Vol. 548 No. 1
1 Mr. J. O'Keeffe asked the Minister for Foreign Affairs if he has indicated a view to the United States authorities that prisoners held arising from the war in Afghanistan should be treated with full respect for their human rights in accordance with the principles of international law; and the nature of his approach to the American authorities and their response thereto. [3977/02]
2 Mr. M. Higgins asked the Minister for Foreign Affairs if he or his officials have sought and received assurances that prisoners taken in Afghanistan will be treated in accordance with the Geneva Convention adoption and protocols; if he has satisfied himself that international law is being fully respected in the case of prisoners being held in Afghanistan and elsewhere; and if he will make a statement on the matter. [3976/02]
I propose to take Questions Nos. 1 and 2 together.
The Government's view on the condition and status of al-Qaeda prisoners being held by the US is clear. All detained persons are entitled to the protection of international human rights instruments and international humanitarian law. This must be the case irrespective of the prisoners' exact status. Where doubts have been raised regarding the status of prisoners, such as those held in Guantanamo Bay, the Third Geneva Convention provides for their status to be determined by a tribunal.
The Taoiseach and I have emphasised this view in both public and private discussions. I have privately discussed the matter in Tokyo with UN Secretary General, Kofi Annan, who has conveyed the same message to the US authorities. I also met the chairman of the Afghan interim authority, Hamid Karzai, and conveyed my concerns. I further discussed the issue with my European Union counterparts, most recently at the General Affairs Council on 28 January.
The US authorities are well aware of the Government's position which was conveyed to US ambassador, Richard Haass, during his visit to Dublin on 15 January. There is no doubt that the United States is very conscious of the level and nature of international concern about the treatment and status of al-Qaeda prisoners. Deputies will be aware of statements by senior US administration representatives which make clear the US commitment that the prisoners will be treated humanely, but which have fallen short of accepting their status in relation to the Third Geneva Convention.
I welcome the fact that the International Committee of the Red Cross has been given access to the prisoners, and that it will have a permanent presence in Guantanamo, as long as there are detainees to be registered on arrival and subsequently visited. I again call on the US authorities to implement quickly and fully the ICRC's recommendations in regard to the conditions in which the prisoners are being held.
In all contacts with the US authorities on the issue we have been assured that they are keenly aware of their obligations under international humanitarian law, and that they will live up to these obligations. In expressing these views I do so as a friend of the United States. The Government recognises the danger posed by terrorist networks such as al-Qaeda. However, in confronting those who abuse and violate all forms of human rights it is essential that we maintain the highest standards at all times, including through scrupulous respect for international law.
I fully support the war on terrorism led by the United States, but I am concerned that the zeal to tackle terrorism cannot and must not be extended to deny human rights to prisoners. In fact, I would see this as being counterproductive. Now that the Red Cross is represented at Guantanamo Bay, is the Minister satisfied that there is full observance of human rights as far as the prisoners are concerned?
I would like to raise two points in relation to the prisoners' status. First, the Minister said there is a procedure for a tribunal to examine that status, but who will establish that tribunal and what happens if it is not established? Second, does the Minister see any distinction between those who were foreign members of the al-Qaeda network in Afghanistan, as opposed to Afghanis who are Taliban prisoners? Does he consider that there is a clear distinction between those two categories, in that it is hard to suggest that an Afghani person who was in the Taliban was not entitled to engage in support for what he or she considered to be the then lawful government of the country?
The Government is aware of widespread concern about the conditions under which al-Qaeda and Taliban prisoners were being transported to and detained in the US naval facility in Guantanamo Bay in Cuba. As I have already outlined, the Government has raised these concerns with the US authorities and we have been assured that the United States is aware of and will live up to its obligations, meeting the highest standards of justice and humane treatment for the prisoners. As to whether they are entitled to prisoner of war status, as the Deputy knows, the United States has clearly set out the reason it has termed the prisoners unlawful combatants. Many legal experts have expressed doubts about this classification. The Government hopes the US authorities are giving careful consideration to the possibility of having their status determined by a competent tribunal as provided for under international law in Article 5 of the Third Geneva Convention. We must remember that for the prisoners the need to be treated humanely is their most immediate concern. The Government considers that the presence of the ICRC will help to ensure their treatment meets international standards.
One of the conditions under which the International Committee of the Red Cross functions is that it can only report confidentially to those who are detaining prisoners or to the representatives of the prisoners. It is a condition of its access that it issues no public statement. Given this, how can the Minister possibly stand over the reply given by the Spanish EU Presidency to a question concerning the reason it is not seeking access to establish the conditions under which European Union citizens are being held? What efforts has the Minister made to secure access so as to establish the conditions?
The Minister quoted certain international legal opinion suggesting that the conditions of Article 5 of the Third Geneva Convention are being met. A great body of published opinion has suggested that the prisoners being held at Guantanamo Bay should be accorded prisoner of war status. On what basis are they being disqualified from having such status?
Whether we are to believe it, everybody prefaces their remarks on this issue by saying they are making these demands in the spirit of friendship and friendly relations between nations. Is it not an outrage that one permanent member of the UN Security Council can seek to interpret in its own way the terms of the Third Geneva Convention? Yet, it is assumed that the other 189 signatories to the convention, who are not on the Security Council, must accept it as writ. Either it is law or it is not. Is the Minister concerned that there has been no public statement on his behalf, or on behalf of the Government and the European Union, that these prisoners are not being accorded the terms of Article 5 of the Third Geneva Convention? Deputy Jim O'Keeffe correctly pointed out that if there is doubt, the convention explicitly states a competent tribunal must decide the matter. What assurance does the Minister have that this will be done? What form will the tribunal take and will it be within the terms of international law?
It is not true for the Deputy to say that I am not on the public record as to stating what the precise position of the Government is, even with regard to the question of Article 5, because I am. I have been explicit concerning that matter. Where there is doubt – such doubt is being raised – in relation to the status of the prisoners concerned, under Article 5, it is a matter for a competent tribunal to make that decision.
Yes, but when is this to happen?
We have made the point to the detaining country that this is something we believe should happen. We still await the outcome of the point of view we have expressed, which is not unique to us, but also comes from many other members of the international community. Therefore, it is not correct to say we have not stated clearly the Government's position on the matter; we have been explicit.
I would like to point out the advice available to me on the question of legal status, which is important. Both the United States of America and Afghanistan are parties to the Third Geneva Convention of 1949 which relates to the treatment of prisoners of war – the United States having become a party in 1955 and Afghanistan in 1956. While the Taliban had not been recognised as a legitimate government of Afghanistan by the international community, the rights and obligations imposed by the Third Genera Convention still apply to Afghanistan. This is because the convention operates between states, not governments. The Geneva Conventions apply in "all cases of war or any other armed conflict which may arise between two or more of the high contracting parties" and in "all cases of partial or total occupation of the territory of a high contracting party." That relates to Article 2.
In Article 4 of the convention a prisoner of war is defined as a person who has fallen into the power of the enemy, including "members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces." On this basis, members of the Taliban forces, as the armed forces of Afghanistan when captured, would qualify for prisoner of war status.
The status of al-Qaeda forces under the above mentioned paragraph would depend on whether they could be seen to be a "militia or volunteer corps" forming part of the forces of Afghanistan. The precise relationship between the Taliban and al-Qaeda forces is not precisely known and contended. However, paragraph 2 of Article 4 of the convention provides that captured members of other militias and other volunteer corps linked to the armed forces of a state may qualify for prisoner of war status providing they fulfil certain conditions, including having "a distinctive sign recognisable at a distance" and "carrying their arms openly." It could be argued that the al-Qaeda forces fulfilled neither of these conditions.
However, when there is a doubt as to the status of prisoners Article 5 of the convention requires that those prisoners enjoy the protection of the convention until their status has been determined by a "competent tribunal". While a competent tribunal is not defined in the convention, a tribunal should possess judicial features and operate in a judicial way, that is, it should be impartial and willing to consider a prisoner's claim to be a prisoner of war. Should a prisoner be found by a competent tribunal not to qualify as a prisoner of war, it should be pointed out that such a person is still entitled to the protection accorded by international standards of human rights, including those contained in the International Covenant of Civil and Political Rights to which the United States is a party, which guarantee that no one be subject to torture or to cruel, inhuman or degrading treatment or punishment. It is also a principle of international humanitarian law that where no provision exists which regulates a particular case, the principles of international law as they result from the practice of civilised nations shall prevail. It should be pointed out that the granting of prisoner of war status to a person does not prevent that person from being tried for war crimes or other crimes by the detaining power. That is the outline detailed legal position with which all of our public pronouncements are consistent with.
The Minister has proved the point I raised, that there is a distinction between the Taliban prisoners and the al-Qaeda prisoners. Whatever question there might be about the status of foreign al-Qaeda fighters who were captured in Afghanistan, there can be no question whatsoever about the status of an Afghan Taliban fighting in his own country. That point should be made to the Americans. As believers in the rule of law we must be insistent on its being observed.
Is the Minister fully satisfied that the interrogation procedures are in accordance with the rule of law? The photographs taken of the prisoners in Guantanamo Bay have been quite disturbing to the general public. These photographs seem to have emanated from official sources which appear to take pleasure in producing them.
Deputy Higgins may ask a supplementary question.
I am waiting for the Minister's explicit reply as to why the Presidency of the European Union is not seeking access to assure compliance with the Geneva Convention. I know the Minister has as much respect as I have for the Geneva Convention. He referred to chapters four and five of the Third Geneva Convention. I remind him that irrespective of this, under international customary and humanitarian law, all prisoners are entitled, as he rightly points out in his reply, to be treated in a civilised manner. My question is a simple one: why did the Spanish Presidency of the European Union issue a statement saying that it was not in a position to form an opinion as to whether there was compliance with the convention? It also stated that it does not dispose of the information necessary to determine whether the detainees at Guantanamo Bay should be regarded as prisoners of war. This is a weak statement on the Presidency's behalf, a presidency which has said it is going full steam ahead for the co-ordination of foreign and security policy. Has the Minister pressed the Spanish Presidency to seek access?
Deputy O'Keeffe raised the question about information gathering. There seems to be an acceptance in certain areas that one need not adhere to certain standards for the purpose of gathering information to be used in an anti-terrorist effort. I remind the Minister that this is perilously close to the case of Castlereagh stated by Ireland against the United Kingdom in the 1970s. Some of the pictures showing the hooding of prisoners and their removal for questioning are much worse than in the case of Castlereagh. As a member of the General Affairs Council, why is the Minister happy with the European Union's gutless approach of not seeking access in order to establish the facts? What efforts does the Minister propose to assure himself that it is within the principles of international law?
The point I would make about the statements made by the Spanish Presidency is that I am making the same point here as I did at the General Affairs Council. Concern about EU citizens is a matter which is being taken up bilaterally by the governments of the states whose citizens are held. They have informed me that they have been able to obtain de facto consular status in respect of investigating the position of their citizens. The United Kingdom is a case in point. It dealt directly with the US in order to satisfy itself as to the position of its own citizens. Access was obtained on a bilateral basis.
It is a matter that concerns all of us in the EU.
The Deputy asked why the EU was not pressing for access in respect of those citizens. The answer to the question is that the countries concerned satisfied themselves.
They have not satisfied themselves that the Geneva Convention principles are being applied. The formulation was that it was within the general atmosphere—
We must deal now with Question No. 3.
