and you have interviewed 100 prisoners, you can take those reports as the International Committee of the Red Cross to the prison authorities without fear that the person who provided that information to you will be clearly identified and will be subject to reprisals or, indeed, their family members will be subject to reprisals. That is not the case in respect of the kind of monitoring which is proposed under these diplomatic assurances, or these Memoranda of Understanding as the UK terms them. They are talking about monitoring of a specific individual or group of individuals after that person or those persons are returned. It begs the question as to whether or not the person will be willing, assuming that they have an opportunity to speak privately with the monitoring agency, whoever that will be, about their fears or, in fact, their ill-treatment knowing that information is going to be transmitted back to the government of the detention facility in which they are in, knowing that their relatives, who are not in detention, may be targeted as a consequence of that. I think that it is very important that when we talk about post return monitoring we understand what we really mean and what we do not mean. There are some other difficulties with post return monitoring. One of the most important ones is illustrated by the famous cases of the two Egyptian men who in December 2001 were bound, gagged, hooded, drugged and dragged off the streets of Stockholm on to a US Government leased aircraft and flown to Cairo. The Swedish Government, having denied them access to asylum using the exclusive clause, obtained promises from the Egyptian Government that the two men would not be tortured and that they would be given fair trials. There was no post return monitoring mechanism in the original assurances offered by the Egyptian authorities but, subsequently, an arrangement was made whereby the Swedish Embassy in Cairo went to the prison where the two men were held. Unfortunately, the first visit did not take place until five weeks after the men were sent back and, as Members of the Committee no doubt are aware, detainees are most at risk of ill-treatment during the first few days of their detention. When the Swedish Minister of Justice was asked subsequently why it was that they had not gone to see these men for five weeks, his answer was extremely telling. He said: "We could not have gone sooner because if we had gone sooner it would have sent a message to the Egyptians that we did not trust them". We are talking here about diplomatic assurances, promises made from one government to another, and diplomatic relations are something which governments set great stock by and do not want to ruffle or interrupt by making unwarranted allegations of torture and ill-treatment. One more point before I let my colleagues talk about it. The issue of independent monitors under these Memoranda of Understanding is very interesting. So far we have Memoranda with Jordan and Libya. In Libya there are not any independent organisations. The most independent organisation in Libya is run by the son of Colonel Gadaffi. Furthermore, in respect of the Jordan Memorandum of Understanding, and I know that we are going to talk about this later perhaps, the monitoring mechanism does not provide for public reporting, it merely provides for the reports conducted by the independent monitor to be fed back to the two governments, which brings me to another difficulty with post return monitoring, which is that neither the sending state nor the receiving state has an incentive to bring to light allegations or instances of ill-treatment because in the case of the sending state to do so amounts to an admission that it has violated its obligations under international law, and equally in the case of the receiving state it amounts to an admission that it has violated its obligations under international law. We do not consider when one puts together all of these facts and when one considers that in those cases where it has been possible to determine the fate of the detainees after return, there have been credible allegations of ill-treatment or torture in custody. In the case of Maher Arar, the Canadian-Syrian dual national who was sent from the United States to Syria via Jordan, the Commission of Inquiry that the Canadian Government established to look into the role of the Canadian authorities, recently the independent expert who was appointed to that Commission concluded that Mr Arar was tortured. Again, in that instance assurances were made by the Government of Syria to the Government of the United States. Assurances do not work and we do not consider reflecting upon the difficulties of post return monitoring. Again, the distinction between the kinds of effective systematic monitoring that the ICRC does and this kind of ad hoc one-off post return monitoring is capable of sanitising this mechanism which, again, as Lady Stern has said, is not simply exposing individuals to risk, it is also fundamentally threatening the absolute nature of the prohibition against torture.
Baroness Stern: Can I feed in some more very specific questions where the answers are probably quite short, which is not a reflection on the last answer which was very helpful.
Chairman: We are going to come back to Libya and Jordan specifically.
Q16 Baroness Stern: I just want to get this on the record. Are you aware of any cases where diplomatic assurances have proved effective in practice?
Mr Ward: No.
Mr Zilli: Diplomatic assurances with respect to the death penalty but, as we discussed in the previous session, this is a different mechanism or process altogether.
Ms Ferstman: No.
Q17 Baroness Stern: In the same mode, I want to move on to discuss who might be independent monitors. It is right that Human Rights Watch and Amnesty International both made clear that they will not act as independent monitors for diplomatic assurances. Is that correct?
Mr Ward: That is correct. I was in Geneva recently and had a meeting with the ICRC and they said to me that they would not participate in any such process.
Q18 Baroness Stern: What did you say as to whether you would participate?
Mr Ward: We also will not participate.
Mr Zilli: No, we will not participate.
Ms Ferstman: No.
Q19 Baroness Stern: Thank you very much. How difficult do you think it will be for the Government to find any reputable and independent monitors for diplomatic assurances? If you all refuse to do it - you, being reputable and independent - is there a risk that the Government will be left to rely upon less independent or less trustworthy organisations?
Mr Zilli: I think that question goes to the core of the attitude of the Government. You need to go back to the judgment given in the Youssef case to look at the real attitude of the Prime Minister with respect to diplomatic assurances. That was a false imprisonment claim brought by some Egyptian Nationals, one of whom was named Youssef. I think that laid bare the attitude of the Prime Minister with respect to diplomatic assurances. With respect to the case at hand, the Government for nearly four years has recognised - asserted - that the deportation of those individuals would be contrary to its international obligations and the non-refoulement prohibition. What has changed since then is the assertion of the Government that by relying on diplomatic assurances they will be able to ensure that those individuals will not suffer the risk that the Government has itself recognised all along. We consider that they are erosive and evasive on the non-refoulement prohibition. They are inherently unreliable and ineffective and clearly, as pointed out by Ben, discriminatory with respect to anybody else who happens to be held in these countries. The question should be how to prevent the occurrence of torture while in detention. The way to prevent the occurrence of torture in detention, in any place of detention, would be to comply with the safeguards provided in a whole host of international and domestic standards. You have safeguards with respect to access in these countries: what is happening with respect to incommunicado detention, notification of family and lawyers, visits, fair trial, due process guarantees and so on and so forth. Those would be the effective safeguards that would enable a Government to say "We are complying with the international obligations". The actual seeking of diplomatic assurances is only as a result of the actual admission by the relevant authorities that a risk exists, a very substantial risk exists.
Q20 Lord Lester of Herne Hill: While we are on this, I simply do not understand the Amnesty position and, therefore I want to test what you are saying. Surely Amnesty would be thrilled to bits if it had any access to people who were at risk of torture in the ordinary way and would want to impose its own conditions on access in order to get into a detention or torture or other place? What I do not understand is why you do not see the opportunity and say, "we do not approve of these mechanisms but if we are asked to do so, we would like to give it a try and seek to impose proper conditions of access", then you are in a position to complain if you do not get them. I do not understand this boycott position as being a sensible one for Amnesty to adopt.
Mr Zilli: We beg to disagree. I think what we call on is full compliance with human rights and human rights safeguards. We call for that compliance with respect to the United Kingdom Government and other governments. In those countries, in Algeria, Libya, Jordan and so on, we would be calling for the safeguards with respect to people in detention to be upheld and that would clearly also mean access to independent non-governmental organisations that would seek to be spreading the needs. We would not simply participate in a process which is flawed for a start.
Q21 Chairman: Can I follow up Lord Lester's question to you in this way. If there was a Memorandum of Understanding and so on, as we know we have with Jordan or Libya, could you not make a quid pro quo condition to you being the monitoring body to say, "Okay, we will monitor this particular individual but only if we have access to everybody else in the prison?" That would put both our Government and Jordon or Libya very firmly on the spot. Would that not be a way of using this as a lever to raise human rights matters generally in the particular prison concerned?
Mr Zilli: That is not Amnesty's modus operandi. As I said, I think we consider that by default, by their very nature, reliance on diplomatic assurances, the seeking of diplomatic assurances, betrays the very real fact that diplomatic assurances are being sought with respect to the non-refoulement prohibition where such risks exist. What we will call for is to take preventative steps to ensure that torture or other ill-treatment does not occur in custody and, as I said, I made reference to the safeguards. They are a panacea when, in fact, the institutional framework should be independent, impartial and judicial through enforcement and complies with and is relevant to international human rights standards and so on and so forth. There is nothing else I can add.
Q22 Baroness Stern: Can I wrap up this whole section by broadening out the discussion we just had with our other two witnesses. The Home Secretary's view when he came to see us was people concerned with human rights perspective should welcome the Memorandum of Understanding because, he said, "They will result in a much stronger relationship on the human rights agenda". Is there any case to be made that these bilateral arrangements could help to raise standards more generally in countries who practise torture by initiating a debate on the treatment of detainees and by allowing the independent monitors access to a prison where they might see the person they are concerned about, and they might see everybody else as well? Is there any argument, do you think, to say that it would forward the cause of human rights?
Ms Ferstman: If I may, I think part of the problem is the linking of the monitoring to individuals and part of the concerns which have been raised by the other speakers relate to the fundamental flaws with respect to the monitoring process and the belief that, in fact, these monitoring mechanisms will not do what they need to do to protect the individuals. Whether these monitoring mechanisms have a broader impact generally is really beside the point because it does not actually take you back to where you need to be to protect the individuals who are being sent back. That is what I would suggest is the biggest problem. If there is no faith in the merits of the monitoring to protect the individuals who are being sent back, the broader impact more generally, more diffusely, is less relevant. There are other mechanisms. Many of these countries have ratified the relevant conventions. There is the optional protocol which is to set up a system of monitoring and there are all sorts of ways in which broader mechanisms can be done. When you are talking about sending someone back it is here, in my submission where the problem is.
Mr Ward: I can only repeat that and say we would be delighted if the United Kingdom Government would put human rights at the top of its agenda in its relations with these countries. Obviously there is the mechanism of the European Union and the neighbourhood programme and so on. There are clearly mechanisms and levers which could be used and if there was a genuine commitment on the part of the UK Government to help Libya improve its torture record systematically by putting in place all of the mechanisms required that would be extremely laudable and we would welcome and support it. As Carla said, that is not the point. We are talking here about Britain's obligation not to expose people to the risk of torture and how it meets that obligation and whether it this is an effective mechanism for protecting people at risk, and it is not.
Q23 Chairman: Can I ask you one specific question. Do you know of any organisation or anybody who is prepared to do this?
Mr Ward: Our understanding is that there is a small Jordanian organisation that has agreed to carry out monitoring with financial support from the UK Government. I would note, in relation to that, we know that in Egypt one of the main Egyptian human rights organisations, that is headed by the former UN Secretary General, Boutros Boutros Ghali, was approached by the British Ambassador in Cairo and their reply when they declined eventually to carry out that monitoring, I think was very interesting. The reason that they gave, as I understand it, was they did not want to jeopardise their relationship with the Egyptian Government. In other words, they did not want to find themselves in a situation where in order to do their monitoring effectively they would jeopardise their relationship with the Egyptian Government. That is a small Jordanian human rights organisation. I am not aware of any international human rights organisation that has been willing to carry out such monitoring.
Q24 Chairman: Can I put a specific question to you because earlier you did not have a chance to answer this specific question which I put to Mr Zilli in very sharp terms and Lady Stern in similar terms to Carla. If what you say is right, and nobody is proposing that you are wrong, that puts you vis-à-vis our Government, and to that extent the receiving Government in a very, very strong bargaining position indeed to drive a very hard bargain for your services, as it were, in terms of this monitoring process. I understand your very pure position in relation to monitoring but I would have thought the object of human rights organisations was to get into these prisons, find out what is going on and blow the whistle. If it was possible for you, therefore, to use this process to say to our Government, "Okay, we know you have got a problem, we will do it but only on condition we are allowed free unfettered access into these prisons to report on everybody in there and whatever we find", what is wrong with that?
Mr Ward: Well, if it was something which was not doing serious damage to the international prohibition of torture then it is something that we might be willing to have a discussion about. The difficulty is that even if one puts aside the damage which it is doing to the prohibition, and I think that is an important element, we are not talking about the risk to the individual and whether that risk is ameliorated by the mechanism, we are talking here about damaging the nature of the prohibition itself. I hope we are going to talk later about the current case in the European Court of Human Rights, the Ramzy case, because there is another aspect of that. Would the Government of Libya give unfettered, without notice, access to an independent, international human rights organisation to go anywhere in its detention facility at any time to interview anybody in private and make the findings public? I think it is very unlikely. Again, we are not talking here about a tool for improving human rights, we are talking about a tool for circumventing the non-refoulement obligation, as the UN Special Rapporteur on Torture has said.
Chairman: In answer to your question, nobody has actually asked in this context. I would like to bring Mr Norris in to particularly focus on Libya and Jordan.
Q25 Dan Norris: My questions relate to the Memoranda of Understanding and you have touched on those already to some extent. Could you draw on your experience of how people are treated as detainees in the countries where we have already agreed Memoranda of Understanding or are part way through? I am thinking specifically of Jordan and Libya, which you have made reference to already, and Egypt, Algeria and Morocco who are in the process of agreeing. Could you think carefully from your own experience about the risks that people deported from this country going to those countries would face. Tell me what you think the dangers are.
Mr Ward: In a way, I think that the question is somewhat misplaced because of the point that my colleague made earlier. We are talking about individuals who the Government already recognises to be at risk of torture. While it is true that it has been determined by international human rights bodies that where there is a systematic practice of torture in a country, in order to determine whether or not a person is at risk of torture you do not need to go beyond the fact that there is a systematic practice in that country, generally speaking when you are making an assessment about whether or not a person can be returned, you have to look to that particular individual's circumstances to determine whether they themselves are at individual risk. Certainly when we talk about the former Belmarsh detainees we recall that a very reason for the indefinite detention mechanism was because the Government said that there were individuals whom it could not prosecute and could not deport because to do so would cause it to be in breach of its obligations under the European Convention on Human Rights, and equally under the Convention Against Torture. We are talking first of all about individuals who in many cases are wanted on terrorism charges, in some cases have been tried in absentia, who clearly are identified by the British authorities as being suspected of involvement in international terrorism. One thinks, for example, of the Algerians who were acquitted following the so-called Ricin plot who we understand the Government wishes to deport. These are individuals who by virtue of characteristics that they themselves have, or characteristics that are imputed to them, are already at risk of torture. When one makes an assessment about the effectiveness of diplomatic assurances as a safeguard against that ill-treatment, one does not need to go into looking at the objective of a country and the situation in each of those countries. Having said that, when one does look at the situation in those countries, one can see that these are countries that have very serious problems with torture, particularly with people who are labelled as Islamists or have a suspected involvement in terrorism. In fact, as the UN Special Rapporteur on Torture, Manfred Novak, has said, it is exactly because these countries have these records on torture that the Government feels that it is necessary to conclude these Memoranda with the countries as a means of facilitating the deportations, transfers or extraditions. In other words, if you were talking about proposed deportations to Italy, or proposed deportations to Norway, it would not be necessary to obtain Memoranda of Understanding. Human Rights Watch and Amnesty International have extensively documented the situations in those countries and we would be happy to provide detailed information to the Committee about that research. I wonder to what extent it is helpful to really go into the detail of the torture records of these countries given our limited time that we have.
Ms Ferstman: If I may, I think another point which is worth discussing a little bit is the remedies that exist in these countries with respect to torture and the extent to which victims of torture have access to justice in any real way. Certainly there is no European Court of Human Rights that applies in these countries, nor for the most part are there functioning legal systems that in a very detailed way provide access to justice for victims of torture whilst they are in detention or afterwards. This is something that I would suggest should equally be taken into account as part of your considerations.
Q26 Dan Norris: I cannot speak for the rest of the Committee but I am sure any submission you make would be helpful. I feel anyone reading the transcript of our discussions would not have a good feel for the kinds of risks that may be faced in general. I appreciate you are talking about individuals, and I perfectly understand why you want to do that, but for busy people trying to make sense of very complicated situations without the benefit of your experience and knowledge, it would be extremely helpful if in general you could give some kind of idea about the concerns you have about each of the countries that have either signed up already or are in prospect of signing up.
Mr Ward: We would be happy to do that. This is from the most recent US State Department report: "Reported methods of torture in Jordan include beatings, sleep deprivation, extended solitary confinement and physical suspension". Libya has an extremely poor record on torture. In a number of these countries torture is systematic, certainly in Saudi Arabia and in Egypt. We are really talking about countries that are in flagrant, flagrant breach of their international obligations in respect of torture, particularly in respect of people who have a national security profile.
Q27 Baroness Stern: Could we ask for the definition of physical suspension?
Ms Ferstman: Often when referring to physical suspension, persons are suspended from the ceiling with their arms behind their back and their legs up and then they are beaten in that position. That is a practice that has been used in several countries. I assume that is what is referred to there.
Q28 Dan Norris: Assuming that you were happy with the agreement, which I hear you are not saying, what chance do you think there would be of the relevant governments actually ensuring that their officers on the ground were applying the rules in any case? How would you feel about that? Do you think even if there were well-meaning people in government it would be impossible to make these agreements stick, as it were?
Mr Zilli: I think it goes back to -----
Q29 Dan Norris: You are talking about a systemic thing.
Mr Ward: Where you are talking about systematic torture then I think the answer would be no, the government would not be capable of honouring a promise even if it were made in good faith with every intention of carrying it out because there would not be the sort of control necessary. Where the practice of torture is systematic it means that it is routine in the conduct of the operations of the security forces, it is not that an order is given that a particular person should be subject to ill-treatment.
Mr Zilli: I think there is a correlation between the lack of adequate safeguards and institutional deficiencies and the occurrence of torture or ill-treatment in custody. You have to look at things like how long can people be held without charge, is incommunicado detention allowed, is there such a provision that would guarantee habeas corpus, provision with respect to notification of the family, lawyers, access to doctors, personal and confidential communication with counsel, and so on and so forth, due process safeguards. That is the issue. We are talking about countries where there are very serious and systemic flaws and a systemic lack of compliance with relevant minimum international human rights standards with respect to people in detention, for example, in order to ensure that human rights can be upheld. I think my colleague, Carla, has also referred to the lack of institutional framework with respect to the duty to provide reparation and redress in cases of torture and ill treatment where it occurs.
Q30 Dan Norris: Without needing to repeat yourself, and I hope you do not feel you need to because you made a very clear point, in terms of the Memorandum and the terms of the Memorandum, do you feel that they are an advance on previous assurances against torture, particularly the provision for independent monitoring? I think you partly touched on it earlier. Can you state why rather than just a general answer?
Mr Ward: Oddly, I think they are an advance but not in a positive way, in a negative way because what they do is try to systematise an extremely problematic practice. All of the concerns which we and international human rights experts and bodies have had about the way in which the practice of states seeking assurances does damage to the torture prohibition are made all the more trenchant by the fact that these are blanket agreements that cover all detainees who can be sent back to a particular country. There is, in effect, an effort to try to create a veneer of international law to make what are essentially mere promises and mere assurances to look like a treaty or a binding international agreement. I think it is also important to look at exactly what these agreements say. The thing that is most striking about the agreement with Jordan is that the word "torture" does not appear anywhere in it and "death penalty" does not appear in it.
Q31 Dan Norris: Can I ask you what words are used if torture is not used?
Mr Ward: It talks about humane treatment in accordance with international obligations. That is the point, really it does nothing more than re-state that these countries are bound by their international obligations. In fact, it says that the UK will undertake to respect its international obligations, and so, ironically, one could make the argument that the agreement, if one is to respect it fully, would prevent the UK from sending people to Jordan because to send people would not be in accordance with its international obligations.
Q32 Dan Norris: Coming back to Jordan and Libya, we understand the monitoring has been agreed. Do you think that there could be particular guarantees in individual cases? I notice your emphasis on the individual in the context of all of it. Could there be particular guarantees in individual cases that would prevent any breach? Do you think that could be possible?
Mr Ward: Our view is, and this is based on our extensive research of the use of these mechanisms, that they are essentially neutral. They have no impact on the question of risk in a particular case and, therefore, they are not a factor that should be taken into account when considering risk. If there is no risk, then there is no obstacle to the person being returned. If the risk falls below the threshold required under the Convention Against Torture or the European Convention then the person can be returned. Our view, and again this is based on our detailed research of this question and our discussions with international human rights experts, is that diplomatic assurances have no effect on the question of risk.
Q33 Dan Norris: Thank you for that. My final question is would the difficulties with these and other issues that we have been talking about be addressed by minimum international standards for diplomatic agreements against torture?
Mr Ward: That is another area which, like post return monitoring, is on the table at the moment. You may be aware that there is going to be a meeting later this year in Strasbourg at the Council of Europe of the Working Group on Terrorism and it is our understanding that this question is precisely the one which is going to be discussed.
Q34 Dan Norris: So it is on the table but your view is that it will not be addressed?
Mr Ward: No. Our view is that there is no way that these devices can be set aside, there is no way they can be made consistent with state's international obligations. Again, it is not simply that their using a particular case exposes a particular detainee to a risk of torture, but the very practice of states seeking them threatens to create, effectively, a loophole within the Article 3 prohibitions. States have an obligation of non-refoulment but if they seek an assurance they effectively can bypass that obligation. That is our view. That is the view of a growing number of international human rights experts. That is why we are so emphatically opposed to these mechanisms.
Q35 Lord Lester of Herne Hill: The traditional approach of our courts in this country to specific assurances given when someone is being sent to another country, or territory, and has been to give full faith and credit to the international agreement or assurance. For example, there is a case called Petronas (?) where someone was being sent back to Greece under the Junta. There is a case called Launder where someone was being sent back to Hong Kong after the PRC resumed sovereignty, and in those two cases, one fairly recent, the Law Lords adopted essentially a separation of powers approach and said where the executive branch of Government has entered into these assurances, and where they are specific, the courts will not essentially review them. These are not cases about torture, there are cases about fair trial, and that is related to due process. I imagine what you would say - I would like your answer - is that was not torture and times have changed and you cannot expect the UK courts now to adopt that approach. How do you deal with the problem of our courts essentially reviewing the executive branch in deciding what should be done in the context of the Torture Convention. I am talking only about UK courts and then I am going to ask you in a moment about the European Court. It is a question of UK law.
Mr Zilli: In respect of UK law, the Lord Justice certainly ruled in Ramzy that, in fact, the extradition would expose the person to such a fundamental unfair trial that that could not be contemplated. Clearly, the judiciary in this country does exercise a supervisory function with respect to the actions in this case of deportation. I do not see why the judiciary would shy away if they have exercised it quite effectively with respect to fundamentally, an unfair trial. I cannot see the UK judiciary, even leaving aside the question of the Convention, just by the very nature of its case law as a matter of English law would shy away from exercising their discretion in looking at the question of refoulement as they have in the past.
Mr Ward: You may be aware that there is an extradition case called Zakayev involving a Chechnyan who the Russian authorities wanted to extradite back to Russia in 2003 and that case was heard at Bow Street in the extradition court. The interior minister came from Moscow and gave witness evidence in the form of assurances that Mr Zakayev would not be subject to ill-treatment if he was returned to Russia. Those assurances were not accepted by the court although the court said it accepted that they were given in good faith, and the extradition was blocked on that basis. Clearly one can imagine the Special Immigration Appeals Commission would feel that it was capable of making a determination of risk based on its own jurisdiction.
Q36 Lord Lester of Herne Hill: If I can turn to the Chahal issue, which you have already mentioned. As we all know, the UK, with some other European states, has sought to intervene in a pending Dutch case, Ramzy, seeking to persuade the Strasbourg court to depart from the absolute nature of its judgment in Chahal and instead decide that a balance should be struck between prohibition against torture and the need to protect national security. What do you think are the practical implications if the UK Government argument were to succeed? Probably one of you will do on this.
Mr Ward: I think one of the most important things to emphasise about the attack on the non-refoulement prohibition is that the implications of it are likely to be felt much more widely than is perhaps understood. We are not simply talking about its application in the role of national security cases. In relation to diplomatic assurances, we have already seen both Canada and the United States seeking assurances in respect of non-national security cases where there is a risk of torture. We would certainly take the view that if a balancing test were permitted to be introduced into the European Court's jurisprudence, if the non-refoulement obligation was made less than absolute, we would be very concerned that the implications would be felt by a very large potential population of individuals and not simply in the narrow realm of national security. I think that is one very real fear, one very real concern about that. I know there is real concern among those who practise in refugee and asylum jurisdiction that eroding non-refoulement in respect of torture may have very, very damaging long-term consequences for the people who they represent.
Q37 Lord Lester of Herne Hill: If I could locate this in a more practical way than you are at the moment. Take someone who is a really nasty, evil piece of work in every way who threatens the national security of this country, and there is enough evidence of that but not enough to try him, and therefore the authorities wish to send him to another country where there is a risk of torture or grounds for believing there is a risk of torture. As I understand Chahal, what Chahal decides in subsequent cases is that if there is a substantial risk of torture you cannot send that person back even if that person threatens national security in this country.
Mr Ward: Exactly.
Lord Lester of Herne Hill: Therefore, it is not right that the consequence of changing the Chahal test would be that the UK or other countries would be able to send such a person to a country where there are substantial grounds for believing they will be tortured. If that is right, one sees the practical implications that way, but what about the other way? Suppose Chahal remains in its pure absolute form, as does Article 3 of CAT, Convention Against Torture, what are you going to do with such an evil and undesirable character who cannot be sent back and threatens national security here?
Q38 Chairman: Before you answer that, I think you answered that one last time, Mr Zilli, the last time we had that question. Perhaps Mr Ward might like to answer.
Mr Ward: Very briefly, we have not seen that the criminal justice system is incapable of meeting the threat of terrorism. There is surveillance, subject to appropriate judicial safeguards, and there are a range of criminal offences, including conspiracy and attempt ----
Q39 Lord Lester of Herne Hill: I think the Chairman has rightly pointed out that I have asked a question we had answered last time extremely clearly. I take it from your evidence that you would prefer the judgment of the New Zealand Supreme Court in Zaoui to the judgment of the Canadian Supreme Court in Suresh. Suresh said that people could be deported to face torture in exceptional circumstances whereas the New Zealanders refused to follow Suresh expressly and said, on the contrary, the obligation is absolute. Am I summarising your position?
Mr Ward: The UN Human Rights Committee reviewed Canada this month and expressed concern about the decision and, indeed, the legislation which followed the decision and said that it amounts to a grave breach of Article 7 of the Covenant, which is the part that deals with torture. The UN Committee against Torture, having sat in the committee room, were frankly incredulous that the Government of Canada sought to defend this decision which is plainly inconsistent with their international obligations.
Q40 Lord Lester of Herne Hill: Have you read the Zaoui decision?
Mr Ward: I have not.
Q41 Lord Lester of Herne Hill: May I recommend it to all of you. It seems to me that its reasoning is quite powerful.
Mr Zilli: Can I just make a comment. I do not think it should necessarily follow that if the UK and the other three governments succeeded in the Ramzy case that the UK should just bow to the Government and allow the deportation of individuals. As was made clear, for example, in the White Paper, Bringing Rights Home, the point of the enshrinement of the Convention on Human Rights was that they would seek to provide a floor and not a ceiling. Therefore, Article 3 of the Convention Against Torture should kick in and the courts would be able to exercise all of the non-refoulement principle enshrined in the Refugee Convention should kick in as well.
Q42 Mary Creagh: I am going to ask about use of evidence obtained by torture abroad. Is it ever permissible to use such information, for example in attempting to prevent a terrorist attack?
Ms Ferstman: As a number of organisations, including the ones here, have intervened in a case coming before these courts, the position put forward in that case is there is no moment when that evidence should be used other than in a proceeding relating to the allegation of the torture itself. The reason why it is so impermissible is, firstly, it is the law, that is what is stated clearly in the international obligations, but, secondly, looking at it from the more pragmatic point of view, if you use torture evidence you are saying that it is okay. Basically you are tainting the process in which you are seeking to use the evidence. The reliance of the evidence has the effect of actually encouraging torture and also suggesting that the practice by which it was used is alright. In respect of any ----
Q43 Mary Creagh: So it is not permissible to use it to prevent a terrorist attack on London, for example, or any other major city? You think that our security services and our police forces should not act upon that intelligence.
Ms Ferstman: On the use of torture if we start from the standpoint of how this information is going to be obtained and how it is going to be used, in the experience of a number of organisations - this has come up in the inquiry in Canada recently - there are examples in which it has been suggested that the officials of the Canadian Government have put questions to interrogators. In a sense, it is a distancing from the torture, but a direct use of the information. When the information is used there is a complicity in the obtaining of the torture.
Q44 Mary Creagh: That was not my question, with respect. I not giving the example of our security services asking someone else to ask questions through torture. I am saying may our security services or our police services ever use such evidence in order to protect human life in this country?
Ms Ferstman: I think the simple answer to that is no.
Q45 Chairman: Can I ask a question there before you go on. Let us give you a specific example. You talked about Algeria, let us suppose the Head of Security in Algeria phones up and says, "we have just had this person strung up by his thumbs for a few days, he has told us that tomorrow Mr Bloggs of 47 Acacia Drive is going to blow up London Underground by putting a bomb at Westminster tube station." He phones up Eliza Manningham-Buller and tells here that. Is she supposed to entirely ignore that information with the result that hundreds of people may be killed?
Ms Ferstman: It is a question of how this information is used.
Q46 Chairman: Supposing you have got that information, you pass the information to the police, the police go around knocking on the door of Mr Bloggs, they open the door and find he is there in flagrante delicto with a whole pile of suicide bomb equipment ready to strap on him for the following morning. I am putting this question to Ms Ferstman, please.
Ms Ferstman: If you have the information that is coming and you do not know where it is coming from ---
Q47 Chairman: No. I am saying the head of Algerian security phoned Mrs Eliza Manningham-Buller and told her this. Do you ignore it?
Ms Ferstman: To use the evidence will encourage the torture, so we have to take a position of principle in this respect.
Chairman: So you are prepared to see 100 people blown up on the tube station for your position of principle?
Q48 Lord Lester of Herne Hill: Surely, a distinction should be drawn between what the intelligence service may do to avert a catastrophe and whether the evidence obtained by torture can be used in proceedings in court. As you probably know, the Supreme Court of Israel, which after all has got quite a lot of experience in this, said that in the latter case there should be no circumstances in which the evidence could be used that could be admissible in evidence. Is that not a different question from the questions being put to you by the Chairman?
Mr Ward: I think the difficulty with this hypothetical, which is a variation of the ticking time bomb hypothetical, is what happens the second time, what happens the third time, and what happens the fourth time. Certainly, by the second time, if not by the third time you are in a relationship with a government where you are accepting regular by information that you know has been obtained under torture and that is wholly inconsistent with the international system for the prevention and protection against torture.
Q49 Mary Creagh: Is not the duty of the state to protect life, the protection of human rights? Does that not take priority in these cases?
Mr Ward: By that logic, we ought to be able to torture people to get information from them about what they may know, what information they may have. We ought to be able to torture their family members if that might be an effective way of getting information.
Q50 Chairman: That is not what is being put to you. What is being put to you is this, it is nothing to do with us doing the torturing. Suddenly, out of the blue, we get a phone call from the security service from a dodgy regime overseas that says, "we have got this very hard information, your metro is going to get blown up tomorrow morning", and your argument is we should ignore that.
Mr Ward: My point is the second time you take it and the third time you are complicit in the torture, if you are not the first time.
Q51 Mr Shepherd: The first time is the real anxiety. This is where I have a difficulty too. You are travelling beyond people's comprehension as to international agreements on international human rights agreements, et cetera. The rationality of this to most people is this averts a major strike - and it is all hypothetical as you rightly point out - surely it is the duty of those who receive that information to investigate the information and they may or may not know whether they have been tortured because the nature of regimes is often capricious. It may have been elicited in ways other than torture. This is not something that the public would understand or someone like myself can pussyfoot around it.
Mr Ward: What are the implications of saying, yes, of course? What are the implications of asking the hypothetical question and answering the hypothetical question, yes, we should accept the information?
Q52 Mary Creagh: The answer is to protect life.
Mr Ward: We should accept it, we should act upon it. It then begins the process whereby we say, as I said at the very beginning of my remarks, we do not torture people but then if other people torture people we do not mind. That is simply morally unacceptable.
Lord Bowness: Can I say that is a terrible and almost deliberate misrepresentation of the question my colleague and you put to the witnesses. I have to say that as somebody who is very firmly of the view that we should not be complicit in torture, not use evidence obtained to secure convictions, to suggest that you ignore the sort of situation that has been put forward beggars belief. Nobody outside this room would find it possible to understand the attitude you have adopted.
Chairman: Lord Lester has drawn a distinction, and I think it is the correct distinction, between using the evidence obtained by torture in court to secure a conviction as opposed to protecting human life. What you have effectively said is you have put your principles in this respect above the protection of human life.
Q53 Lord Lester of Herne Hill: I mentioned the Israeli court. If you read President Barak's letter recently he also makes another point which I think you will disagree with but I think is important he says, "there may be situations where, in retrospect, an interrogation may be used as a criminal defence of necessity". What he is saying there is even within this country there might be situations where - I think the ticking bomb situations is ones that is unreal in most cases but let us say it is a real problem - someone is, in fact, tortured and then we prosecute the torturer who says, "They were about to blow up a nuclear power station and I did it for that reason and by way of defence I say there is the defence of necessity". That is what they are saying. Having said that the prohibition against torture is in general an absolute one they put that forward. I think you would say in no circumstances could the defence of necessity ever be used for torture.
Mr Zilli: I think there is a distinction to be drawn between whether the person accused is the torturer i.e. he has committed the crime or is the person who somehow is involved in this so-called spontaneous transfer of the torture, whether or not that person could, in fact, rely on the defence of necessity. I think to go back to the point I made, I think the premise of the question is misconceived - I do wonder whether someone can come up with a situation where that has arisen. In any event, if that is the case, I cannot see why you would not be making the same kind of distinction, you would not be drawing the same kind of distinction with respect to the torture committed by UK officials. If you want to put over and above the duty to protect life, the duty to prevent an act of torture, on a sliding scale, I cannot see it would make any difference in distinguishing whether or not the acts of torture are perpetrated by UK officials or officials abroad. You are asking this question to an organisation such as Amnesty that has campaigned for 40 years for the eradication of torture. The only way you can effectively campaign for the eradication of torture is to say there is never any justification whatsoever for the use of so-called evidence obtained through torture. The duty of the state is to take all necessary measures to ensure that loss of life does not occur, and we would be the first ones to say it is incumbent upon the state to conduct a review to ensure that all necessary measures are taken, but as the Romans said, "Dura lex, sed lex" and this is a matter of the rule of law. State officials cannot abandon the rule of law and become complicit. I am going back to the Barak point about democracy fighting with one hand behind their back. It cannot become effectively complicit in this. To be honest, I think what is misplaced is to resort to this idea of the ticking bomb scenario. What is taking place, and we know is taking place, is the interrogation in the complete legal limbo of people held at Guantanamo Bay, Bagram air base, Algeria and other places in custody. What we do know is that the transfer of intelligence is not so spontaneous. We know it from the statement made by Eliza Manningham-Buller in the context of the A case where it is clear that the attitude of the intelligent services is, "We do not ask questions with respect to provenance". We do not ask questions, despite the fact that, in fact. ----
Q54 Chairman: I think we will come back to this point in particular. I want to get it absolutely clear where you stand on this major issue. I think Lord Lester put a question and perhaps Mr Ward might give us his firm view on this, which is the defence of necessity where the torturer himself in the nuclear power station scenario is facing trial and says the defence of necessity applies because, "if I had not done this, we would have had a nuclear power station blown up and possibly hundreds of thousands of people killed". You say the defence of necessity can never apply in those circumstances, do you?
Mr Ward: I do not know what view British courts would take but the international law is absolutely clear, there is no defence of necessity in that.
Q55 Lord Lester of Herne Hill: You are saying that it would be an abuse of power for the Attorney General to refuse to prosecute on the grounds of lack of public interest.
Mr Ward: I cannot comment on the way in which it would be applied in domestic law.
Q56 Lord Lester of Herne Hill: Forget about domestic law, you are saying that it would be an abuse of power for any country where this occurred to refuse to prosecute on the basis of the wider public interest. I think you have to say that, do you not?
Mr Ward: No, I do not express a view about that.
Q57 Mary Creagh: One of the questions we asked the Home Secretary when he came here was what systems and processes he had in place personally, and the Home Office had in place corporately, to ensure that they were not using evidence obtained under torture. There was a fairly light reply on that. What sorts of inquiries do you think should be put in place? If you were the Home Secretary, what questions would you be asking to ensure that you were not receiving evidence that had been obtained under torture?
Mr Zilli: If I may refer to a decision by the Federal Court of Edmonton, Alberta, in Canada. The case is Khadr v Canada. The case concerns an injunction which was granted pending trial with respect to whether or not the Canadian intelligence services could continue to interrogate a Canadian National held at Guantanamo. The injunction was granted on the basis that the interrogations in the complete legal limbo black hole that is Guantanamo Bay conducted by members of the intelligence services of the Canadian Government would be in breach of the rights enshrined under the fundamental charter in Canada. That is really the starting point.
Q58 Mary Creagh: I am asking for practical examples.
Mr Zilli: In practice I would say that there should be put in place something akin to a rebuttal presumption on the basis of which if information is gleaned from outside, such as Guantanamo Bay, Bagram airport, and so on, per se it should be regarded as suspect and, therefore, cannot be used. It is up to the Secretary of State to discharge a burden of proof upon it, which should stem from the duty to inquire to a reasonable standard whereby the Secretary of State can demonstrate that, in fact, such information was obtained in a lawful manner.
Q59 Mary Creagh: You have said there is a system of black spots, and that is very clear, but what about grey spots where if you ask, "Was this evidence obtained under torture?" they will say, "Of course not"?
Mr Zilli: I do not think that is acceptable.
Q60 Mary Creagh: How do you go about challenging it then?
Mr Zilli: The challenge is that already there is a very clear cut prima facie case made that information that is gleaned in places which are outside the rule of law is information that is de facto compromised.
Q61 Mary Creagh: We accept that. We understand that. I am asking you about countries which are not Guantanamo Bay and not Bagram airport, I am asking you about countries where you may go back to the services where there is perhaps legitimate government. When you ask people there, "Have you used torture", and they say "No", what do you do?
Mr Zilli: I apologise. I take your point. The question then is in what circumstances was the evidence obtained. Did the detainee from the first moment of detention have access to all the necessary judicial safeguards that we regard as the bedrock of the rule of law in this country, for example, and then you get your answer.
Q62 Chairman: If they are such dodgy characters then they will not tell you the truth, will they?
Mr Zilli: Certainly it is a way of establishing whether or not there is such a thing as access to lawyers, incommunicado detention is guaranteed. In this country, for example, the law provides access to a lawyer will be guaranteed after X number of hours and so on, that interrogations are conducted in a certain manner, in the presence of counsel. I do not think that is beyond the powers of inquiry of the Secretary of State to ascertain whether or not the information was obtained in a lawful manner.
Q63 Mr Shepherd: There must be very few countries in the world that meet these criteria. I am thinking of India, the question of governance, et cetera. This Committee went there and they cannot be held responsible because they do not know what is happening in Bengal or whatever. I just postulate this to you: by the criteria you are announcing, which are absolute, almost no-one can meet them.
Mr Zilli: Certainly I think there are serious concerns with respect to admissibility of evidence and even in this country with what is being contemplated, for example, in the extension of detention after 28 days. That does not mean for some reason Amnesty should not be making the point that, in fact, international safeguards do exist. States themselves are joined voluntarily by their ratification of certain standards to this Treaty. That does not relieve them. You cannot say, "Because many states fall foul of this guarantee, we should accept the situation as is". I think the whole system of international monitoring, of protection, and the obligations arising from the torture prohibition, ie that every state as a member of the international community owe it to one another not to take cognisance of anything that is obtained through a violation of the prohibition ----
Q64 Mary Creagh: Perhaps I can move on and ask Mr Ward, are there any other long-term strategies that you can think of to minimise the risk of reliance on evidence obtained by torture? What more could be done by the intelligence agencies to influence foreign intelligence agencies?
Mr Ward: In relation to the more general question, it is absolutely right that it should not just be a matter for the Home Office, for interior ministries, it should also be a matter for foreign ministries, intelligence services and, indeed, all branches of government that are in relations with other states. Clearly if the witness evidence that Eliza Manningham-Buller gave to the House of Lords Judicial Committee is indicative and questions are not asked, particularly where there is not a strong relationship, that is going to make it very difficult to find out what is happening. Also, it is going to send a signal or a suggestion that Britain does not really care very much about the circumstances in which evidence is obtained. I think more broadly it is really a question for British Government foreign policy towards these countries making clear that these countries' records on torture and their respect for their obligation in relation to torture are something that the UK considers to be an extremely important part of its relationships with those countries and that it wants to see them improve their records, and help them to improve their records. It does seem to me that it is very difficult to seriously engage in that process if some parts of Government are sending a different message and saying, "We do not really care. We do not really mind. We do not want to know what you are doing". It needs to be a consistent message coming from all of the branches of government in its relations with those cases.
Q65 Mary Creagh: Do you think the UK is putting out a consistent message?
Mr Ward: I do not feel that it is. When I spoke at the beginning of my remarks about the Foreign Office's Annual Report, which talks about some of the work which the Foreign Office has done in promoting compliance, in encouraging states in different parts of the world to meet their obligations and working to eradicate the practice of torture worldwide as they say, then at the same time to read the Head of MI5 saying, "in the Algerian example, no inquiries are made", the questions are not asked, that does not assist in the process of trying to get that particular country to improve its record.
Mary Creagh: Thank you.
Q66 Chairman: I would like to ask you some questions about the alleged use of British airports for stop-overs by US security services for extraordinary renditions. We have contacted the Scottish police and they tell us that contrary to what has been reported in the Scottish press, the Strathclyde Police are not investigating the matter of extraordinary renditions stopping at Glasgow and Prestwick Airports but there have been press stories, certainly in the Glasgow Herald, the Sunday Herald, and also in The Independent on Sunday, that there are very strong suggestions that UK airports are being used by the Americans to transport prisoners from one country to another. What evidence do you have that this is happening other than the indirect press reports because what we are very interested in trying to do is to find out whether there is firm evidence of people being transported or whether you see it as press hype.
Mr Ward: That is a question which I put to my colleagues who work on the US involvement in these matters and who have copies of a number of the flight logs of aircraft which we know they use for prisoner transport. What they said to me was that Prestwick, Glasgow, RAF Northolt and Luton all saw regular stops by planes known to have been used for prisoner transport, in particular, Prestwick, Glasgow and RAF Northolt.
Q67 Chairman: Known to be used or have been used on this occasion?
Mr Ward: Known to be used for prisoner transport ---
Q68 Chairman: In general terms or specific?
Mr Ward: In general terms. What we do not have is any evidence that those aircraft were carrying detainees when they made those stops or whether they were simply fuel stops. Nor do we know if it was shown that those aircraft were carrying detainees when they made those stops whether the UK authorities have knowledge of the fact that the aircraft were carrying prisoners. As you know, the UN Special Rapporteur in respect of human rights while countering terrorism has specifically asked the Government about this. That is as far as we are able to go based on our inquiries.
Q69 Chairman: Presumably you can produce an analysis of those flight logs for us which would be helpful.
Mr Ward: Yes.
Q70 Chairman: As far as I understand it, there is no allegation that the UK is complicit in this actively. The question is whether we may turn a blind eye to something we did not know about.
Mr Zilli: I think, to some extent, it is a very difficult issue for organisations such as Amnesty to research because, in fact, what we do know is that people who were transferred, say, from Afghanistan, from Kandahar or Bagram to Guantanamo Bay or, like in the Agiza case which involved the transfer of two individuals from Sweden to Egypt eventually, the unlawful rendition of these people were drugged, so it is very difficult. Even those who have been released from Guantanamo Bay, and I was at a conference this weekend when many of them gave testimony on what had happened to them, have very, very little recollection of the transfer, because they had to wear earmuffs, goggles, they were drugged and so on. They had no idea of the number of stops that the plane had undertaken, if any. I think it is a question of, again, there is a duty upon the authorities to conduct an inquiry and if such an inquiry cannot be conducted completely openly, there are certainly parliamentary inquiries that can ask for evidence of the security services to ascertain what they do know about it. I think there is certainly a duty to conduct these inquiries. I think with respect to the involvement of the UK in the unlawful rendition of individuals we do know that in the case, for example, of Bisher Al Rawi and Jamil al Banna, who were travelling on their own of their volition from the United Kingdom to the Gambia, in the Gambia were rendered to the custody of US officials and then from the Gambia were transferred to Bagram airbase and were eventually rendered to Guantanamo Bay. We have asked the United Kingdom to respond to questions that we put to them about the extent of their knowledge, whether effectively MI5 tipped off the Americans about these two individuals' travel plans to travel to the Gambia and to this date we have received no reply. However, I do note the Foreign Office is willing and able to provide replies, for example, with respect to the level of representations that they are prepared to make with respect to these two individuals. They have consistently asserted that they have no duty to make any representations with respect to these individuals. I think that is, perhaps, something that your Committee could ask for.
Q71 Chairman: That is why we are asking the questions now, to find out where the thread starts and basically, from what I understand from Mr Ward, is the onus in relation to this: the aircraft which are known in the past to have been used for extraordinary renditions of people being transferred for torture have called at UK airports but it is not known whether anybody is being illegally transported within those aircraft.
Mr Ward: It is not known when those aircraft landed in the United Kingdom whether there were prisoners on board the aircraft.
Q72 Chairman: The next question is, under the Chicago Convention, and the rules that apply there, what powers do you believe the UK have to make those inquiries of the aircraft concerned or, presumably, the pilot concerned or the person in charge?
Mr Ward: That is a very difficult area. I have to be honest with you and say that we have not yet reached a firm view about the precise legal responsibility of the United Kingdom in relation to those principles.
Q73 Chairman: If you could let us have a note on that, we would be happy to hear from you and we would certainly like to receive that. Can I then go on to the last issue we want to look at which is the alleged ill-treatment by UK troops of suspects abroad and trials in Osnabruek and the courts martial of British troops and obviously they did not go ahead. Do you see that sort of treatment as the product of institutional failure or something else? I think that is a question for Ms Ferstman.
Ms Ferstman: Thank you. One of the difficulties to come to a conclusive answer to your question is the lack of full information that we have with respect to this and some of the other processes. One of the recommendations that we have made in the past, which we do think is still very much appropriate, is for a broader inquiry to be undertaken into the potential role or broader role of a military in respect of these abuse cases. There have been a number of abuse cases that have come to light over the past period, not all of them have been subject to court martial. It would be appropriate to take a broader view with respect to different layers of responsibility. That is one area which we think it would be useful to consider. Furthermore, in respect of the processes themselves, we have not been involved in all of the processes but we have a number of concerns with respect to courts martial in principle. While we do not have a firm position with respect to whether or not court martial is sufficiently independent in these particular cases, we do think that it merits further inquiry to look at the extent to which there is sufficient independence and impartiality to bring the allegations properly to light in these cases.
Q74 Chairman: Even after changes in the court martial system?
Ms Ferstman: We do believe that further questions should be asked to ensure that sufficient independence and impartiality should be there in respect of serious allegations. Some of the allegations, as you know, are deaths in custody where there are serious allegations of torture. In those cases, to have private investigations which are not dealt with through a traditional legal system can be ----
Q75 Chairman: You have mentioned there have been failures to prosecute in your evidence, and also just now, and the collapse of the recent prosecution, but is this due to the inadequacies of the military's ability/desire to investigate properly or is it due to the fact that the evidence simply is not there? Why do you think that is?
Ms Ferstman: I think it is quite hard to disassociate the two possibilities. Part of the reason why investigations often do not result in fruit is because the way in which they are conducted has fundamental flaws. In respect of the Musa case, our understanding of that investigation was that it took, I believe, eight months for that investigation to bear fruit. With respect to these sensitive matters, these types of flaws tend to impact on the overall process. With respect to whether or not that is a policy or whether that is a failing is not clear to us. Certainly some of it can be rectified by further training but one needs to look a little bit further at the broader issues. The only way in which to do that, we would suggest, is through a broader inquiry process.
Q76 Chairman: We are having an inquiry now, how broad it will be remains to be seen in this respect but it is an issue that we are looking at. While we are on the legal aspects, could I raise with you that the International Criminal Court Act 2001 effectively dealt with war crimes and we understand recent prosecutions are being brought on that basis. Obviously we cannot go through the facts of the individual cases because they are sub judice, but do you think that is going to be a more effective way of dealing with some of these matters?
Ms Ferstman: We do not have a firm view on whether it will be more effective. We will be watching the processes closely to see how effective they are in practice. Unfortunately, that is all I can say at this point.
Q77 Chairman: The last question in this context: I mentioned we wanted to come back to the question of training. How do you think training in the treatment of detainees and civilians should be carried out to be really effective in preventing torture or ill-treatment in general?
Ms Ferstman: Certainly it is something which has to take place throughout the institution, not something which happens once. It has to be part of the overall culture of the organisation. One needs to look at the types of materials, the codes of conduct, that exist to see whether or not they comply with the relevant standards and whether or not they are sufficiently up to date to deal with current situations which may not have been conceived of when the manuals were initially thought of. There is a range of training needs and certainly it would be appropriate to have external persons involved in those training processes to ensure that those dealing with these matters have sufficient expertise which goes beyond the typical remit of their superiors.
Lord Lester of Herne Hill: When I, in my glorious military career as a second lieutenant Royal Artillery 1825 ----
Chairman: Was that when you were in the army or was that your number?
Q78 Lord Lester of Herne Hill: We had a manual of military law and the section you are talking about was written by none other than Judge Hersch Lauterpacht and Colonel Draper, and that manual was discontinued for reasons that had nothing to do with this. I have been trying to discover exactly what training materials are now used and have so far failed. Have any of the three organisations ever asked the Government what training materials they use and asked to look at the codes and other stuff and been refused? Is this something that we ought to be asking questions about?
Ms Ferstman: We have not been refused. In fact, our discussions on some issues with the military have been rather productive.
Q79 Lord Lester of Herne Hill: Looking at the actual material that officers and soldiers get in order to train them on humanitarian law, on human rights law and on practice, are there published materials that you have seen?
Ms Ferstman: I do not have the detailed information that you are seeking, unfortunately.
Chairman: Thank you very much. It has been a very interesting and challenging session all round. I think it is a very good start to our inquiry which will continue over the next few weeks into the New Year. Thank you for coming.