Allegations of ill treatment and
the US response
56. Common Article 3 of the Geneva Conventions applies
in circumstances of an armed conflict not of an international
character to, inter alia, "those placed 'hors de combat'
by
detention."[23]
The US Supreme Court has ruled that it applies to US detainees
held at Guantánamo Bay and elsewhere. In particular, Common
Article 3 explicitly prohibits "outrages upon personal dignity,
in particular humiliating and degrading treatment." The British
Government considers that these are "the minimum legal standard
that should be applied to those detained by the US."[24]
57. There is considerable debate about what constitutes
an outrage upon personal dignity. We were told that the US military
would prefer to have a checklist of acts which fall within the
definition, but this would of course be difficult as an act which
might outrage one person, such as the desecration of a religious
item, might have no effect at all on another. Nonetheless, if
a guard at Guantánamo were deliberately to treat a detainee's
copy of the Quran with disrespectwhich a US military inquiry
in 2005 found had happened on five occasions[25]that
would clearly and understandably outrage the detainee and it is
not unreasonable to expect any guard to know that such an act
would have such an effect.
58. Such breaches of Common Article 3 are not yet
explicitly recognised in United States law. The Military Commissions
Act 2006 equates "grave breaches" of Common Article
3 with "cruel, inhuman, or degrading treatment or punishment"
as already defined in US law.[26]
It does not define, nor does it provide for prosecutions in relation
to, lesser breaches of Common Article 3. Under the Act, the President
may interpret the provisions of the Geneva Conventions in secondary
legislation.[27] Until
such regulations are made by the President, then, as Human Rights
Watch told us, the Act effectively,
narrows the scope of the offences for which
interrogators and other officials could be prosecuted under the
War Crimes Act, most notably by decriminalizing humiliating and
degrading treatment that does not rise to the level of cruel and
inhuman treatment.[28]
59. As for more serious abuses, the Committee has
set out in some of its previous Reports a number of allegations
of mistreatment and even torture of detainees at Guantánamo
Bay.[29] The British
former detainees have been particularly vocal in their claims
to have been tortured, and fresh allegations continue to be made.
Three of the released British detainees, Shafiq Rasul, Asif Iqbal
and Rhuhel Ahmedthe 'Tipton Three'released a dossier
in which they claimed that at various times while held at Guantánamo
they were abused or suffered from neglect.[30]
The allegations include beatings, disrespect for their religion,
lack of food, prolonged exposure to loud noise or to extreme temperatures,
and aggressive interrogations. In their dossier they name several
US personnel, whom they accuse of this abusive behaviour. They
also allege that abusive interrogations were witnessed by FCO
and MI5 personnel, although this has never been accepted by the
Government.
60. Both Amnesty International and Human Rights Watch
have previously told us that they regard mistreatment of the type
described by the Tipton Three as amounting to torture.[31]
In a report published jointly with the Center for Global Rights
and Justice and Human Rights First in April 2006, Human Rights
Watch referred to at least 50 cases of abuse at Guantánamo.[32]
61. The US authorities refer frequently to the 'Manchester
document.'[33] This document
was found on a computer when police raided a house in Manchester
in May 2000. It is a comprehensive terrorist manual, parts of
which have been translated and released by the US Department of
Justice. In a section on how to behave when brought before a court,
the manual advises 'brothers' to claim they have been tortured
and mistreated while in prison.[34]
Chapter seventeen, which has not been published, is said to contain
advice on how to resist interrogation.[35]
62. We have discussed in previous Reports the differing
interpretations placed by the United States and other countries,
including the United Kingdom, on the term 'torture.'[36]
This is a question we raised with those whom we met during our
visit. We were left with the strong impression that the US authorities
are very aware of the potential advantages to them of aligning
their definitions of torture and of cruel, inhuman and degrading
treatment with those used by other countries. We are less certain
that all parts of the US Administration accept that combinations
of what one might term low-grade abusive treatment, such as exposure
to loud music, bright light, extreme temperatures, deprivation
of food, water, exercise or company, could cumulatively amount
to inhumane treatment or have an effect similar to torture.
63. We questioned senior State Department and Pentagon
officials, as well as personnel at Guantánamo, about allegations
of abuse. They confirmed that a number of guards had been disciplined
for abusing detainees. We were also provided with a copy of an
investigation into allegations made by FBI personnel who had been
stationed at Guantánamo and who claimed to have witnessed
abuse by military personnel in the course of interrogations.[37]
The senior US Army officers who conducted that investigation found
that three out of 24,000 interrogations had violated authorised
techniques; that the then Commander of the Joint Task Force had
failed to monitor the interrogation of one high value detainee
in late 2002; that the interrogation of this same high value detainee
resulted in degrading and abusive (but not inhumane) treatment;
and that the communication of a threat to another high value detainee
was in violation of official guidance.
64. Among the interrogation techniques the inquiry
found to be acceptable were "playing loud music, manipulating
the air conditioning to make a detainee uncomfortable during interrogation,
and carefully controlled acts of sexual humiliations."[38]
The investigating team found no evidence of torture or of inhumane
treatment at Guantánamo. Further allegations that guards
at the camp bragged about mistreating detainees were raised by
a US Marine Sergeant, Heather Cerveny, in September. These allegations,
too, have been investigated and, according to the US media, the
Army Colonel appointed to inquire into the allegations has submitted
his report.[39]
65. Another senior US military figure, retired General
Barry R McCaffrey, visited the detention centre just three months
before we did. In a report for the US Military Academy, General
McCaffrey concluded that:
During the first 18 months of the war on terror there
were widespread, systematic abuses of detainees under US control
in Iraq, Afghanistan, and Guantánamo. Some were murdered
and hundreds tortured or abused. This caused enormous damage to
US military operations and created significant and enduring damage
to US international standing. We have been routinely condemned
by the international community.
Although some low level
officers, NCOs, and soldiers have been administratively punished
or prosecutedthe public denial of wrong-doing by DOD [Department
of Defense] has created a widespread belief in the world community
that the US has unilaterally walked away from Federal and international
treaty restrictions on torture.[40]
66. The various investigations by the US authorities
into allegations of abusewhich we welcome as evidence of
the determination of the US to apply rigorously the standards
it has sethave not satisfied public opinion. Neither, as
General McCaffrey observes, has the "public denial of wrong-doing"
by the US Administration convinced the rest of the world that
no wrong has been done. Guantánamo Bay has become what
the Foreign Secretary recently called a "discrediting influence."[41]
Whether torture as well as lesser forms of abuse has occurred
at Guantánamoand we are no more able to be certain
on this point than are others who have not been directly involvedthe
damage to the reputation of the US has been done, and is severe.
67. The evidence on how the US authorities deal with
allegations of mistreatment is contradictory. On the one hand,
we were repeatedly told by the authorities in Washington and in
Guantánamo that all credible allegations are thoroughly
investigated and that where US personnel have been found guilty
of abuse, they have been punished. On the other hand, although
we were told that the allegations made in the dossier produced
by the Tipton Three had been investigated and found to be groundless,
there is no published record of that investigation; nor have the
punishments of those who have been found guilty of committing
other abuses at Guantánamo been published.[42]
What does seem clear is that those allegations that have been
most thoroughly investigated have been raised by US personnel
who claim to have witnessed their colleagues engaging in acts
of abuse, whereas there is little evidence that uncorroborated
allegations made by detainees who claim to have been victims of
abuse, or to have witnessed it, have been taken as seriously.
68. The frequent references by US officials to the
Manchester Document and in particular to the advice contained
in that document for detained terrorists to make false claims
of abuse and mistreatment have not led us to conclude that all
such claims must therefore be bogus, although some surely are.
It is for those investigating claims of abuse to determine if
they are well-founded. In the case of Guantánamo, of course,
those who investigate allegations of abuse wear the same uniform
as those accused and, fairly or unfairly, this reduces confidence
in the outcomes. We have no doubt that some of the claims of ill
treatment at Guantánamo are unfounded or exaggerated; we
are no less certain that abuse of some detainees has taken place.
69. However, it appears that many if not most of
the allegations of torture or severe abuse at Guantánamo
relate to the first two years of the facility's operation, from
2002 to 2004. While this does not make the allegations any less
seriousnor does it reduce the need to inquire into them
properlyit does suggest that conditions there may have
improved over time. Certainly, those of us who visited in September
2006 felt that the present leadership both in the Joint Task Force
and in the Pentagon's Office for Detainee Affairs is serious about
preventing abuse. No doubt individual officers will from time
to time fail to adhere to official policyas will happen
in any prisonbut the systematic cruelty alleged to have
been practised on detainees in the first two years, and which
has still not been satisfactorily investigated, is in our view
probably absent from Guantánamo today.
70. We conclude
that abuse of detainees at Guantánamo Bay has almost certainly
taken place in the past, but we believe it is unlikely to be taking
place now. Although violence and low-level abuse are endemic in
any high-security prison situation, it is the duty of the detaining
authority to strive to its utmost to minimise them. We recommend
that the Government continue to raise with the United States authorities
human rights concerns about the treatment of detainees.
Forced feeding of hunger strikers
71. In its written evidence, Amnesty International
drew our attention to the treatment of hunger strikers at Guantánamo:
there have been serious allegations of ill-treatment
of hunger strikers during force-feeding. Although Amnesty International
has no position on force-feeding per se, it considers that if
forcible feeding is done in such a way as deliberately to cause
suffering this would constitute torture or other ill-treatment.
Detainees have alleged having nasal tubes roughly inserted into
their noses without anaesthetic or gel, causing choking and bleeding.
Some of the hunger strikers have alleged being placed in punitive
restraints during force-feeding and being subjected to verbal
and physical abuse by guards.
72. We raised the question of forcible feeding with
the Pentagon and with the Camp Delta authorities. They told us
that, although at one stage more than 30 detainees were being
forcibly fed, at the time of our visit (September 2006) just two
detainees who had been on long-term hunger strike were being fed
using a tube inserted through the nose (enteral feeding). This
procedure has to be authorised by the Commander personally. Such
authorisation is generally given only when a striker's weight
goes down to 85 percent of ideal body weight, or food has been
refused at 21 consecutive mealtimes. We saw the equipment used
for feeding hunger strikers, which is the same as that used in
US federal prisons. Restraining chairs are used if necessary.
73. The US authorities apply the same forcible feeding
policy to hunger strikers in their mainland prisons, regarding
it as their duty to preserve life. The Red Cross, however, regards
forcible feeding as breaching the World Medical Association's
Malta Declaration of 1991 (reaffirmed at its annual meeting in
October 2006), which states:
Forcible feeding is never ethically acceptable. Even
if intended to benefit, feeding accompanied by threats, coercion,
force or use of physical restraints is a form of inhuman and degrading
treatment.[43]
We were told that the two prisoners being artificially
fed in September 2006 were co-operating with the procedure.
Violence by detainees
74. Those of us who visited Guantánamo were
shown a number of weapons fashioned by inmates from items available
to them even in the tightly-controlled environment in which they
are detained. These included stabbing weapons fashioned from metal,
plastic or glass, and rope garrottes. JTF personnel have been
attacked using such weapons and we were told they are routinely
spat at or struck. We were also told that some have had 'cocktails'
of urine, blood and semen, or faeces, thrown over them. We do
not doubt the veracity of these statements.
75. Detainees have also carried out violent assaults
on each other, and some have committed suicide. The need to prevent
suicideswhich on the most recent occasion were portrayed
by the base Commander as "not an act of desperation, but
an act of asymmetric warfare against us"[44]is
cited as one reason for constant surveillance of detainees, necessitating
24-hour lighting, and as a reason for restricting the items they
may have in their cells.
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