On August 5, 2015, the Inter-American Commission on Human Rights (IACHR) published its report “Towards the Closure of Guantanamo,” which examines the human rights situation of detainees at the U.S. Naval Base in Guantanamo Bay, Cuba. See Inter-American Commission on Human Rights, Towards the Closure of Guantanamo (Report), 2015. The report concludes that detainees are subject to indefinite detention; torture and other cruel, inhuman, or degrading treatment; and a discriminatory detention regime that does not provide due process or other judicial protection. Commissioner Felipe González, IACHR Rapporteur for the United States, emphasized that “public security reasons cannot serve as a pretext for the indefinite detention of individuals without charge or trial.” [OAS Press Release] The report concludes with a number of recommendations including improving confinement conditions, ensuring detainees’ access to justice, and closing Guantanamo.
To gather information for the report, the Commission organized an expert meeting in October 2013 focusing on the situation of detainees at Guantanamo Bay, which included the participation of Clifford M. Sloan, who at the time was the Special Envoy for Guantanamo Closure at the U.S. Department of State, officials in the Office of the Chief Prosecutor and the Office of the Chief Defense Counsel for the Military Commissions, habeas counsel representing Guantanamo detainees before federal courts, a psychiatric and medical expert, civil society organizations, scholars, and members of the office of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The Commission also considered information gathered in the course of public hearings and working meetings held before the Commission, materials submitted with respect to precautionary measures and individual petitions, academic research studies, as well as reports issued by UN bodies, NGOs, and the media. See Report at paras. 7-8.
Background on the Commission’s Prior Engagement with Guantanamo
To address the human rights situation in Guantanamo, the Commission had previously requested that the United States adopt precautionary measures to prevent irreparable harm to persons subject to its jurisdiction. The first request, which was made in 2002, concerned all the detainees in Guantanamo (PM 259-02) and asked the U.S. to define the legal status of each detainee, investigate allegations of torture and maltreatment, and close the detention facility. The Commission later extended the scope of these measures. Additionally, the Commission requested that the U.S. adopt precautionary measures for the following detainees: Omar Khadr (PM 8-06), Djamel Ameziane (PM 211-08), and Moath al-Alwi (PM 46-15). These measures included ensuring that they would not be subject to torture or to cruel, inhumane or degrading treatment while in custody and not deporting them to a country where they might be subjected to such treatment. See id. at paras. 24-37.
The Commission has also published two resolutions regarding the situation of the detainees in Guantanamo. On July 28, 2006, the Commission issued Resolution No. 2/06 on the Guantanamo Bay Precautionary Measures, which noted the failure of the United States to adhere to earlier precautionary measures. This resolution urged the U.S. to close the facility and remove detainees in accordance with its obligations under international law.
On July 22, 2011, the Commission issued Resolution No. 2/11 Regarding the Situation of the Detainees at Guantanamo Bay, United States, which stated that while the U.S. has recognized that detainees have the right to judicial review of their deprivation of liberty, this right was not ensured in practice. The Commission also noted that the United States violated the principle of non-refoulement, which prohibits a State from transferring and deporting individuals to countries where their life, personal integrity, or freedom may be in danger, given that mechanisms are not in place to review decisions to transfer detainees, as a result of which they may face a risk of torture or cruel, inhuman and degrading treatment or punishment. See id. at paras. 38-46. The Commission reiterates later in the report that forcibly transferring detainees who claim that they will be persecuted or subjected to torture or other cruel, inhuman or degrading treatment or punishment violates both precautionary measure 259/02 as well as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). See id. at para. 296-300.
To monitor the situation with respect to human rights in Guantanamo, the Commission also conducted 11 public hearings between 2002 and 2015, which allowed for a dialogue between victims, civil society, and States. See id. at paras 47-50.
Individual petition system
In its report, the Commission addresses cases that have been brought to the Commission’s attention through the individual petition system. The Commission held admissible the petition concerning Djamel Ameziane (an Algerian national who was allegedly detained in Guantanamo without charge since 2002, tortured, and faced the risk of being transferred to Algeria where he could be persecuted. Ameziane was later repatriated to Algeria in 2013, an act which the Commission publicly condemned). This was the first time the Commission accepted jurisdiction involving a Guantanamo detainee. See id. at paras. 51-54.
Requests to visit Guantanamo
Additionally, the Commission, through its Rapporteurship on the Rights of Persons Deprived of Liberty, requested to visit Guantanamo in 2007, 2011, and 2013. However, each time this request was made, the U.S. responded that it would grant permission to visit the facility on the condition that the delegation would refrain from freely communicating with detainees. The Commission did not accept this limitation. See id. at paras. 55-59.
Finally, since 2006, the Commission has issued nine press releases, which have addressed the need to immediately close the detention facility, the conditions of detention, and the forced transfer of Guantanamo detainees. One of these press releases was issued as a joint statement in conjunction with four UN mandate holders, and marked the first time that the IACHR had done this. See id. at paras. 60-61.
Human Rights Violations Regarding Conditions of Detention
Right to Personal Liberty
The report explains that the right to personal liberty and security and to be free from arbitrary arrest is enumerated in the American Declaration of the Rights and Duties of Man (American Declaration), and that the U.S.’s post-9/11 policy of detaining prisoners at Guantanamo “without charge or trial” contradicts these principles as well as other international legal protections. See id. at paras. 65, 96.
The Commission notes that although there have been changes in U.S. policy, including the recognition that the laws of war govern detention and treatment and that detainees should not be classified as “enemy combatants,” the National Defense Authorization Act (NDAA) reaffirmed in 2014 that the Authorization for Use of Military Force (AUMF) allows for the detention of persons without trial “until the end of hostilities.” See id. at paras. 78, 82. According to the Commission, while a State might be justified in detaining a person for a longer period than ordinarily permissible, this detention must last “for only that period necessary in light of the situation,” and a detainee must still be afforded rights, including the right to be informed of the reasons for detention, as well as legal, medical, and consular assistance. See id. at para. 92.
Right to Personal Integrity
The report notes that persons deprived of liberty have a right to humane treatment while in a State’s custody. The American Declaration contains several provisions (right to life, liberty, and personal security; right to protection from arbitrary arrest; right to due process of law) concerning humane treatment, that are also reflected in the Third Geneva Convention and the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. The report cites to numerous incidents where detainees at Guantanamo were subjected to torture and other cruel or degrading treatment and concludes that these cases violate the right to personal integrity.
Additionally, the report notes that the U.S. has responded to detainees’ hunger strikes aimed at protesting indefinite detention and confinement conditions by force-feeding them. The report concludes that the State should conduct an individualized assessment to determine whether a detainee possesses the capacity to make a judgment about the physical consequences of refusing food in order to respect the right to personal integrity. This practice which would be more aligned with medical expertise on the topic as well as decisions issued by the European Court of Human Rights. See also ECtHR Factsheet – Hunger Strikes in Detention. See Report at paras. 97-152.
Human Rights Violations Regarding Access to Justice
The Commission highlighted due process concerns at Guantanamo, including the fact that only a specific category of individuals, namely foreign Muslim men, have been detained there. See id. at para. 221.
Right to an Effective Remedy
The report states that the right to judicial protection is enumerated in the American Declaration and that judicial remedies must be available, adequate, and effective in protecting the right to personal liberty. The Commission notes that the landmark U.S. Supreme Court decision in Boumediene v. Bush that Guantanamo detainees had the right to file habeas corpus petitions before federal courts did not address “the content of the law” governing detention, nor did it address other evidentiary and access-to-counsel issues. The report notes that those detained at Guantanamo therefore do not have access to domestic remedies that would allow them to challenge the legality of their detention. See id. at paras. 157-158, 162, 189.
With respect to trials of individuals suspected of terrorism by military commissions, the Commission’s report acknowledges policy changes in the Military Commissions Act of 2009 (MCA), but expresses concern regarding a number of issues, including: the independence and impartiality of the commissions; uncertainty as to whether the U.S. Constitution applies in Guantanamo; defense counsels’ access to evidence and witnesses, as well as the ability to cross-examine witnesses; and defendants’ rights to a speedy trial. See id. at para. 213.
Right to Legal Representation
Right to Legal Representation
The Commission’s report notes that challenges remain regarding detainees’ right to legal representation, including: restrictions on the ability of defense counsel to speak with clients on the phone, thus requiring them to travel to Guantanamo, and the lack of respect for attorney-client privilege, confidentiality, and the denial of access to consular assistance. The Commission notes that these restrictions and limitations violate the right to a defense. See id. at paras. 241-250.
Right to Periodic Review of Detention
The Commission expresses serious concerns about the Periodic Review Board (PRB), which was established in 2011 to determine whether certain detainees in Guantanamo represent a “continuing significant threat to security of the United States.” See id. at para. 254. For example, the report notes that the PRB is not an independent and impartial decision-making body, that it did not start operating until more than two years after it was created, that it had only reviewed 14 cases by March 2015, and that there is continued uncertainty as to whether-attorney client privilege applies to these proceedings. See id. at paras. 254, 260-66.
International Legal Obligations Regarding the Transfer or Release of Detainees
Detainees Cleared for Transfer
Challenges to Detainees’ Transfers
The Commission calls for various provisions of the National Defense Authorization Act related to the prohibition on transferring detainees to the U.S. to be repealed. In particular, the Commission notes that these transfers should be permitted if a detainee needs emergency medical treatment, for trial, or when transferring a detainee to their home country would constitute a risk. See id. at para. 280-289.
The report notes that as of March 2015, Yemeni nationals comprise more than 60% of the total number of detainees at Guantanamo and 85% of the population that is eligible for transfer. While deteriorating security conditions in Yemen pose a significant challenge to the transfer of detainees and the closure of Guantanamo, President Obama lifted the 2010 moratorium on transfers to Yemen in May 2013 and announced that transfers would be authorized on an individual basis subject to the establishment of rehabilitation and monitoring programs. The report notes that the general restriction on transfers that was previously in place was discriminatory because it was based on the detainees’ nationality and the political situation in Yemen. The Commission calls for the situation of Yemeni detainees to be examined with respect to the threat that each individual allegedly poses, rather than as a group and concludes that “accelerating the transfer of Yemeni nationals” should be prioritized. See id. at paras. 290-295.
Executive Prerogative Powers
The Commission notes that while the U.S. argues that Guantanamo remains open because of Congress and the National Defense Authorization Act (NDAA), that the Executive actually does have the authority to finalize the transfer of detainees. While the U.S. transferred 11 detainees in 2013, followed by 23 in 2014, the Commission encourages an acceleration of such transfers. See id. at paras. 302-305.
Detainees Not Cleared for Transfer
Detainees Facing Criminal Charges
The report states that as of December 2014, 32 detainees at Guantanamo were designated for prosecution by the Guantanamo Review Task Force, and that the U.S. had brought war crimes charges against 19 of them. According to the report, trials by the military commission system have been slow and inefficient, with only eight detainees (1% of all prisoners held at Guantanamo) being convicted thirteen years after Guantanamo opened. Additionally, the few active cases that are pending before military commissions are only at the pre-trial stage. The Commission notes that lengthy proceedings violate defendants’ right to a speedy trial guaranteed by the American Declaration and recommends that some detainees be transferred to the U.S. for prosecution, with the ability to serve sentences in their home or third countries, so that they are ensured U.S. constitutional guarantees and because this would also be a step towards the closure of Guantanamo. See id. at paras. 307-17.
Detainees in Continuing Detention
According to the report, as of March 2015, there were 56 detainees at Guantanamo who had not been designated for transfer or were not serving sentences or being tried. These detainees will be evaluated by the Periodic Review Board (PRB) to determine whether they “represent(s) a continuing significant threat to the security of the United States.”
The Commission expressed concern about the following: that at the end of 2014, 30 detainees still remained in continuing detention, that in the case of the four detainees for whom the PRB decided that continued detention was necessary, a three year waiting period exists before a new review can be conducted. See id. at paras. 318-324.
The report concludes by noting again that the continuing and indefinite detention, in the absence of due process guarantees, of individuals in Guantanamo violates their rights under international law. The report also notes that while President Barack Obama ordered the closure of Guantanamo on January 22, 2009, doing so is a complex matter, partly because, among other things, any transfers must be done in accordance with the principle of non-refoulement, and trials must ensure the right to due process.
Finally, the Commission concludes by issuing a number of recommendations to the U.S. concerning conditions of detention, access to justice, and the closure of Guantanamo.
- Conditions of Detention
- Hold detainees in accordance with international human rights standards.
- Ensure that judicial review is available, adequate, and effective.
- Provide detainees with adequate medical, psychiatric, and psychological care in accordance with the principles of confidentiality, informed consent, and patient autonomy.
- Respect detainees’ right to freedom of conscience and religion.
- Declassify all evidence of torture and publicize information about confinement conditions at Camp 7.
- Establish an independent monitoring body, with the participation of civil society, to investigate confinement conditions.
- Comply with recommendations issued by the Committee Against Torture (CAT), including investigating allegations of detainee abuse, prosecuting offenders, and providing redress to victims; improving detention conditions to end hunger strikes; and prohibiting the force-feeding of detainees who are capable of making informed decisions.
- Authorize a visit by the Commission to Guantanamo, including private interviews with detainees.
- Access to Justice
- Try detainees in federal courts rather than before military commissions and respect defendants’ rights to due process.
- Guarantee that judicial review is available, adequate, effective, and allows the possibility of release.
- Ensure that courts thoroughly examine the government’s evidence to ensure that detention is based on clear and convincing evidence.
- Respect attorney-client privilege and provide detainees and their counsel with all of the evidence used to justify their detention.
- Closure of Guantanamo
- Repeal the National Defense Authorization Act (NDAA) provisions which prohibit the transfer of detainees to the U.S. for prosecution, incarceration, and medical treatment.
- Ease restrictions on transfers to third countries and accelerate transfers in accordance with the principle of non-refoulement.
- Expedite the Periodic Review Board (PRB) process and immediately release detainees who will not be charged or tried.
- Transfer detainees to the U.S. to be tried in federal court and transfer convicted detainees to federal prisons to serve their sentences.
See id. at paras. 326-330.
The Commission also urges OAS Member States to consider the possibility of receiving Guantanamo detainees.
The Inter-American Commission on Human Rights is responsible for monitoring, promoting, and protecting human rights in the 35 Member States of the Organization of the Americas (OAS). To learn more about the IACHR, the Inter-American Court of Human Rights (IACtHR), and the Inter-American System, visit IJRC’s Online Resource Hub.
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