Examination of Witnesses (Questions 1
WEDNESDAY 30 JANUARY 2002
MP, DR CAROLYN
1. Order, order. Minister, may I welcome you
again to the Committee, this time flanked by Dr Carolyn Brown,
who is Head of the Human Rights Policy Department and Dr Nicola
Brewer, Director of Global Issues in the Foreign Office. I welcome
you all. We note that on this the fourth annual report on human
rights the Foreign Office have chosen very well indeed a photograph
of Milosevic being taken into custody, which is one very positive
development since the last report. There is also good news of
course on Sierra Leone. I am pleased that in the inside cover
of the report, the objectives element states that you have been
able to incorporate into the format of the report many of the
suggestions which have been made by this Committee and indeed
by non-governmental organisations and we are certainly grateful
for that. You say that the report provides an overview of the
main challenges to human rights around the world and the period
covered is from June of the year 2000 to July of last year. Obviously
though ending in July of last year everybody thinks of this absolutely
decisive occurrence, atrocity, on 11 September on the World Trade
Centre. So perhaps we might begin in relation to the effects of
that atrocity on human rights. Can you speculate, Minister, as
to the way you think the emphasis of the report might have been
altered had this report been taken to the end of last year, in
the light of the World Trade Centre?
(Mr Hain) Speculation is a dangerous
thing for any Minister but obviously we shall have wanted to take
account of developments there in respect of the action, detainees
and other issues which concern everybody associated with it. We
would also have wanted to recognise that the terrorist attack
on New York and Washington created entirely new circumstances
for the world upon which we have had to act.
2. Chapter 4.2 of the report deals with developments
in international humanitarian law. Obviously the prison conditions
in Guantanamo Bay have figured very largely in recent discussion
on that. What concerns, if any, have we expressed to the US, obviously
in particular about our own citizens?
(Mr Hain) We have been in the process of constant
dialogue with the authorities in the US and a delegation of British
officials did visit the Guantanamo base and were able to talk
to the detainees who are British. Whether it is at that level
or at the level of the Foreign Secretary talking pretty well every
other day to Secretary of State Colin Powell in Washington about
a whole range of international issues, this included, we have
been in constant contact.
3. There have been very strong leaks that Colin
Powell has pressed the President to have the detainees classified
as prisoners of war. Is that a view we share?
(Mr Hain) First of all, I have read those reports
just as members of the Committee could have and I cannot shed
any further light on them. What is important here is that we distinguish
basic principles rather than get into the intricacies of international
law applied in the context of a battlefield situation and subsequent
apprehension. The principles are clear: the individuals apprehended
are alleged to be and assumed to be guilty of very serious crimes,
either in Afghanistan or by association with others, members of
al-Qaeda, in an international conspiracy, the most dramatic form
of which we saw in the USA on 11 September. They therefore have
to be treated very, very carefully and circumspectly and with
exceptional security measures, especially as there is a tendency
for suicide action. That is the first reality that we simply need
to be constantly aware of. The second is that everybody, whatever
crime they are alleged to have committed, should be treated humanely.
That is a principle we strongly adhere to; we believe that the
American authorities, even in the difficult circumstances in Guantanamo
Bay, where there was no prior planning for such an eventuality,
have also sought to adopt the same principles of humanitarian
4. Do you accept that the letter of the Geneva
Conventions of 1949 are not relevant here? (Mr Hain) No,
the US authorities have said that the detainees are being treated
humanely consistently with the principles of the Geneva Conventions
in mind and that certainly is an attitude which we would wish
5. Are you concerned that this classification
of unlawful combatants is unknown to international law?
(Mr Hain) The exact circumstances in which the individuals
were apprehended and exactly what they were doing and how they
might be categorised or classified or designated is highly complex
because we are not dealing here with the traditional conflict
between nations. In respect of al-Qaeda detainees at least, perhaps
in respect of Taliban armed forces with which admittedly they
were linked in some fashion, and it varied, then one could have
applied traditional categories but this is a very complex matter
and rather than trying to get me to define, though I am happy
to answer any questions from the Committee, and to be pressed
on it, exactly how I would as a non-lawyer, not as a domestic
lawyer or an international lawyer, define the exact circumstances
or the classification of an individual detainee is not very fruitful
6. Are we drawing the attention of our US allies
to the fact that it is not for them unilaterally under the conventions
to classify these detainees as prisoners of war or not?
(Mr Hain) Statements which have been made by the Defense
Secretary Donald Rumsfeld and indeed by President Bush himself
indicate quite clearly, and I am happy to report them to you,
that they do want to act in a way which is consistent with the
Geneva Conventions. Donald Rumsfeld said on 11 January that they
have indicated that they do plan to treat the detainees in a manner
which is reasonably consistent with the Geneva Conventions, to
the extent that this is appropriate, and that is exactly what
they have been doing. It is not for me to defend every statement
which has come from Washington or anywhere else in the world uttered
by a Foreign Minister, whether an American or anyone else.
7. I hope you will not.
(Mr Hain) I think I should defend our own Government's
position and that I am very happy to do so.
8. But you also surely have a duty to defend
(Mr Hain) Of course and that we have done.
9. You also have a duty to ensure that our allies
as part of a coalition act in ways which do not prejudice the
representations we make in other fora. For example the Executive
Order the President issued in November does avoid the normal legal
procedures. Do you think that Executive Order with its procedures
and lacking legal safeguards will prejudice representations we
make to other countries in terms of the conditions available to
(Mr Hain) What is important is what is happening on
the ground. We sent a delegation of British officials who talked
to all three of the British detainees in Guantanamo Bay. I do
not say they are ecstatic about their treatment, who would be
in those circumstances, but they made no complaints about inhumane
treatment and the Red Cross, in line with normal accepted practice
in these circumstances, is present, is able to monitor the situation,
is able to make representations.
10. So you are content with the situation so
(Mr Hain) I do not think anybody is content with the
situation, let alone the Americans in the sense that they would
not have chosen to have to deal with these circumstances. Let
us remember that we are dealing with a situation which was not
planned for, where there are, according to the New York Times,
currently 158 detainees held in Guantanamo Bay as of a week ago
and the planned capacity, according to the Baltimore Sun of 25
January, is 2,000. The detainees in Afghanistan held by the US
currently number 270at least that is my latest information.
The BBC reported a spokesman for the US authorities, a former
US Ambassador to Qatar, Kenton Keith, saying that he believed
the number of prisoners to be around 7,000 in total. These are
exceptional totals in circumstances which were not planned for.
I think it is quite proper that everybody cast a beady eye on
the treatment of prisoners to ensure that they are treated in
a humanitarian fashion and we are doing that along with the Americans
11. They are not exceptional totals in terms
of other wars.
(Mr Hain) They are exceptional detainees in the sense
that they have been apprehended in circumstances where al-Qaeda
have been fighting the international coalition. They are assumed
to be members of al-Qaeda, it is alleged some of them very senior
ones. Al-Qaeda are known to be ruthless terrorists, to be prepared
to commit suicide and take anybody else with them, as we saw so
dramatically on 11 September, therefore they are exceptional circumstances
which were not planned for and if some things have gone wrong
along the way, that is perfectly natural. The Americans have insisted
that they are treating all detainees in a humanitarian fashion,
broadly according to the principles of the Geneva Convention.
This is something we want to see and we will certainly be monitoring
12. You have talked about exceptional circumstances
and al-Qaeda. The Geneva Conventions devised in 1949 were principally
for wars of one state against another, enforcing obligations on
states. Where one has non-state actors, as in this case, is it
your view that the Geneva Conventions should be revisited to look
at these new circumstances?
(Mr Hain) I am quite low down the Ministerial food
chain to begin to make pronouncements of that kind. We need constantly
to update all our international procedures and treaties. We are
now in an era of an entirely new threat from an international
terrorist force which struck so unexpectedly and horrifically
on 11 September. I guess we need to review all our security procedures
and legal procedures to take account of these developments.
13. For the moment let us look in particular
at the prisoners in the Guantanamo base as you very kindly brought
along your Director of Human Rights Policy Department. It would
help me to understand slightly better the workings of the Foreign
Office if you could give me some indication what reports were
shown to the Human Rights Department and to what extent they were
involved in the policy decision making which then led to the Government's
position on the prisoners. What is the interaction between that
department and the decision-making process?
(Mr Hain) It is fairly central. Under this Government,
from 1997 on, initially under Robin Cook, now under Jack Straw
as Foreign Secretary, and myself having been involved over a number
of years, we put human rights at the centre of our foreign policy.
I think we have a very good record on that and I am happy to explore
it. We always want to do better and your advice helps us to do
that. The policies of the Human Rights Policy Department, which
Carolyn Browne heads have been mainstream. It is not an any other
business item which you get round to if you are in the South Asian
department or the Africa department or the Middle East department.
Human rights are constantly on your agenda. Our ambassadors and
high commissioners make it a mainstream matter for them. We have
had considerable interest in the allocation of human rights advisers
to our posts.
Initially we have two human rights advisers already in place in
Kiev and Katmandu out of eight and we already have a full list
in Kuala Lumpur where we are recruiting and Caracas where we are
recruiting and three in Africa. This is an indication of both
the success of human rights advice and in addition here in London
we had diplomats on secondment to Article 19, to the Minority
Rights Group and to Inter-Rights and we have human rights advisers
working inside the Foreign Office from non-governmental organisations.
Having worked for example with one of our officials who was recruited
from Amnesty International, she brings considerable added-value
to the work of the department. It is very much appreciated.
14. May I just press you a little bit further
on the very precise instance of the Guantanamo base? Which reports
would have been seen by the department and to what extent would
that have affected the policy making?
(Mr Hain) All the reports.
15. You would have seen all of them.
(Mr Hain) All the reports from Guantanamo base would
have been seen by the department and it would have been second
nature, because that is the way the Foreign Office works today,
to make sure that human rights is at the top of our agenda. It
was not always like that in the past, but it certainly is the
case now and for the future. I do not say we always get it right.
We try to and your observations on Guantanamo Bay or any other
instances of foreign policy would be very much welcomed.
16. You said something interesting there which
was that human rights are at the top of the Foreign Office agenda,
which certainly was not the case with previous governments. We
have constructed this coalition against terrorism. The coalition
is fragile and some of the countries in the coalition, to be frank,
have pretty poor human rights records. I just wonder how difficult
it now is for the Foreign Office to press countries who have poor
human rights records which are in the coalition. There are countries
with whom we have probably been pretty robust prior to 11 September
and now the priority is to keep them on board in the coalition.
Frankly a number of countries surrounding Afghanistan do not have
a great human rights record. I just wonder what the priority is.
Is the priority since 11 September to continue to press those
countries to improve their human rights record or are we comparatively
soft peddling because it is more important to keep them on board
(Mr Hain) It is a key question and I shall answer
it directly. It is something we constantly try to keep a balance
on. If you look at the international situation, it has changed
quite dramatically. Who would have suspected, for example, that
Pakistan would have come out of its self-imposed categorisation
as a state of concern into one which is part of the international
coalition, its own human rights record not being a pretty one,
being now addressed in dialogue with us and with others. We can
have members of an international coalition to fight a common threat
of this awful kind whilst at the same time having a full and frank
dialogue including, where appropriate, pressure with individual
countries, it might be Iran, it might be Pakistan, it might be
others involved. That continues and it has not stood in the way.
May I make one additional point? I do not see a conflict between
security and individual liberty, indeed the right to life is the
most basic human right and our security is enhanced by projecting
concern for human rights and making sure that concern is implemented.
17. I just want to come back about Pakistan.
Human Rights Watch say, "The US and British embrace of Musharraf
in their anti-terrorism coalition effectively ended any international
pressure for the restoration of democracy in Pakistan". Do
you agree with that?
(Mr Hain) I do not agree with that; on the contrary,
whether it was the Prime Minister's meeting with President Musharraf
on the 8 January or whether it was the constant contact that the
Foreign Secretary has had with Pakistan and his opposite number
and our own dialogue with Pakistanis in post, we have constantly
been in dialogue about human rights and we shall continue to be
18. May I ask about the effect in the UK and
how that affects things internationally? As part of our own response
to 11 September we put through Parliament the Anti-Terrorism,
Crime and Security Act. That entailed us having to get a derogation
from Article 5 of the European Convention on Human Rights. Have
any of our European Union partner countries derogated from the
(Mr Hain) I am not aware, to be perfectly frank.
(Dr Browne) I am not aware either.
(Mr Hain) Perhaps we could come back to you on that
19. When you come back, if they have not derogated,
why did we need to? Does the fact that we have this derogation
not impair our ability to go to countries which have very poor
human rights records and raise it with them? They may just throw
it back in our face, "You have derogated from the Convention
on Human Rights, how dare you come to us".
(Mr Hain) I do not think so. We fully consulted our
European colleagues on this matter. It was a matter on which we
have acted in concert. None has yet derogated but that is not
to say they will not. No, I do not think so, because we were dealing
with exceptional circumstances here, we have acted in accord with
that and that does not mean that we have somehow thrown human
rights out of the window: on the contrary, our commitment to human
rights, both in Britain, throughout Europe and internationally
remains as steadfast as it has always been.
1 Note by witness: Initially we have three human
rights advisers already in place in Manila, Kiev and Katmandu. Back
See evidence, p Ev 14. Back