In its first decision concerning the “war on terror,” the Inter-American Commission on Human Rights (IACHR) has found the United States responsible for violating the human rights of Djamel Ameziane, a former detainee at the Guantánamo Bay detention facility. See IACHR, Merits Report No. 29/20, Case 12.865, Djamel Ameziane (United States), 22 April 2020. Ameziane is an Algerian national who was detained in Guantánamo without charge beginning in 2002, tortured, and later repatriated to Algeria in 2013. The IACHR’s decision on his 2008 complaint is its first published merits report of 2020. [CCR; CEJIL] The IACHR concluded that the U.S violated the American Declaration on the Rights and Duties of Man (American Declaration) provisions on torture and inhumane treatment, religious freedom, due process and effective remedy. See Djamel Ameziane (United States), 22 April 2020, para. 5. In contravention of IACHR precautionary measures and despite its repeated calls for the U.S. to transfer the remaining detainees from the detention facility, Guantánamo Bay is still operating and the U.S. continues to prosecute detainees before military commissions (hybrid military and civilian courts) rather than in federal courts. See id. at para. 110.
Facts & Procedural History
Ameziane, a practicing Muslim, fled Algeria in 1992 to escape religious discrimination and harassment. See id. at para. 26. He lived in Austria until 1995, then fled to Canada where his petition for asylum was ultimately denied in 2000. See id. He then went to Afghanistan where he believed he could practice his religion without the risk of being deported to Algeria, but left to Pakistan when the U.S. invaded Afghanistan following the September 11, 2001 attacks. See id. at para. 27. Pakistani authorities detained him and allegedly sold him to the U.S. for a $5,000 bounty. See id. at paras. 27-32. The U.S. transferred Ameziane to Guantánamo Bay in 2002, where he remained until 2013 when he was forcibly repatriated to Algeria, despite his fears of persecution. [IACHR Press Release] Later, U.S. domestic courts dismissed Ameziane’s habeas petition as moot in 2014. See id. at paras. 80-87.
While Ameziane was still in Guantánamo, the petitioners – the Center for Constitutional Rights (CCR) and the Center for Justice and International Law (CEJIL) – requested that the IACHR issue precautionary measures for Ameziane and submitted an individual petition in 2008. See Djamel Ameziane (United States), 22 April 2020, para. 1. The IACHR granted the precautionary measures and requested that the U.S. ensure that Ameziane not be subjected to torture or cruel, inhumane and degrading treatment while in detention, and that he not be deported to a country where he could be persecuted. See id. Following a hearing in 2010, the IACHR decided his petition was admissible in 2012, for the first time accepting jurisdiction over a case involving a Guantánamo detainee. See id. at paras. 2, 16. The IACHR held a subsequent hearing in 2017 on the merits of the case. See id. at para. 2.
Based on the hearings and parties’ submissions, the IACHR concluded that Ameziane was held in detention from January 2002 to December 2013 without ever being charged, and even after the U.S. conceded during domestic proceedings that “it had no cause to continue to detain him.” See id. at para. 43. Ameziane alleged that while in detention he was held in conditions that did not meet international human rights standards, subjected to torture, physical and psychological abuse, placed in solitary confinement, not provided with adequate medical care, and subjected to discrimination and abuse due to his religious beliefs and practices. See id. at paras. 29, 32, 43, 51 54, 58-59. The petitioners also alleged that his detention had an impact on his family life, as a result of being “denied meaningful contact with his family.” See id. at para. 65. Moreover, Ameziane alleged that he did not have access to judicial or legal remedies to challenge the “conditions of confinement” or to obtain civil reparations for the harms suffered while in detention, to get his confiscated property back, or to secure a criminal investigation into his treatment. See id. at paras. 102-09.
As an Organization of American States (OAS) Member State, the U.S. has international human rights obligations under the American Declaration. The IACHR, applying the American Declaration, held the U.S. responsible for violating Ameziane’s rights to protection from arbitrary detention (articles I, XXV); humane treatment, in connection with the rights to religious freedom, health and well-being, and protection of private and family life (articles III, XI, V, VI); freedom of assembly, expression, and petition (articles IV, XXI, XXIV); due process and access to effective legal remedies (articles XXVI, XVIII); equality under the law (Article II); prohibition of refoulement, in connection with the rights to due process and effective remedy; right to protection of honor and personal reputation, in connection with the rights to equality, due process and effective remedy (Article V); and, right to property, in connection with the rights to equality, due process, and effective remedy (Article XXIII). See id. at para. 285.
In interpreting the American Declaration, the IACHR also referred to other sources of law, including international humanitarian law (IHL), which applies during armed conflicts. See id. at paras. 114-16. The IACHR rejected the U.S. government’s argument that only IHL applied to Guantánamo and that, therefore, the IACHR had no jurisdiction over the claims; the Commission reiterated its understanding that human rights and IHL treaties “create an interconnected and mutually-reinforcing regime of human rights protections” and that there may be an overlap between both bodies of law, particularly with respect to the prohibition of torture. See id.
The IACHR first analyzed the right to protection from arbitrary detention, holding that Ameziane’s 12-year detention (without charge and without access to an effective judicial remedy) constituted arbitrary detention under Article XXV of the American Declaration and under IHL. See id. at paras. 125-29, 131. The IACHR focused on the fact that the U.S. failed to determine his detainee status under international law, classifying him as an “enemy combatant” and thus preventing him from knowing his rights and accessing remedies under international human rights law or IHL. See id. at paras 127-28. Moreover, the IACHR considered that the U.S. failed to show valid “security reasons” to detain Ameziane, in violation of both human rights law and IHL. See id. at paras. 132-34. The Commission concluded that he was never found to have participated in hostilities or acts of terrorism, or even to be a member of an alleged terrorist organization, and should have thus been afforded the greater protections of a “civilian detained in the context of armed conflict.” See id.
Drawing on its jurisprudence on the subject as well as the definition of torture in the United Nations Convention against Torture, the IACHR also found several violations of the right to humane treatment and prohibition against torture (protections afforded under both IHL and human rights law). See id. at paras. 138-40, 144. In particular, the IACHR focused on the standards relevant to Ameziane’s conditions of detention, solitary confinement and extended period of detention, lack of access to adequate medical care, inability to participate in or practice his religion, and lack of contact with his family while in detention. See id. at paras. 144, 163, 168, 171-77, 182, 187, 191-95, 200-04.
The Commission found that during his 12-year detention without charge, Ameziane was subjected to practices (e.g., waterboarding, beatings, sleep deprivation, chemical exposure, persistent eating and prayer disruptions, other forms of religious abuse, extended interrogations, among others) that constitute torture and inhumane treatment. See id. at paras. 168-70. Moreover, the Commission concluded that the prolonged solitary confinement, incommunicado detention from 2002 to 2004, and the failure to transfer Ameziane for five years after the U.S. admitted that he was not being legally detained rose to the level of cruel and inhumane treatment. See id. at paras. 171-77, 181. With respect to Ameziane’s prolonged solitary confinement, which was in retaliation for his participation in a hunger strike, the IACHR held that it also constituted torture given its severity and the fact that it was inflicted with a punitive purpose. See id. at paras. 177-81. In general, the IACHR determined that the conduct and conditions of detention during the 12-year period, in their totality, qualified as torture. See id. at para. 205.
In addition to finding the U.S. responsible for violating Ameziane’s rights to due process and effective remedy given its failure to investigate, prosecute, and punish those responsible for the torture he endured while in U.S. custody at Guantánamo, the IACHR held that the U.S. had an “aggravated international responsibility” to protect Ameziane from torture and inhumane treatment that it failed to meet. See id. at para. 248, 275-78. In this case, the IACHR considered two factors that aggravated the State’s responsibility: 1) the U.S. government’s systemic practices and policies that permitted acts of torture to occur in Guantánamo; and, 2) the failure of the U.S. to comply with the precautionary measures that the IACHR had granted in favor of Ameziane. See id. at paras. 275-78. The IACHR concluded that the U.S. has a legal framework in place, characterized by amnesty laws and lack of effective access to courts, that allows for acts of torture to be committed and prevents their “effective investigation and punishment.” See id.
Additionally, it reiterated that an OAS Member State’s failure to comply with precautionary measures is inconsistent with the State’s international human rights obligations and results in irreparable harm to the individuals who requested the measures. See id. at 277. In this case, the IACHR concluded that Ameziane continued to be subjected to torture and was returned to Algeria in violation of the principle of non-refoulement as a result of the U.S.’s failure to comply with the IACHR precautionary measures. See id.
The IACHR has issued a number of recommendations to the U.S. that include providing “material and moral reparation” to Ameziane and complying with the recommendations set forth in its 2015 report Toward the Closure of Guantánamo, which go beyond the specific circumstances of Ameziane’s detention and more broadly address the situation at Guantánamo Bay. See id. at para. 285.
The IACHR recommended that the U.S. provide economic compensation to Ameziane for the 12 years of arbitrary detention, and for the physical and emotional harm that resulted from the conditions of detention and torture. In addition to providing medical and psychological care, the Commission recommended that the U.S. issue a public statement indicating that Ameziane “is not and never has been a terrorist;” return the property that was confiscated when he was captured; investigate the acts of torture Ameziane was subjected to and punish those responsible, without regard to amnesty laws or statutes of limitation; and, comply with the recommendations in the IACHR’s Toward the Closure of Guantanamo report, which include repealing the Military Commissions Act, establishing a truth commission to investigate all human rights violations committed in Guantanamo, and various other policies to ensure non-repetition of the Ameziane case. See id. at para. 285.
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