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Letter to the Chairman of the Committee from the International Committee of the Red Cross
House of Commons Foreign Affairs Committee Report on its Visit to Guantánamo Bay: Second Report of Session 2006-07, January 2007
Thank you for your message, conveyed to us on January 26, 2007, in which you invite the International Committee of the Red Cross (ICRC) to provide observations we may have in respect of the January 10, 2007 House of Commons Foreign Affairs Committee Report Visit to Guantánamo Bay, and specifically regarding references in the Report to the ICRC. We would wish to take this opportunity to share with you some of our views on certain legal issues mentioned in the Report in order to clarify any misunderstandings.
As a neutral, independent and impartial humanitarian organization the ICRC's mandate, under the treaties of international humanitarian law and the Statutes of the International Red Cross and Red Crescent Movement, is to assist and protect persons affected by armed conflict or other situations of violence. Forming part of our protection activities are visits we make to persons deprived of liberty. Last year alone, ICRC visits to places of detention worldwide benefited more than half a million persons. Our detention visits to the Guantánamo Bay facility operated by United States authorities in Cuba commenced shortly after the arrival of the first detainees in January 2002. They continue to take place on a sustained and regular basis.
As is well-known, in that context, as in others, our method of work in places of detention involves dialogue with, and the submission of bilateral, confidential reports to, the detaining authorities. Follow-up representations are also made by the ICRC after its visits to places of detention with a view to ensuring the implementation of applicable legal standards in detention practice.
While the ICRC is the only external organization (apart from lawyers) that has been granted direct access to detainees in the Guantánamo Bay facility, we do not take any position on whether similar access should be granted to others. In Guantánamo, as elsewhere, this issue remains within the purview of the relevant detaining authority. The treaties of humanitarian law and the Statutes of the International Red Cross and Red Crescent Movement provide a basis for ICRC detention visits in armed conflicts and other situations of violence, but do not restrict any detaining authority from granting access to other organizations or individuals.
As regards the adequacy of existing humanitarian law for contemporary armed conflicts, it is our view that the Geneva Conventions, their two Additional Protocols and customary international humanitarian law continue to provide an essential framework for the protection of both victims of armed conflicts as well as those directly involved in them.
As you and your committee colleagues will be aware, the treaty provisions applicable to international armed conflicts, developed over one and a half centuries, are both comprehensive and detailed. It is our perception that they continue to be generally accepted as a valid expression of the balance between the needs of humanity, on the one hand, and military considerations in inter-State armed conflict, on the other. While the basic treaty regulation of non-international armed conflicts is less developed - Article 3 common to the Geneva Conventions and Additional Protocol II - it is supplemented by rules of customary international humanitarian law, human rights law and domestic law, which also remain in force in these types of conflicts.
While there may thus be, and clearly are (as with any body of law), discrete issues that humanitarian law does not elaborate on in sufficient detail, we believe that its basic principles and rules continue to serve the protective purposes for which they were devised.
We would like to emphasize that our views on the continued relevance of international humanitarian law in contemporary armed conflicts rest on the assumption of its correct application and interpretation. International humanitarian law governs situations of armed conflict only, that is, situations of hostilities involving parties to an armed conflict in the practical and legal sense. When violence does not reach the threshold of an armed conflict, humanitarian law is not the proper legal framework and other legal regimes - human rights law, domestic law - provide the necessary rules.
In this context, international humanitarian law, in our view, does not and cannot be expected to regulate the totality of what is colloquially referred to as the "global war on terrorism". Domestic and international efforts to prevent and put a stop to terrorist activities involve a range of measures that, only at the far end, might involve armed conflict in the legal sense - for example, the war in Afghanistan. We apply a case-by-case approach in determining whether a particular situation of violence amounts to an armed conflict, in the legal meaning of that term, in order precisely to ensure that persons affected can rely on the most protective international legal framework applicable.
Without going into details, the ICRC does not, for example, share the view that notions such as "prisoner of war", on the one hand, or "irregular combatant", on the other, can be applied to each and every person detained in the "war on terrorism". The legal status and rights of persons deprived of liberty should be established based on the facts, which may lead to the application of different legal regimes.
As an organization whose operational activities take place in situations of violence, we are fully aware of the serious challenges facing individual States and the international community, as a whole, in dealing with contemporary forms of violence. Our legal reading is based on the practical observation that present-day violence often may be categorized within a broader spectrum, and that international humanitarian law is one among several legal tools applicable to such. It is in light of this fact that, over the past several years, the ICRC has undertaken a number of initiatives to facilitate further clarification and development of humanitarian law in close cooperation with, among others, UK military and legal experts. We remain open to all other proposals for review of humanitarian law aimed at further strengthening the protection of persons affected by armed conflict.
In conclusion, we would be pleased to provide you with any further information on our legal positions that you might deem necessary and to answer any further questions or comments you may have.
Simon Brookes ICRC Senior Delegate London
9 February 2007 |