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Human Rights Council discusses joint report on detainees in Guantanamo Bay

September 2006

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This article is an extract of a United Nation press release for the use of the information media ; it is not an official record.

Human Rights Council discusses joint report on detainees in Guantanamo Bay

21 September 2006

The Human Rights Council this afternoon discussed a joint report on the situation of detainees in Guantanamo Bay prepared by the Chairperson-Rapporteur of the Working Group on arbitrary detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health..

Leila Zerrougui, Chairperson-Rapporteur of the Working Group on arbitrary detention, said the joint report concluded that the so-called "war on terror" was not an armed conflict justifying indefinite detention under international humanitarian law.

Moreover, continued interrogation of the detainees was incompatible with the justifications given by the Government of the United States.

The detainees were entitled to challenge the legality of their detention before a legal body, and to obtain release, and this right was currently being violated and the continuing detention of all persons held amounted to arbitrary detention.

Ms. Zerrougui said the report recommended that the United States Government should either expeditiously bring the detainees to trial before a competent and independent tribunal, or release them without delay. It should close down the detention centre, and, until that time, refrain from any practice amounting to torture or cruel, inhuman, and degrading treatment, discrimination on the basis of religion, and violations of the right to health.

(...)

- Joint Report on Situation of Detainees at Guantanamo Bay

The Council has before it a joint report (E/CN.4/2006/120) entitled situation of detainees at Guantanamo Bay, submitted by five holders of mandates of special procedures of the Commission on Human Rights who have been jointly following the situation of detainees held at the United States of America Naval Base at Guantanamo Bay since June 2004, namely, the Chairperson-Rapporteur of the Working Group on arbitrary detention; the Special Rapporteur on the independence of judges and lawyers; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

As the United States Government did not accede to the request for private interviews with detainees by the special mandates, the mandate holders decided on 18 November 2005 to cancel the planned visit.

The present report is therefore based on the replies of the Government to a questionnaire concerning detention at Guantanamo Bay, interviews conducted by the mandate holders with former detainees currently residing or detained in France, Spain and the United Kingdom, and responses from lawyers acting on behalf of some Guantanamo Bay detainees to questionnaires submitted by the mandate holders.

It is also based on information available in the public domain, including reports prepared by non-governmental organizations (NGOs), information contained in declassified official United States documents and media reports.

The report raises a number of important and complex international human rights issues. In view of the fact that an on-site visit was not conducted and owing to page limitations, the report should be seen as a preliminary survey of international human rights law relating to the detainees in Guantanamo Bay.

Section I of the report provides a legal analysis common to all five mandates. Sections II to V outline the legal framework specific to each mandate, as well as the particular allegations of human rights violations which concern them.

The final section contains conclusions and recommendations. Among other things, it recommends that the Government of the United of States of America should either expeditiously bring all Guantanamo Bay detainees to trial, in compliance with articles 9, paragraph 3, and 14 of ICCPR, or release them without further delay; it should close the Guantanamo Bay detention facilities without further delay; and it should refrain from expelling, returning, extraditing or rendering Guantanamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured.

- Presentation of Joint Report on Situation of Detainees at Guantanamo Bay

LEILA ZERROUGUI, Chairperson-Rapporteur of the Working Group on arbitrary detention, presented the joint report on the situation of detainees at Guantanamo Bay, prepared jointly by the Working Group, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman, and degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Since January 2002, the five mandate holders had been following the situation of detainees held at the United States Naval Base, and in June 2004, the United States Government had been asked to allow the group to visit the detention centre jointly.

The purpose of the visit was to undertake an objective and impartial assessment of the serious allegations of torture, cruel, inhuman, and degrading treatment of detainees, arbitrary detention, violations of the detainees right to health and freedom of religion, as well as of their due process rights.

Regrettably, after prolonged negotiations, the United States Government extended an invitation for a one-day visit to only three of the mandate-holders, and stipulated that the visit would not include private interviews or visits with detainees. The mandate holders deeply regretted that the United States Government did not accept the standard terms of reference accepted by all countries.

In the report, the Rapporteurs concluded that the so-called "war on terror" was not an armed conflict justifying indefinite detention under international humanitarian law. Moreover, continued interrogation of the detainees was incompatible with the justifications given by the Government of the United States.

The detainees were entitled to challenge the legality of their detention before a legal body, and to obtain release, and this right was currently being violated and the continuing detention of all persons held amounted to arbitrary detention. Other guarantees of the right to a fair trial, particularly concerning the access of the accused to the evidence used against him, were also violated.

The interrogation techniques authorised by the Department of Defence amounted to degrading treatment.

The general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement amounted to inhuman and degrading treatment and to a violation of the right to health. There were reliable indications that, in different circumstances, detainees had been victims of violations of the right to freedom of religion or belief, and that some interrogation techniques were based on religious discrimination.

Based on these findings, the report included a number of recommendations. In particular the United States Government should either expeditiously bring the detainees to trial before a competent and independent tribunal, or release them without delay. It should close down the detention centre, and, until that time, refrain from any practice amounting to torture or cruel, inhuman, and degrading treatment, discrimination on the basis of religion, and violations of the right to health.

The Human Rights Council’s attention was drawn to the serious human rights violations taking place in Guantanamo that were identified in the report, and it was underlined that since the report had been issued, no substantial progress had been made to prevent such serious violations.

On the contrary, the admission of the existence of secret places of detention pointed to very serious human rights violations in relation to the hunt for alleged terrorists, and required the urgent attention of the Human Rights Council.

The Council should urge the Government of the United States to implement the recommendations set out in the report, and put an end to the violations described therein, allow the mandate holders to urgently visit the Guantanamo detention centre, urgently abolish the program of secret detention, and abide by its human rights obligations in the fight against terrorism.

- Statements by Concerned Countries

WARREN W. TICHENOR (United States), speaking as a concerned country, said that the United States had no interest in being the world’s jailer. In fact, President Bush and other senior officials had said on numerous occasions that they would like to see Guantanamo closed. But the United States could only close Guantanamo if they could protect themselves and their allies from the threat posed by dangerous men held there, while ensuring that transferred or released detainees were treated humanely.

The United States was a nation of laws and would continue to work with the international community to construct a common foundation to defend their nation and protect their freedom. Since the United States thought they needed to work together to move forward, they were profoundly disappointed at the Special Rapporteurs’ approach, as reflected in the report presented today.

The United States regretted that the Special Rapporteurs had declined to accept their invitation to visit Guantanamo on comparable terms as they had extended to members of their own Congress as well as foreign officials, parliamentarians, representatives of other international organizations, and other visitors. Instead, they prepared a report that asserted, without real evidentiary support, conclusions they had clearly already reached. They made no effort to go to Washington to visit with the United States Government officials directly involved in detainee issues. By contrast, the report treated second- and third-hand allegations from press reports and contacts with attorneys for the detainees as true.

The United States had submitted a detailed rebuttal of the report, copies of which were available in the room. Finally, the United States highlighted that their policies and practices had evolved significantly over time. Those changes demonstrated the self-correcting mechanisms inherent in their system of checks and balances. For example, their Supreme Court had recently ruled that Common Article 3 of the Geneva Convention applied to the conflict with al Qaida.

- Interactive Dialogue on Joint Report on Situation of Detainees at Guantanamo Bay

RODOLFO REYES RODRÍGUEZ (Cuba) said that different commissions under the Bush Administration had attempted to promote impunity. At the present situation, it was impossible for the Council to debate the situation of the detainees in Guantanamo Bay. There were more than 14,000 individuals who were victims of the Bush Administration treated with the pretext of the fight against terrorism. Did the Rapporteurs investigate the existence of places of secret detention organized by the United States? The Bush Administration had recently attempted to legalize torture by misinterpreting an article of an international convention. Did the Rapporteurs consider the suicides committed out of desperation, the mental health and the inhumane detention conditions? The detention centres were established in a territory illegally occupied. What measures would the panellist suggest so that such a situation was not repeated in the future if the centre was closed down?

VESA HIMANEN (Finland), speaking on behalf of the European Union, said the five mandate-holders were thanked for their comprehensive joint report. While committed to fighting terrorism in an effective manner, human rights and international human rights law should be respected. The report recommended that consideration should be given to trying suspected terrorists before a competent tribunal, and further information should be given on this. On the return, rendering or deportation of detainees to States where they were in danger, what would be the best way to ensure the respect of basic human rights of the detainees and minimum fair trial guarantees if the centre was closed down, he asked. Further, regarding forced feeding, what was the response of the Special Rapporteur on health to the United States claim that this was required in order to preserve the health and life of the detainees, he asked.

BLAISE GODET (Switzerland) thanked Ms. Zerrougui for presenting the joint report and said that torture and other degrading treatment should be abolished in Guantanamo, and other detention centres. International law should apply to the transfer of detainees to other countries where torture was applied as well. Switzerland asked the Chairperson/Rapporteur, in the event of the closure of the Guantanamo Bay detention centre, about the fate of detainees; where would they be transferred to and under which legal framework would they be treated. It also asked about the use of diplomatic assurances in the transfer of detainees to countries in which torture was a common practice.

MOHAMED ZIN AMRAN (Malaysia) said the two important laws – international humanitarian law and the international human rights law – continued to guide the work of the debate in the Council. The reports presented by the Special Rapporteurs and the response provided by the Representative of the United States needed to be thoroughly studied by the Council. The practice of rendition should be discontinued. Malaysia appreciated the work done by the Special Procedures on the detainees in Guantanamo.

LA YIFAN (China) said the Representative of the United States had mentioned that the Government of that country would like to accept the visit of the group of mandate-holders, and had made appropriate arrangements for them to visit Washington. This kind of arrangement sounded very attractive, and the speaker asked why this good will had been rejected by the group of mandate-holders.

CHOE MYONG NAM (Democratic People’s Republic of Korea) said the work of the mandate holders to investigate the situation of detainees in Guantanamo was interesting, and the composition of the team showed the wide scope of the situation. The gross and systematic pattern of human rights violations was condemned, in violation of relevant international human rights and humanitarian laws. If these practices persisted without a challenge, there would be a second or even third Guantanamo in other territories tomorrow, with the same or worse violations. The team should continue its mission until the problem was addressed excellently and transparently. What were the future plans of the team, the speaker asked?

SEYED KAZEM SAJJADPOUR (Iran) said Iran appreciated the work of Ms. Zerrougui, and indicated the cognitive change that had taken place in the United States, with the underlining assumption that some people were better than others, and that they could change the human rights mechanisms. Iran asked Ms. Zerrougui about possible remedies for those freed detainees who were innocent.

GALO LARENAS SERRANO (Ecuador) said that Ecuador considered that the report would strengthen the international stand in the fight against terrorism. What would be the most effective means to seize the International Court of Justice in such matters in reference to international treaties such as the Geneva Conventions?

MANUEL RODRIGUEZ CUADROS (Peru) said it was clear that the report, which was a serious and earnest one, with legal foundation, established the existence of situations and acts which were in violation of human rights, in particular when it came to torture, cruel, inhuman, and degrading treatment, excessive use of force, and a lack of due process. As the mandate holders had said, the situation should be resolved, making it possible for detainees to retrieve their rights, and the actions should be in compliance with international law in human rights. The fight against terrorism should take place in the context of respect for legality and human rights. Recommendations in the text included the possibility of considering, when it came to judging suspects, the identification of an international court, and the speaker asked for further details in this regard.

IDRISS JAZAĎRY (Algeria) thanked Ms. Zerrougui for the courageous and fair report, and recalled that the first session of the Council had considered the trade between security and human rights as a false choice. Acting in such a manner by some States would only contribute to the proliferation of terrorism.

ENZO BITETTO GAVILANES (Venezuela) said the report was objective and indicated that human rights violations were being committed in Guantanamo. Access to all places in Guantanamo should be allowed, including individual interviews with the detainees. It was said that the centres would be closed, while new construction was being carried out.

MARIETTE GRANGE, of International Commission of Jurists in a joint statement with the International Federation of Human Rights and Human Rights Watch, said the Special Rapporteurs were thanked for their analysis and report. The United States Supreme Court had found the detentions were illegal, and a new system was being created. A new law would allow the presentation of evidence obtained by torture and other cruel, inhuman, and degrading treatment, and the Special Rapporteurs were asked whether this contravened international humanitarian law. The Bush administration continued to ignore its international obligations, and would a law that narrowed the scope of outrage on human dignity change this, the speaker asked. What steps had the United States taken to end the arbitrary detentions in Guantanamo, she asked.

- Concluding Remarks by Mandate Holders on Joint Report on Situation of Detainees at Guantanamo Bay

ASMA JAHANGIR, Special Rapporteur on freedom of religion or belief, called for access to the detainees to ensure that their right to freedom of religion was being respected.

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, thanked the United States for having reiterated its commitment to close down the Guantanamo Bay detention centre, while as the same time taking into account legitimate security concerns.

The joint team of Special Rapporteurs had rejected the invitation of the United States, as they had not been granted the possibility of speaking in private to detainees, which was a necessary requisite for an objective fact-finding mission. Mr. Nowak thought that they had to concentrate on the future and find a solution.

He proposed that detainees, for which there were evidence of wrongdoing, be brought before an independent court, and for those detainees for which there was no evidence of wrongdoing to be freed immediately. In that last case, the principle of non-refoulement had to be respected. He also expressed concern about the situation in other secret detention centres, as they constituted forced disappearance for the detainees involved.

LEILA ZERROUGUI, Chairperson-Rapporteur of the Working Group on arbitrary detention, said that the right to appeal was part of the rights of detainees. They should be liberated when the charges were not justified. The United States had ratified relevant international conventions and for that reason the detainees should be freed if they were not indicted. Prolonged detention without any charge was unacceptable.

PAUL HUNT, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health , said that he had not been invited to visit Guantanamo Bay. With great respect, the United States rebuttal included some misrepresentation of what the report said, for example, in paragraph 70, a number of credible and serious allegations were made, and the United States called these conclusions, which they were explicitly not.

There was common ground on mental health, and the United States agreed that a number of the detainees suffered from this, as the report said. The prevalence of mental illness in Guantanamo was not unlike in other correctional settings, according to the United States, but there was no evidence of this, and the report showed that the condition of detainees’ mental health was worse than elsewhere, and facts, namely the number of suicides, showed the analysis was correct. On forced feeding, all that could be said was that it was difficult to conceive of the United States Government as a human rights defender of the detainees, and the United States position lacked credibility when examining all the circumstances in this regard.

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, said he had not been invited to go to Guantanamo either, but, to sum up, there were three ideas: in the report and in the various interventions, it seemed the effective fight against terrorism was incompatible with the respect for human rights.

In international human rights law, this had to be taken into consideration, and the United States knew that military commissions violated international human rights law. Regarding if these military courts were legalised, if this was accepted, it would be against international human rights law, and the same covered the acceptance of torture or degrading treatment, which went against the Geneva Convention. The speakers were United Nations Experts and had shown frankly, clearly and specifically the situation of Guantanamo Bay. It was an important report, and it really challenged the credibility of the United Nations and the work of the Special Rapporteurs.

The United Nations should condemn the dictatorial regime, and should condemn the situation and act to change it. The mandate holders intended to concern themselves with all detention centres where detainees were held incommunicado, in all countries. They would do their level best, but the situation was in the hands of the Human Rights Council.


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