Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

Question 58: To ask the Minister for Foreign Affairs his views on the findings of a draft report complied by five independent experts further to an 18-month investigation by the UN Commission on Human Rights into detention conditions at Guantanamo Bay, in particular the finding that aspects of the treatment of prisoners there, including violent force feeding, must be assessed as amounting to torture; his further views on the finding that serious questions exist regarding the legal basis upon which persons there are being held; and if he will make a statement on the matter. [7223/06]

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

The recent joint report by the four UN special rapporteurs and the Chair of the working group on arbitrary detention is a significant development in the debate regarding the situation of the detainees in Guantanamo Bay.

The finding of the report, which states the view of the authors that aspects of the treatment of prisoners there must be assessed as amounting to torture, should be taken very seriously, given the expertise and international reputation of the special rapporteurs and the chair of the working group. This finding will clearly be subject to further consideration and debate.

As I stated in the Dáil on previous occasions, Ireland regards torture as unacceptable and unjustifiable under any circumstances.

With regard to the legal basis on which the persons in Guantanamo Bay are being detained, the Government's position on the condition and status of detainees in Guantanamo is clear and has been consistently conveyed to the US authorities. All detained persons are entitled to the protection of international human rights instruments and, where applicable, international humanitarian law.

I have carefully noted the initial response of the Secretary General of the United Nations, Mr. Kofi Annan, to the joint report. I endorse the Secretary General's view that those held in Guantanamo Bay should either be charged or released, and that the United States should close the facility. This would be highly desirable on human rights grounds. Closure of Guantanamo Bay would, in addition, serve to reassure all of America's friends, including Ireland, who recognise the importance of the role of the United States as a global leader in combating terrorism and promoting democracy.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

I welcome the Minister's unequivocal condemnation of torture, his opposition to Guantanamo Bay and his support for the UN Secretary General's comments on the report. Does the Minister agree, however, that there is no legal basis for the Guantanamo facility, no legal protection for the detainees there and that a massive abuse of human rights is involved?

As regards the suggested war against terrorism, does the Minister agree that the redefinition of torture is a mitigation of the relevant international protections? In the press release accompanying the extensive questionnaire which the Minister sent to the Council of Europe following the article 52 request as to what was taking place in Shannon, he stated that the Garda Síochána has the right to inspect such planes at Shannon. However, senior gardaí have informed me and Senator Norris that under the Criminal Justice (United Nations Convention Against Torture) Act 2000 they do not have the right to enter and inspect aircraft or to arrest anybody in connection with the issue of torture. They suggest that they have no such powers under the aforementioned Act. The reply to the questionnaire stated that three cases have been investigated but they were investigated second-hand by talking to cleaners and others who serviced the aircraft. Gardaí are under the impression and the Office of the Director of Public Prosecutions is ruling that under the 2000 Act they do not have the right to enter such aircraft.

The press release affirms that the Garda Síochána can inspect such planes. The Minister for Justice, Equality and Law Reform has said that he is against the use of torture and I accept that he is. However, the attitude of the Garda Síochána and, as I understand it, the DPP's office, is that the 2000 Act, which inserted the United Nations Convention Against Torture into Irish law, does not allow gardaí to enter any civil aircraft in Shannon or elsewhere.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

Further to what the Deputy said was taking place in Shannon, the report clearly states and shows that nothing was taking place there. Ireland was one of only three countries that received categorical and unqualified assurances on the non-use of their territory for what is called extraordinary rendition.

As to whether members of the Garda Síochána have a legal basis to board planes, it is the strong advice of the Attorney General to the Government that they do. Some time ago, the Minister for Justice, Equality and Law Reform assured Deputies and the wider public that gardaí had full power to board civilian chartered aircraft such as those about which many of these allegations have been made.

As for the three cases referred to in the report, I have some information on the type of complaints made. Ultimately, however, it is a matter for the Garda Síochána and the Director of Public Prosecutions to make an independent determination as to whether there is enough evidence in that respect. As regards the two cases that were referred to the DPP, it is quite clear that he said there was insufficient evidence. The complaints related to a regurgitation of media reports of allegations that Shannon was being used.

Of 41 reports that have already been sent to the Council of Europe as of midnight on Monday, Ireland's is one of the most comprehensive. It clearly states and shows that as far as the Government and its agencies are concerned, Shannon was not used in any way for extraordinary rendition. It also shows that the constant assurances given by the Americans, from Condoleezza Rice down, are verified.

As for the legal basis for Guantanamo, it is a fact that the US administration has already disputed the report from the special rapporteurs. The US administration also states that it has the legal basis for the presence of the Guantanamo facility. In our view, however, allegations of torture there must be investigated. As far as we are concerned, we fully endorse the views of Kofi Annan on the necessity either to charge or release those detained in Guantanamo Bay and that, ultimately, the facility should be closed.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

The adequacy of such assurances must be assessed in the context of the observation of international law by the sovereign state involved. It is the common view of those interested in international law that assurances of the type the Minister has received and accepts are not sufficient as positive compliance with the UN Convention Against Torture.

We now have two positions. When the Minister for Justice, Equality and Law Reform answered questions in this Chamber, he said he was against torture. I accept that the Government would be against the commission of torture. However, the Criminal Justice (United Nations Convention Against Torture) Act 2000 was invoked by two Garda superintendents to me and another Member of the Oireachtas. They said that they had no powers under that Act to enter or search the aircraft in question or to arrest anyone.

The third paragraph on page one of the questionnaire, which was sent back to the Council of Europe, states that the Garda Síochána's powers of search and inspection extend to civil aircraft of the type cited in allegations about extraordinary rendition. Which version is correct? How can the Garda Síochána and the DPP be wrong?

I would welcome the Government's position if it were factual but gardaí have not boarded planes or sought to obtain evidence. In response to our questions, we are always told that if we have evidence, we should give it to the Garda Síochána. The extensive questionnaire that has been sent back to the Council of Europe says that under Article 40 of the Constitution concerning the deprivation of liberty, the Garda Síochána has common powers under the 1998 civil aviation legislation.

If one wants to be fully compliant and positive in implementing the UN Convention Against Torture, it is not sufficient to accept assurances. It is also insufficient not to have investigations, be they sporadic or regular.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

The Deputy is wrong in that respect. The European Court of Human Rights has set the bar for the acceptance of diplomatic assurances.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

Yes.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

It has referred to "a substantial proof of a real risk of a breach of a right being created".

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

But what is happening in Guantanamo?

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

I did not interrupt the Deputy. A number of academics would normally be critical of the US stance on this but New York University carried out a study for the House of Commons. It stated that actual knowledge of any breaches would have to be required before intervention could take place.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

That is why the five people were not allowed in to see the detainees.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

Time is limited so the Deputy should allow me to answer the question whether the Garda Síochána has powers to board aircraft. It has been verified by the Attorney General that the Garda Síochána has such powers. I would hazard a guess that the Attorney General is correct and that the information the Deputy received is not correct. However, that is a matter for the Minister for Justice, Equality and Law Reform to answer in the House.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

Why could he not accept it then?

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

The issue of these so-called extraordinary renditions on chartered civilian flights is exactly the same as members of the Garda Síochána going into the Deputy's house. They can only do so on foot of a search warrant——

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

Yes.

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

——or on suspicion of a crime being committed. It is exactly the same at Shannon or anywhere else in Ireland for a civilian plane on which extraordinary rendition is supposedly taking place. It is a matter for members of the Garda Síochána to intervene if they have a suspicion that there is a substantial risk of a breach of rights taking place. To date, members of the Garda Síochána have not done so.

Michael D Higgins (Galway West, Labour)
Link to this: Individually | In context

No. They have never entered a plane.