Human Rights Watch appreciates the opportunity to comment on the FCO Human Rights Annual Report 2003, for the Foreign Affairs Committee, in advance of the committee's session with human rights minister Bill Rammell MP.

  There are a number of areas where HRW's concerns overlap with those of the British government. It is not the aim of these notes merely to repeat and reinforce those points. Rather, we seek to identify potential problem areas. We will address these in the same order as the report itself, with page references as appropriate. This commentary is not a line-by-line or a page-by-page analysis of the report, but highlights some of the most important issues or contradictions that arise.

  Areas of concern can broadly be divided into two categories. On the one hand, we identify areas where HRW believes that the British government's analysis, as presented in this report, seriously understates the extent of the problem in a given country, or fails to mention areas of concern. On the other hand, we identify areas where the human rights report states the problem clearly, but where other aspects of government policy seems to be at odds with this analysis.

  We believe that such "mismatches" are in some respects as worrisome as wrong characterisations or understatements of the problem in a given region. Highlighting the problems in the human rights report may give the impression of British concern—a minister can always refer to a page-reference in this report—while failing to address the problems in practice. If the human rights concerns expressed in the FCO report are not reflected in broader government policy, then well-meaning statements of concern may seem little more than polite window-dressing—thus potentially downgrading the significance of the entire human rights report. This therefore has much broader implications for the consistency of the UK's foreign policy.

  We sometimes hear complaints from officials that human rights organisations like HRW focus too much on criticism of the UK and US government record. The implication is that the horrific events elsewhere in the world are thus being underplayed, at the expense of these "lesser" offences. Lest there be any misunderstanding: HRW regards both the United Kingdom and the United States as functioning democracies. Many of the governments which HRW reports on in detail, including some of those listed below, are not. It is, however, difficult to overstate the importance of how damaging a message is sent out if powerful democracies such as the US or the UK feel able to ignore international laws or due process. This behaviour has implications for repressive governments elsewhere in the world, who frequently quote such behaviour in order to justify their own abuses, carried out in the name of "the war on terror".

UK AND TERRORISM (PP17-18)

Counter-Terrorism

  The report says that the UK recognises the need for the United Nations Counter Terrorism Committee to "respect both the rule of law and human rights obligations". We hope this is the case. We would wish to hear strong ministerial commitments, for example with reference to the unacceptability of using evidence received under torture—not just in court, but also for the government's own decision-making process. Britain has in past years played a strong role in advocating an end to torture worldwide. If a government knowingly uses evidence gained under torture, then it is party to such torture at only one remove. There can be no ifs and buts about the acceptability of torture. We hope that ministers will confirm that this is the British government's view. The existence of dangerous terrorists must be an argument in favour of upholding international obligations, not an excuse to flout them.

  HRW urges that the Counter Terrorism Committee should establish a special mechanism to monitor the effect of counter-terrorism measures on human rights in countries worldwide. It is also important to reaffirm the absolute obligation not to refouler (return) a person to a country where he or she is at risk of being subjected to torture.

UK Derogation from the European Convention on Human Rights (pp18-19):

  The report argues that the derogation was lawful, and emphasises that the Anti Terrorism, Crime and Security Act is subject "to a high degree of scrutiny". HRW has repeatedly expressed its considerable concerns about the message that the UK is sending with such a derogation. This has been dealt with in greater detail in the HRW document "Commentary on the Anti-Terrorism, Crime and Security Bill 2001".

  http://www.hrw.org/backgrounder/eca/UKleg1106.htm

  More recently, comments in January 2004 by the Home Secretary, David Blunkett, about the possibility of lowering the bar for the prosecution of terrorist suspects suggests a worrying failure to understand the importance of due process, especially when such serious crimes are at stake.

GUANTANAMO (P19)

  The report quotes the Prime Minister as describing the legal conditions under which detainees are held at Guantanamo as "an irregular situation". HRW believes that this severely understates the degree of the problem. Lord Steyn rightly noted that the detentions represented a "monstrous failure of justice" and the detainees were "beyond the rule of law, beyond the protection of any courts and at the mercy of victors". Despite some tinkering at the edges, the detentions at Guantanamo, and the preparations for the military commissions, have trampled the most basic principles of international law. A US federal appeal court has also been highly critical of the administration's attempt to create a legal black hole. A recent HRW analysis of the problems, "United States: Guantanamo Two Years On: U.S Detentions Undermine the Rule of Law", is at http://hrw.org/english/docs/2004/01/09/usdom6917.htm. The Prime Minister's repeated refusal to publicly condemn this situation is deeply regrettable. For a close ally to remain silent is highly damaging, in these circumstances. Both President Bush and Defense Secretary Donald Rumsfeld have publicly prejudged the guilt of the men held at Guantanamo; the Prime Minister sometimes seems in danger of doing the same, as noted in an article in The Times by the executive director of Human Rights Watch, Kenneth Roth, http://hrw.org/editorials/2003/us112103.htm. The neglect of basic legal rights is regrettable on its own terms: due process is indispensable for justice and stability. In addition, it sends an extremely damaging message worldwide, giving the impression that powerful governments feel able to ignore the law—and thus setting dangerous precedents which may and will be imitated.

IRAQ (PP19-25)

  Human Rights Watch, which has repeatedly documented the horrific abuses of the Saddam Hussein regime—including the analysis of 18 tonnes of documents airlifted out of Iraq in 1992—took no stance on the legality or illegality of the war. It avoids doing so in order not to detract from the impact and potential breaches of international humanitarian law (also known as "the laws of war") in any given conflict.

  The horror of the regime was not in question. Though it is not directly relevant to the terms of the FCO report, it is worth noting that HRW's analysis, contained in the HRW 2004 World Report, is that the Iraq war cannot be described as a humanitarian intervention, and that any attempt to make such an argument for the Iraq war after the event is damaging to the case of those who in other circumstances—for example, during an ongoing genocide, as in Iraq in 1988 or Rwanda in 1994—believe that armed humanitarian intervention can be justified.

http://www.hrw.org/wr2k4/3.htm

  We note the report's emphasis that "We attach great importance to placing human rights and the rule of law at the forefront of efforts to encourage the building of representative, democratic institutions in Iraq." HRW naturally shares that view—but is concerned that this has not always been the case in practice.

  (1) Mass graves: The British group Inforce (International Forensic Centre of Excellence for the Investigation of Genocide) has played an important role in documenting the mass graves, and helping to provide evidence of a high enough standard to be used in court. We note, however, that—despite repeated warnings from HRW—there was little attempt at an early stage to do anything to secure these mass graves, in a way that would provide the best opportunities for long-term justice. Heavy media coverage of the problems, especially after the discovery of the mass graves at Hilla, led to a change in tactics. This "media blitz" should not have been needed, however, in order for the importance of securing mass grave sites to be fully understood. Too often, it seems that there is a reluctance to concentrate on issues beyond the immediate moment. This was an example of such a failure.

  (2) The killing of civilians by coalition forces, and lack of investigation: HRW's Hearts and Minds report, http://hrw.org/reports/2003/iraq1003/, clearly documented a pattern of failure to investigate civilian killings, including in circumstances where HRW's own investigations suggested that there was, at the very least, a case to answer. As in so many circumstances, this apparent impunity is not merely regrettable on its own terms; in addition, it sends an obviously destabilising message, by increasing mistrust of the coalition forces.

  (3) Justice, and war crimes trials: This is an enormously important issue. The arrest of Saddam Hussein, and the announcement of the terms of the proposed Iraqi war crimes tribunal, came after the publication of the report. We would note the importance of the British government pressing for international involvement in the tribunal (perhaps along the lines of the Special Court for Sierra Leone), and the importance that the death penalty should not be imposed. The British government is officially opposed to the death penalty, but we note with dismay that a Downing Street spokesman said "obviously the death penalty might have to be accepted". This statement from the Prime Minister's office apparently contradicted the position that had earlier been expressed by the senior envoy to Iraq, Sir Jeremy Greenstock, who said that the UK would "have no part of a tribunal or a process that has the death penalty as one of its penalties". HRW proposals for the statute of the war crimes tribunal are at http://hrw.org/backgrounder/mena/iraq121703.htm. It is HRW's view that a weak tribunal, or one which lacks due process or sufficient expertise, will have enormously damaging effects for the future.

AFGHANISTAN (PP25-28)

  HRW documented the repression of the Taliban regime in considerable detail. After the fall of the Taliban in 2001, HRW repeatedly highlighted the importance of not allowing the warlords to strengthen their grip throughout the country. Much too little was done to counter this tendency. There was a reluctance to confront the scale of the problem at that time, though this year's report notes, "Security remains poor in the regions." Reports issued by HRW from different parts of Afghanistan highlighted these problems throughout 2002 and 2003, including "Killing You Is A Very Easy Thing For Us: Human Rights Abuses in Southeast Afghanistan" in July 2003, http://www.hrw.org/reports/2003/afghanistan0703/. HRW would argue that much more still needs to be done. The loya jirga in December 2003 made a number of significant achievements, including a substantial numbers of seats for women. But domination of the approval process by warlords and factional leaders raises serious concerns about whether the country can hold free and fair elections this year.

UZBEKISTAN (PP29-30)

  HRW strongly welcomed the powerful speech made by HM Ambassador to Uzbekistan in 2002, including the emphasis that the war on terror should not be "an excuse for the persecution for those... who pursue their views by peaceful means". HRW also welcomes the fact that the inclusion of the text of the ambassador's speech in the FCO report can be seen as an endorsement of this message. The appalling human rights record of Uzbekistan cannot be in question—including the systemic use of torture—and has been documented by HRW in detail.

  We note with regret that the European Bank for Reconstruction and Development failed to introduce benchmarks ahead of the EBRD summit in Tashkent in May 2003, when they could have been most effective—the threat of the "withdrawal of the carrot". The potential cancellation of the prestigious summit could have been a powerful incentive for reform. Partly perhaps as a result of the urging of HRW and other NGOs, benchmarks for democracy were established at that meeting last year. It is regrettable that those benchmarks do not appear to have been followed up to the extent that we would have hoped. An analysis of this issue, "Human Rights Developments in Uzbekistan from July to October 2003: Monitoring of the EBRD Human Rights Benchmarks", is at http://hrw.org/campaigns/uzbekistan/uzbek-factsheet-1103.htm.

CHINA (PP33-40)

  We appreciate the space given to human rights concerns in China. We agree with much of the UK analysis, and share many of the concerns on a wide range of issues, including freedom of assembly, expression and religion, repatriation of North Korean refugees, and others. We are concerned by the downplaying of grave rights abuses in Xinjiang, in western China. The report mentions Xinjiang only briefly, and does not raise concerns about China's use of the "war on terror" to leverage international support for its crackdown on ethnic Uighurs or its ongoing failure to distinguish between peaceful advocates of separatism, those who use violence, and international terrorists.

  Surprisingly, the report has only praise for China's handling of the AIDS epidemic, and does not raise the problem of serious human rights abuses against people living with HIV/AIDS and persons at high risk of HIV/AIDS, such as injection drug users. It does not raise the issue of lack of official accountability for the blood scandal in Henan and other provinces. Health officials there profited from unsafe blood collection centres that spread HIV to hundreds of thousands, perhaps millions of farmers. Human Rights Watch's report, "Locked Doors: The Human Rights of People Living with HIV/AIDS in China" documents these abuses in detail http://www.hrw.org/reports/2003/china0803/. If not addressed, these problems will create obstacles for the implementation of China's recent promises of HIV/AIDS treatment.

  Hailing "positive signs of further compliance...with UN human rights mechanisms" is overstating the case. Although China issued invitations to the UN Special Rapporteur on Torture and a member of the Working Group on Arbitrary Detention, there are serious concerns that the invitations cannot be accepted without compromising the mandates of both.

  Two pages of the report are devoted to the China-UK human rights dialogue. Human Rights Watch believes in the importance of dialogue, but is concerned that the UK-China dialogue has become little more than a formality. As a member of the European Union, the UK should abide by EU guidelines on human rights dialogues, which require the establishment of benchmarks, criteria for monitoring progress, a timetable for achieving progress, and a clear exit strategy. We urge the UK to move the level of dialogue to the vice-ministerial level, in keeping with the recommendations of the European Commission on human rights dialogues.

INDONESIA (PP41-43)

  This section is seriously flawed. The report begins by noting that Indonesia has made "some real strides in human rights" since the 1998 downfall of President Soeharto. This is true, as far as it goes. But phrases like "the road to democracy has not been straightforward" are a severe understatement. It also does not highlight that many post-Soeharto reforms have been pushed back under the Presidency of Megawati Sukarnoputri. In 2003, there have been signs that Indonesia's armed forces are re-emerging as a strong political force again.

  In a joint release, HRW and Amnesty International noted that 39 new prisoners of conscience have been imprisoned in Indonesia since Megawati Sukarnoputri became president in July 2001. More information on this can be found in the Human Rights Watch report "A Return to the New Order? Political Prisoners in Megawati's Indonesia," http://hrw.org/reports/2003/indon0703/.

  Human Rights Watch believes that its well-documented report, "Aceh Under Martial Law: Inside The Secret War" http://hrw.org/reports/2003/indonesia/1203 contains more than mere "allegations" of extrajudicial killings, referred to in the FCO report. In particular, the claim that "the military are taking human rights more seriously" is questionable, at best. Trials of low-level soldiers for minor offences in Aceh, while welcome, fall far short of accountability for the severity of the abuses currently being committed by members of Indonesia's security forces.

  We would suggest that the British government should focus its attention much more clearly on the documented abuses, and the apparent insouciance with which senior Indonesian officials treat such abuses. Failure to do so sends a damaging message. With particular reference to General Adam Damiri, who is mentioned in the report, it is unacceptable that a general who has been convicted and sentenced for crimes against humanity should remain on active military service and involved in the war in Aceh. Such impunity is endemic in Indonesia's armed forces and runs counter to the FCO report's claim that "the reputation and professionalism of the Indonesian security forces has improved." HRW has raised the impunity issue with a paper highlighting known military human rights offenders who are involved in the current military operation in Aceh (please refer to HRW publication "Aceh Under Martial Law: Can These Men Be Trusted to Prosecute This War?" http://hrw.org/backgrounder/asia/indonesia1003.htm).

IRAN (PP43-45)

  The report states that the human rights situation "continues to be a cause for concern". HRW London director Steve Crawshaw and Iran researcher Elahe Sharifpour-Hicks had the honour to present written and then oral evidence to the Foreign Affairs Committee in February 2003, when some of the problems were already identifiable. Since then, the problems have significantly worsened. Scores of students, writers and journalists have been detained in 2003. The first two dialogues with the European Union have notably failed to produce results. Iran should release political prisoners, and should authorise an independent investigation into judicial abuses by the Office of the Chief Prosecutor.

SAUDI ARABIA (PP45-47)

  We are pleased to note that, following the concerns expressed by HRW and Amnesty International about last year's entry on Saudi Arabia, and following the FAC's own criticisms, this year's entry is stronger, and thus more accurate. HRW shares the government's "deep concerns about Saudi Arabia's failure to implement basic human rights norms". The report accurately records the fact that HRW, after many years of applying for permission to visit Saudi, visited the country in January 2003, and held a number of high-level ministerial meetings. In this context, however, it is also worth noting our regret that HRW has not been allowed back into the country for any research missions, although our Saudi interlocutors explicitly acknowledged that the HRW ministerial talks could only ever be seen as an introduction, paving the way for the carefully researched reports which are a hallmark of HRW's work. We believe that much greater openness is still needed, and that the verbal commitments of reform need to be matched by changes in practice. The UK government should not pull its punches on this issue.

DEMOCRATIC REPUBLIC OF CONGO (PP52-53)

  The conflict in this mineral-rich country is one of the bloodiest in the world. More than 3 million have died since 1998. Much too little attention has been paid to the conflict here. Human Rights Watch's report Ituri: Covered in Blood http://hrw.org/reports/2003/ituri0703/ is the latest in a long series documenting the bloodshed, and the political links. A Channel Four Dispatches programme, Congo's Killing Fields, made in collaboration with HRW, also highlighted these links.

  The FCO report rightly notes that the violence in the east of the country has been backed by Rwanda and Uganda. It is HRW's view that much too little pressure has been put on those two countries, which receive large amounts of UK government aid, to stop supporting and supplying weapons to armed groups in the region. It sometimes seems as though there is a desire not to confront the extent of the Rwandan and Ugandan involvement. The UK government could play a key role in this respect. Given the importance of valuable mineral resources in stoking this war, it is also essential that British and international companies should obey internationally agreed norms. As documented by a United Nations panel of experts, there have been notable failures on this score. A number of multinationals have been named by the UN panel as having breached OECD guidelines. To date there has been no investigation into UK-based companies which have breached those guidelines.

  Public statements by the chief prosecutor of the International Criminal Court indicate the possibility that some of the earliest cases brought before the new court will concern the DRC. It will be essential for the UK to give full backing to such moves, especially if they are resisted by the United States, which has made plain its opposition to the court. United Nations peacekeepers in the DRC must be allowed full arresting rights of indicted war criminals, if and when appropriate.

COLOMBIA (PP57-60)

  The UK can play a leadership role in defending the London Declaration of 2003. In it, Colombia committed to implementing the recommendations of the UN High Commissioner for Human Rights. Beyond expressions of good faith, there need to be consequences should Colombia continue to fail to live up to this commitment. Already, Colombia's leaders have backtracked significantly, including by proposing and, eventually successfully, passing legislation that authorises warrantless arrests and searches, directly contradicting the UN recommendations. It is regrettable that the UK has so far failed to take clear and swift actions that respond to these developments by condemning the decisions of the administration of President Uribe and withholding military aid.

CHECHNYA (PP134-135)

  On p112, the FCO report talks in regretful tones of the failure of the Commission on Human Rights to pass a resolution on Chechnya. HRW also regrets this failure. But, regarding British government attitudes, it should also be seen in a broader context.

  In the section devoted to Chechnya, the findings of Human Rights Watch—including the increase in the number of forced disappearances of civilians by Russian forces—are referred to. At the same time, the constitutional referendum in March 2003, widely regarded by most serious observers as a mere political figleaf, is here treated as though it were a serious step forward, and President Putin's commitments have been taken at face value; there is even an indirect comparison with the historic Good Friday peace agreement in Northern Ireland. It is HRW's view that much more scepticism is needed—and that a promise which is not matched by reality is entirely worthless and should be treated as such.

  The critical comments contained in the FCO report, and the fact that the UK pressed for a resolution at the CHR in Geneva—an important forum, but with a relatively low political and media profile—must be set against the very high-profile visit by Tony Blair to St Petersburg in May and the state visit by President Putin to London the following month. Neither in London nor in St Petersburg did the Prime Minister see fit to make a public reference to Chechnya, even in passing. This is an appalling and quite inexplicable failure. The growth of Chechen-led terrorism in recent years should be seen as an additional important reason for the Prime Minister and the UK government to speak out loudly on this issue, not a reason for criticism to be muffled. For criticisms to be heard in Geneva and in the human rights report but not in St Petersburg makes a mockery of both the commission and of this report, suggesting that Chechnya is somehow a "subsidiary" issue. It is not. If basic rights are not addressed in Chechnya, then both Chechnya and, crucially, the rest of the Russian Federation will be poisoned for years to come.

  Moscow's support in the "war on terror" must never be a reason to allow Moscow itself to trample basic rights elsewhere. Failure to make that point clearly is a political and moral failure in equal measure.

  The Moscow office director of Human Rights Watch, Anna Neistat, in an article in The Independent at the time of President Putin's visit headlined "What Mr Blair should say to the Russian president today", http://www.hrw.org/editorials/2003/russia062603.htm, quoted the poet Alexander Pushkin: "How easy it is to deceive me, when I am glad to be deceived." The same quotation is used as the title quotation for an essay on Chechnya in the Human Rights Watch World Report 2004, http://hrw.org/wr2k4/. The international community—and the British government in particular—must be much more alive to the dangers of what is happening in Chechnya. The UK government should make a commitment not just to support a resolution on Chechnya at Geneva, but also to highlight the issues in the most high-profile contexts, where such statements cannot be ignored. In historical terms, HRW believes that the Prime Minister's softly-softly approach with regard to the routine abuses and killing of civilians in Chechnya will seem shortsighted and ill-judged.

INTERNATIONAL CRIMINAL COURT (PP164-166)

  The ICC is the most important judicial instrument that the world has ever seen, allowing major war crimes and crimes against humanity to be prosecuted in countries around the world. Its first indictments look set to be announced during the coming year. It is a matter of enormous regret that the US administration mistrusts international justice so deeply that it has not only "unsigned" from the Rome Treaty of 1998, but has also manoeuvred strongly in order to weaken or sabotage the court's operations from the start, seeking special dispensations from an internationally agreed treaty.

  In order to further this aim, the United States has indulged in political armtwisting (the word "political blackmail" has frequently been used) by threatening countries that all US aid will be cut off if they do not give the US the assurances that it requires. The FCO report expresses "regret" for these tactics, but says that this is "essentially a bilateral matter".

  HRW argues that this severely misstates the scope of the problem. Nobody questions the fact that Britain played an important role in helping the court to be established, nor that—at least in theory—the UK remains a strong supporter of the court. In present circumstances, however, the British failure to confront the armtwisting of smaller and vulnerable countries is itself a betrayal of the principles of the court. To talk about Britain's positive role in setting up the court can be seen as a mere red herring, in this context. A number of smaller countries urgently need the outspoken support of the UK on this issue. A more robust stance would also make it possible to have a stronger stance at EU level, rather than the "dilution principle" which has currently been applied. The UK sometimes seems eager to see itself in the role of honest broker between its EU partners, on the one hand, and Washington, on the other. In reality, London, as a trusted US ally, could play a more useful role by confronting the US tactics directly. In future, it should take every opportunity to do so.

NIGERIA (PP213-215)

  The report's brief comment on the Nigerian elections gives a misleading picture. The FCO report notes that "the elections were not perfect"; that is the strongest word of criticism. This, despite the fact that Human Rights Watch and several Nigerian NGOs documented many incidents of political violence and intimidation in the months leading up to the elections (see HRW report "Testing democracy: political violence in Nigeria", April 2003, http://www.hrw.org/reports/2003/nigeria0403/) as well as during the actual election period. At least 100 people were killed during the election days alone, and scores more in the preceding months. The elections were also marred by widespread fraud and rigging. Most of the violence was carried out by supporters of the ruling party, the People's Democratic Party (PDP); some of the larger opposition parties were also responsible for killings and other acts of violence against their opponents. The worst violence took place in the south and the southeast, but incidents also occurred in several other areas. In a number of places, elections simply did not take place because of violence and intimidation; yet results were announced from these same locations.

IN CONCLUSION

  HRW finds much to commend in the human rights report. But it is crucially important for the UK government to emphasise—not just in words but also in practice—that human rights standards and the due process of law must be upheld in all circumstances. Insecurity is not reduced but worsened by the failure to adhere to internationally agreed standards. If democratic governments fail to defend such standards, that sends a doubly dangerous message—a message of permissiveness—to repressive governments around the world.

  There is greater detail on a number of these issues in the Human Rights Watch 2004 World Report, published in January 2004, of which we hope that the members of the committee have copies. It is available on the web at http://www.hrw.org/wr2k4/. We thank the Committee for the opportunity to make this contribution to the debate. Additionally, all HRW documents mentioned in this memorandum are attached for your information.

Steve Crawshaw

London Director, Human Rights Watch

February 2004