Written evidence submitted by Amnesty
International UK
AMNESTY INTERNATIONAL
Amnesty International is a worldwide membership
movement. Our vision is of a world in which every person enjoys
all of the human rights enshrined in the Universal Declaration
of Human Rights. We promote all human rights and undertake research
and action focussed on preventing grave abuses of the rights to
physical and mental integrity, freedom of conscience and expression
and freedom from discrimination.
Amnesty International welcomes the Foreign Affairs
Committee's interest in Guantánamo Bay. Amnesty International
further welcomes the opportunity to contribute to the work of
the Committee in its scrutiny of the FCO's human rights policy.
The Committee plays an invaluable role in the examination of this
policy; the recommendations that it makes are clearly taken seriously
by the Secretary of State and the FCO. It is vital to the continued
accountability of government policy that the Committee continue
to undertake this critical work.
SECURITY AND
HUMAN RIGHTS
Amnesty International fully recognises the serious
nature of today's threats to public safety and the obligation
on all states to act to protect their citizens. The duty of the
USA to bring to justice anyone responsible for crimes, including
the crime against humanity that was committed on 11 September
2001, is undisputed. However, unless governments across the world
respond to this security threat in a manner that is fully grounded
in respect for human rights and the rule of law, they risk undermining
the values they seek to protect and defend.
GUANTÁNAMO
BAY
In November 2001, President Bush signed a Military
Order on the Detention, Treatment and Trial of Certain Non-Citizens
in the War Against Terrorism. Anyone held under the Military Order
can be detained indefinitely without charge or trial. The Military
Order also provided for trial by military commission—executive
bodies, not independent or impartial courts—whose verdicts,
including death sentences, could not be appealed in any court.
In May 2006, the US administration told the UN Committee against
Torture that all those held in US custody in Guantánamo
were held under the Military Order.
In June 2006, the US Supreme Court, in Hamdan
v Rumsfeld, concluded that the military commissions as established
under the Order violated US and international law. The US government
responded to the Hamdan ruling by passing the Military Commissions
Act of 2006. While the commissions that can be established by
the President under the Act would be an improvement on their fundamentally
flawed predecessors under the Military Order, Amnesty International
remains deeply concerned that any trials convened under the Act
are unlikely to meet international fair trial standards.
This submission outlines some of Amnesty International's
concerns regarding the legal status of detainees at Guantánamo,
their access to due legal process, the conditions under which
they are detained, interrogation techniques and options for the
closure of the camp.
LEGAL STATUS
OF DETAINEES
All persons have the right to liberty. A person's
liberty may only be restricted for reasons and in accordance with
procedures set out in national and international law. In its authoritative
commentary on the provisions of the Fourth Geneva Convention,
the International Committee of the Red Cross (ICRC) stresses that:
"Every person in enemy hands must have some
status under international law: he is either a prisoner of war
and, as such, covered by the Third Convention, a civilian covered
by the Fourth Convention, or again, a member of the medical personnel
of the armed forces who is covered by the First Convention. There
is no intermediate status; nobody in enemy hands can be outside
the law."
However, in the context of what it conceptualises
as a global and armed "war on terror", the USA has created
an intermediate and loosely-defined status outside the law termed
"enemy combatant". International law does not recognise
such a category of detainee.
International humanitarian law and international
human rights law contain rules for the categorisation of detainees.
The international armed conflict in Afghanistan ended in June
2002.[4]
When that armed conflict ended, those who were captured by the
USA during hostilities[5]—and
who the USA was obliged to treat as prisoners of war in the absence
of a determination "by a competent tribunal" that they
were not[6]—were
required to be released, unless charged with criminal offences.[7]
Civilians detained in that conflict were entitled
to have their detention ("internment") reviewed "as
soon as possible" by a "court or administrative board".[8]
They too were required, when that conflict ended, to be released,
unless charged with recognised criminal offences.[9]
Those detained later in Afghanistan, for reasons
related to the subsequent non-international armed conflict there[10]
and transferred to Guantánamo were required, as a minimum,
to have their detention promptly, and thereafter periodically,
reviewed.[11]
Those detained in countries outside of the zones
of armed conflict and transferred to Guantánamo should
always have been treated as criminal suspects, therefore subject
to international human rights law, including the right to a prompt
judicial review of the lawfulness of their detention and to release
if that detention is deemed unlawful, and if prosecuted to be
tried in proceedings which meet international standards of fairness.[12]
The USA has applied none of these provisions
of international humanitarian law and international human rights
law in determining the status of the Guantánamo detainees:
— it has not treated those captured
during the international armed conflict in Afghanistan initially
as prisoners of war, pending determination of their status by
a court;
— it has not convened a court to determine
whether or not persons captured during the international armed
conflict in Afghanistan are entitled to prisoner of war status;
— it has not reviewed promptly the
detention of those captured during the subsequent non-international
armed conflict in Afghanistan;
— it has not brought the detention
of civilians promptly under judicial review, tried or released
them;
— it did not, at the close of international
hostilities, release the detainees captured during hostilities,
with the exception of those against whom criminal procedures had
been initiated—in fact, the USA initiated no such procedures.
In view of the above, Amnesty International
believes that all those currently held in Guantánamo are
arbitrarily and unlawfully detained.
ACCESS TO
DUE LEGAL
PROCESS
Amnesty International takes no position on the
guilt or innocence of detainees prior to trial; that is precisely
what a fair trial by an independent and impartial tribunal is
supposed to determine. However, the vast majority of those held
by the USA in the "war on terror" are unlikely ever
to face US trials and the US authorities continue to oppose and
resist full judicial review of the detentions. By the time of
the Hamdan ruling in June 2006, two years after the US Supreme
Court ruled in Rasul v Bush that the US federal courts
had jurisdiction to consider habeas corpus appeals from
detainees held at Guantánamo, not a single detainee then
held at the base had had the lawfulness of his detention judicially
reviewed on its merits. Only 10 detainees held in Guantánamo
had been charged for trial by military commission by 29 June 2006,
when the Supreme Court ruled in Hamdan v Rumsfeld that
military commissions as constituted under the Military Order of
November 2001 were unlawful.
As outlined below, the Military Commissions
Act of 2006 provides for the US courts to be stripped of the jurisdiction
to consider challenges from non-US citizens held as "enemy
combatants" in US custody in Guantánamo or elsewhere
against the lawfulness or conditions of their detention in habeas
corpus appeals.
Status review
Judicial review of the lawfulness of detention
is a fundamental principle of international human rights law which
now covers all those held in Guantánamo. Judicial review
is an integral component of the prohibition against arbitrary
detention and a fundamental protection against torture or other
cruel, inhuman or degrading treatment.
For more than two years, the USA detained hundreds
of individuals in a legal black hole with no process of review.
Then in June 2004, the US Supreme Court ruled in Rasul v Bush
that the federal courts had jurisdiction to hear appeals from
foreign nationals detained at Guantánamo. In response to
this decision, the US administration devised the Combatant Status
Review Tribunals (CSRTs).
The CSRT is an inadequate administrative procedure
consisting of panels of three military officers allowed to rely
on classified and/or coerced evidence (in violation of the Geneva
Conventions) against a detainee denied legal representation and
presumed to be an "enemy combatant", as broadly defined,
unless he shows otherwise. To take the example of a Kuwaiti detainee
held without charge or trial in Guantánamo:
"One of the primary pieces of evidence upon
which the CSRT designated Abdullah Al Kandari to be an enemy combatant
is that, more than a year after he was brought to Guantánamo...
, his `alias' allegedly was found on a list of names on a document
saved on a computer hard drive allegedly `associated with a senior
al Qaida member'. Mr Al Kandari stated that he is not known by
any aliases and asked what name appeared on the list, but the
CSRT told him that the information was classified. The name of
the `senior al Qaida member' was likewise classified, as was the
place where the hard drive was found. Mr Al Kandari was thus left
to defend himself against the accusation that an unknown alias
of his appeared on a list on a computer found somewhere in the
world associated with someone. It is impossible to rebut such
a charge, and Mr Al Kandari said so: `The problem is the secret
information, I can't defend myself'."[13]
Amnesty International believes that the CSRTs
and subsequent annual Administrative Review Boards (ARBs) are
inadequate and in no way a lawful or appropriate substitute for
judicial review. A federal judge has characterised the CSRT has
having "fundamental deficiencies", including its reliance
on classified evidence and the lack of legal counsel for the detainee
to compensate for this deficiency.[14]
Neither the CSRT nor the ARB satisfy the requirements for a judicial
review of the legality of the Guantánamo detentions under
articles 9(3) and 9(4) of the International Covenant on Civil
and Political Rights. The CSRT also fails to constitute the "competent
tribunals" required by the Third Geneva Convention.
Military commissions
Any trials, whatever the status of the person
being tried, must be carried out in proceedings that meet international
standards of fairness. Amnesty International has some specific
concerns about the system of military commissions. On 29 June
2006, the US Supreme Court ruled in Hamdan v Rumsfeld that
military commissions as constituted under a Military Order signed
by President Bush in November 2001, were unlawful as they had
not been expressly authorised by Congress, and violated international
law and US military law. Amnesty International welcomed this ruling
and called on the USA to use it as a springboard for real change
in detention policies and practices. However, the US administration
responded to the ruling with a firm defence of its policies and
Congress passed legislation entrenching them.
On 17 October 2006, President Bush signed into
law the Military Commissions Act. The Act facilitates human rights
violations and impunity for them, frustrates detainees' access
to remedies, and threatens to lead to unfair trials by:
— Stripping the US courts of jurisdiction
to hear or consider habeas corpus appeals challenging the
lawfulness or conditions of detention of any non-US citizen held
in US custody as an "enemy combatant". Habeas corpus
is a fundamental safeguard against enforced disappearance, arbitrary
detention and torture or other cruel, inhuman or degrading treatment.
— Prohibiting any person from invoking
the Geneva Conventions or their protocols as a source of rights
in any action in any US court.
— Permitting the executive to convene
military commissions to try "alien unlawful enemy combatants",
as determined by the executive under a dangerously broad definition,
in trials that threaten to provide foreign nationals so labelled
with a lower standard of justice than US citizens accused of the
same crimes. This would violate the prohibition on the discriminatory
application of fair trial rights.
— Permitting civilians captured far
from any battlefield to be tried by military commission rather
than civilian courts, contradicting international standards and
case law.
— Establishing military commissions
whose impartiality, independence and competence would be in doubt
due to the overarching role that the executive would play in their
procedures.
— Permitting, in violation of international
law, the use of evidence extracted under cruel, inhuman or degrading
treatment or punishment, or as a result of "outrages upon
personal dignity, particularly humiliating or degrading treatment",
as defined under international law.
— Permitting the use of classified
evidence against a defendant, without the defendant necessarily
being able effectively to challenge the "sources, methods
or activities" by which the government acquired the evidence.
— Giving the military commissions the
power to hand down death sentences, in likely contravention of
international standards which only permit capital punishment after
trials affording "all possible safeguards to ensure a fair
trial".
— Limiting the right of charged detainees
to be represented by counsel of their choosing.
— Failing to provide any guarantee
that trials will be conducted within a reasonable time.
Amnesty International is campaigning for the
repeal of the Act.
CONDITIONS IN
WHICH DETAINEES
ARE HELD
AND TREATMENT
BY THE
DETAINING AUTHORITY
Indefinite detention in Guantánamo Bay
is in and of itself a human rights violation, continuing to cause
distress to detainees, their relatives and their communities.
In its May 2006 report, the UN Committee against Torture said
that "detaining persons indefinitely without charge constitutes
per se a violation of the Convention [against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment]."[15]
Amnesty International also considers the conditions
of confinement at Guantánamo Bay to breach the Convention
against Torture. While some detainees have been transferred to
a section where they have more out-of-cell time and contact with
other detainees, most continue to be confined to small cells with
little contact with other inmates and minimal opportunities for
exercise. Some detainees are held in extreme isolation in Camp
V: a segregation block apparently modelled on "supermaximum"
security prisons in the USA. The Committee against Torture is
concerned about the "extremely harsh regime imposed in detainees
in "supermaximum prisons".[16]
Inmates in Camp V are reportedly held for up to 24 hours a day
in solitary confinement in small concrete cells. They are allowed
out of their cells three times a week for a shower and exercise,
although reportedly this is often reduced to once a week. Such
conditions fall short of UN minimum standards which provide that
prisoners should receive at least one hour of exercise daily.
Prisoners in Camp V are reportedly subjected to 24 hour lighting,
which US courts have held to be "cruel and unusual"
in US mainland segregation units.
Well into 2006, an unknown number of detainees
remained on hunger strike; 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.
The conditions and uncertainty about detainees'
fate have reportedly contributed to severe mental and emotional
stress and there have been numerous suicide attempts. As of May
2006, The US Department of Defense had reported over thirty attempts,
but has reclassified others as "manipulative self-injurious
behaviour", indicating a disregard for detainees' welfare
as well as the circumstances underlying such incidents. On 10
June 2006, three detainees were found dead in their cells, apparently
having hanged themselves. All three had previously participated
in hunger-strikes and been subjected to force-feeding. All were
held in a maximum security section of the camp. One was reportedly
just 17 when he was taken into custody. Amnesty International
is disturbed by descriptions of these suicides by US officials
as "asymmetric warfare" and "a good PR move".
INTERROGATION TECHNIQUES
The USA's protections against torture or other
cruel, inhuman or degrading treatment are less than adequate.
Among other things, the USA's treaty reservations mean that the
USA considers itself, including under the Detainee Treatment Act,
bound by the prohibition on cruel, inhuman or degrading treatment
or punishment only to the extent that it matches existing US law.
Under US Supreme Court jurisprudence, conduct is banned that "shocks
the conscience". Justice Department lawyers reportedly view
this as allowing consideration of the context in which abuse of
detainees occurs.
Thus the USA adheres to a less than absolute
ban on torture and other ill-treatment. Indeed, on 6 September
2006, President Bush justified the secret CIA detention and interrogation
programme for use against certain "high-value" detainees
on the grounds of necessity. He said that "it has been necessary
to move these individuals to an environment where they can be
held secretly [and] questioned by experts" using unspecified
"alternative" techniques to extract information from
detainees allegedly resistant to interrogation. "Military
necessity" has also been used to justify torture or ill-treatment
at Guantánamo under at least one of two "special interrogation
plans" authorised by Secretary of Defence Rumsfeld.
In 2002 information was obtained through litigation
under the Freedom of Information Act and through leaks of an interrogation
log detailing various interrogation techniques used at Guantánamo
Bay. Interrogators asked for and received authorisation from Secretary
Donald Rumsfeld to use additional interrogation techniques against
certain detainees who were allegedly proving resistant to "standard"
interrogation procedures. In memos dated December 2002 and April
2003, Secretary Rumsfeld approved, "as a matter of policy",
a number of techniques including stress positions, sensory deprivation,
isolation, the use of 20-hour interrogations, hooding during transportation
and interrogation, stripping, forcible shaving, "dietary
manipulation", "environmental manipulation" and
"using detainees' individual phobias (such as fear of dogs)
to induce stress".
Many of the techniques listed above, even if
applied in isolation or for limited period, would in Amnesty International's
view violate the prohibition of cruel, inhuman or degrading treatment
or punishment. Such techniques have reportedly been used against
detainees in combination and for prolonged periods, causing severe
pain and suffering (physical, mental or both) and, being inflicted
intentionally by officials for the purpose of obtaining information,
thereby amount to torture.
Amnesty International has raised with the US
government the cases of Mohamed al-Qahtani and another detainee,
believed to be Mohamedou Ould Slahi, for whom special interrogation
plans were requested.
Mohamedou Slahi
On 4 August 2002, Mauritanian national Mohamedou
Slahi was transferred to Guantánamo. In his 2004 CSRT hearing,
Mohamedou Slahi said that he was "not willing" to answer
questions about whether he had been abused. However, in his ARB
hearing a year later, he made allegations about his treatment.
At this point, the government's transcript states that "the
recording equipment began to malfunction". Therefore, the
ARB report only summarises the Board's recollection of what Mohamedou
Slahi alleged. The report states: "The detainee discussed
how he was tortured while here at GTMO by several individuals."
Mohamedou Slahi alleged that he had been sexually harassed by
a female interrogator. Mohamedou Slahi went on to detail a beating
he alleged he had received at the hands of two masked interrogators.
According to the 2005 "Schmidt/Furlow"
military investigation into FBI allegations of abuse at Guantánamo,
from July to October 2003, Mohamedou Slahi was subjected to "environmental
manipulation" (extremes of hot and cold using air-conditioning).
The investigation concluded that no disciplinary action was required
as "environmental manipulation" was an interrogation
technique that had been approved by the Secretary of Defense,
and there was "no evidence in the medical records of the
[detainee] being treated for hypothermia or any other condition
related to extreme exposure." The investigation concluded
that it was unable to corroborate Mohamedou Slahi's allegations
that he had been beaten, or that he had been subjected to sexual
humiliation by female interrogators (although it acknowledged
that "female interrogators used their status as females to
distract the [detainee]"). Not in the published report was
the statement given to the investigators by a former psychiatrist
with the Behavioural Science Consultation Team at Guantánamo
who stated that "sexual tension" was one of many authorised
interrogation techniques. This could incorporate "shocking
behaviour [that] would be culturally taboo, disrespectful, humiliating...".[17]
The investigation did find that Mohamedou Slahi had
been threatened with death and "disappearance" by military
interrogators. The detainee had also been told that his family
was in US custody, and that he should cooperate in order to help
them.
Mohamed al-Qahtani
A FBI memorandum of 14 July states: "In September
or October of 2002 FBI agents observed that a canine was used
in an aggressive manner to intimidate detainee 63 and, in
November 2002, FBI agents observed Detainee 63 after he had
been subject to intense isolation for over three months. During
that time period, 63 was totally isolated (with the exception
of occasional interrogations) in a cell that was always flooded
with light. By late November, the detainee was evidencing behavior
consistent with extreme psychological trauma (talking to non-existent
people, reporting hearing voices, crouching in a cell covered
with a sheet for hours)."
Mohamed al-Qahtani was subjected to intense isolation
for three months in late 2002 and early 2003. He was variously
forced to wear a woman's bra and had a thong placed on his head;
was tied by a leash and led around the room while being forced
to perform a number dog tricks; was forced to dance with a male
interrogator while forced to wear a towel on his head "like
a burka"; was subjected to forced standing, forcible shaving
of his head and beard during interrogation (and photographing
immediately after this), stripping and strip-searching in the
presence of women, sexual humiliation, culturally inappropriate
use of female interrogators, and to sexual insults about his female
relatives; had water repeatedly poured over his head; had pictures
of "swimsuit models" hung round his neck; was subjected
to hooding, loud music, white noise, and to extremes of heat and
cold through manipulation of air conditioning.
Other forms of humiliation included being forced
to urinate in his clothing when interrogators refused to allow
him to go to the toilet. Mohamed al-Qahtani was interrogated for
18-20 hours per day for 48 out of 54 consecutive days. According
to a military investigator, in the four hours that he was not
under interrogation, "he was taken to a white room... with
all the lights and stuff going on and everything..." During
the period of his interrogation, al-Qahtani was allegedly subjected
to a fake rendition, during which he was injected with tranquilisers,
made to wear blackened goggles, and taken out of Guantánamo
in a plane.
These cases illustrate the inadequacy of investigations,
the lack of accountability for torture or ill-treatment including
at high-levels of government, and how the USA's notion of humane
treatment does not meet international standards. No one has been
brought to account for the torture and ill-treatment of either
of these detainees, despite findings by military investigators
that they were ill-treated in Guantánamo, including under
techniques authorised by Secretary of Defense Donald Rumsfeld.
The ill-treatment of the detainee believed to be Mohamedou Slahi
took place when the ICRC was denied access to him for more than
a year.
Amnesty International is concerned that if the
administration weighs abuse against national security or similar
notions, the end result may be less than an absolute ban. Thus,
if a detainee is believed to have information considered by the
government to be important to national security, the "shocks
the conscience" test could be interpreted by the government
as allowing detention conditions and interrogation techniques
that would otherwise be unlawful. In addition, Amnesty International
urges President Bush to withdraw his signing statement to the
Detainee Treatment Act, which carries the risk of being used to
undermine the protections against cruel, inhuman or degrading
treatment contained in that legislation. Finally, Amnesty International
reiterates its call for the USA to ratify the Optional Protocol
to the UN Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
OPTIONS FOR
THE FUTURE
OF THE
DETENTION FACILITY,
INCLUDING CONSEQUENCES
OF CLOSURE
AND DIFFICULTIES
IN RELEASING
OR TRANSFERRING
DETAINEES
Amnesty International was one of the first international
organisations to call for the closure of the Guantánamo
detention camp. The organisation believes that the detainees must
be charged without further delay and brought to trial within a
reasonable time in full accordance with international fair trial
standards, or else released. In addition, no detainee upon release
should be forcibly returned to any country where they risk serious
human rights violations. Amnesty International's 12-point framework
for closing Guantánamo is appended to this submission.
ROLE OF
THE UK GOVERNMENT
Recent comments by the Prime Minister, Foreign
Secretary, Lord Chancellor and Attorney General not withstanding,
Amnesty International believes that the UK Government has failed
to publicly oppose the human rights scandal that is Guantánamo
with any vigour. We urge the UK Government, and all other governments,
to take a clear and public position; they should demand that the
USA close the facility.
At least eight former UK residents remain detained
at Guantánamo. These include men who had been residents
in the UK for a long time and who have family members who are
UK nationals; others had been granted refugee status in the UK.
To date, the UK Government has agreed to petition its US counterpart
to seek the release and return to the UK only of Bisher Al-Rawi.
Amnesty International considers that the UK
Government has failed to take adequate measures aimed at safeguarding
the rights and ensuring the return of all UK residents detained
at Guantánamo. The organisation noted the recent judgment
by the Court of Appeal of England and Wales in the case of Al
Rawi & Others v The Secretary of State for Foreign and Commonwealth
Affairs & Anor, according to which the UK Government is
not obliged to intervene on behalf of the UK residents. In the
immediate aftermath of the judgment, Amnesty International expressed
its disappointment at the ruling, which the organisation considers
to be legally flawed.
Amnesty International considers that the UK
Government is obliged under domestic and international law to
make representations on behalf of all UK residents still held
at Guantánamo Bay to ensure that their human rights are
upheld. Furthermore, in the knowledge that the human rights of
all of those held at Guantánamo Bay have been violated,
and continue to be violated, Amnesty International believes that
there exists an additional obligation that the UK authorities
demand that all UK residents held at the camp are returned to
the UK unless they are charged, without delay, with a recognizably
criminal offence and tried by a competent, independent and impartial
court in proceedings which meet international standards of fairness
and exclude the possibility of the imposition of the death penalty.
Amnesty International is also dismayed at the
attitude of the UK authorities to the case of David Hicks. In
December 2005, a UK court ruled that David Hicks, an Australian
national detained at Guantánamo Bay, was entitled to be
registered as a UK citizen and therefore to receive assistance
by the UK authorities. (His mother was born in the UK). This ruling
was upheld by the Court of Appeal in April 2006, and the UK government
was refused leave to appeal against it. However, the UK Government
introduced an amendment to legislation to enable the Home Secretary
to strip David Hicks of his UK nationality as soon as it was granted.
Thus, on 7 July 2006, David Hicks was granted UK citizenship,
and stripped of it some hours later. He is appealing against the
Secretary of State's decision to deprive him of his UK nationality.
In addition, Amnesty International is concerned
that the UK authorities have failed to undertake a full independent
and impartial investigation into the UK's involvement in the cases
of Bisher Al-Rawi, a UK resident, and Jamil El-Banna, another
UK resident held at Guantánamo Bay who had been granted
status in the UK. It has been alleged that the UK was involved
in the arrest of both men in Gambia and their eventual rendition
to US custody. The investigation must establish whether UK security
services were complicit, whether wittingly or unwittingly, in
their detention and subsequent human rights violations; anyone
who is suspected of being responsible for abuses against them
should be brought to justice.
Amnesty International has also called for an
independent and impartial investigation into reports that UK intelligence
agents were involved in the treatment of Benyam Mohammed al-Habashi,
another former UK resident held at Guantánamo Bay.
CONCLUSIONS
Nearly five years after it first opened, more
than 400 people of around 35 different nationalities remain in
detention without charge or trial at Guantánamo Bay. The
detention centre has become a symbol of injustice and abuse in
the US government's "war on terror". The selective disregard
for international law by the USA in the context of the "war
on terror" has enormous influence over the rest of the world.
When the USA commits serious human rights violations it sends
a signal to abusive governments that these practices are permissible.
This is why Guantánamo Bay is so important: it tells other
governments that they too can commit human rights violations in
the name of counter-terrorism.
Amnesty International takes no position on the
guilt or innocence of the detainees at Guantánamo Bay.
However, Amnesty International does insist that their human rights
be respected, including the right of any detainee to be able to
challenge the lawfulness of their detention in a court of law,
the right to an effective remedy for any violations of their rights,
and the right, if charged with a recognizably criminal offence,
to a trial within a reasonable time in procedures that fully accord
with international law. Amnesty International reiterates its absolute
and unconditional opposition to the death penalty. Every person
also has a right to be free from torture and other ill-treatment
at all times and under all circumstances. To date, the US administration
has failed to afford these basic rights to those held in Guantánamo.
Amnesty International also believes that the
UK has failed to publicly oppose the human rights scandal that
is Guantánamo with any vigour or to take adequate measures
with regard to the UK residents still detained at Guantánamo.
For all our concerns over the detention camp
at Guantánamo Bay, it represents the visible face of US
detention. On 6 September 2006, President Bush for the first time
publicly admitted the existence of secret US detention facilities.
He said that with the transfer of 14 "high-value" detainees
to Guantánamo, there was no-one still held in secret US
detention. However, he did not rule out the possibility of further
secret detentions in the future.
When people are held in secret detention and
the authorities refuse to disclose their fate or whereabouts,
they have "disappeared". This practice, known as enforced
disappearance, is expressly prohibited under international law;
international law requires that any person deprived of their liberty
be held in an officially recognised place of detention. All such
facilities must be opened to independent scrutiny. All detainees
should have access to the courts and should be treated humanely.
These are basic principles that cannot be overridden even in time
of war or national emergency. Amnesty International urges the
USA to open all such facilities to independent scrutiny. All detainees
should have access to the courts and should be treated humanely.
These are basic principles that cannot be overridden even in time
of war or national emergency.
7 November 2006
4 The conflict is deemed to have ended with the conclusion
of the Emergency Loya Jirga and the establishment of a Transitional
Authority on 19 June 2002. Back
5
Geneva Convention III, Art 4 uses the term "persons [belonging
to certain categories]... who have fallen into the power of the
enemy". Back
6
Geneva Convention III, Art 5. Back
7
Geneva Convention III, Part III, Part IV Section II. Back
8
Geneva Convention IV, Art 43. Back
9
Geneva Convention IV, Art 133. Back
10
The current conflict in Afghanistan is a non-international armed
conflict, to which an international legal framework applies that
is different from an international one, mainly Article 3 Common
to the Geneva Conventions, rules of customary international law
and international human rights law. Back
11
Under rules of customary international law applicable to non-international
armed conflict, comprising also of relevant rules of international
law human rights law. See, for instance, The International Committee
of the Red Cross (Jean-Marie Henckaerts and Louise Doswald-Beck,
eds), Customary International Humanitarian Law, Vol 1: Rules (Cambridge:
Cambridge University Press, 2005), pp 347-352. Back
12
See for instance International Covenant on Civil and Political
Rights, Articles 9(3) and 9(4). Back
13
Al Odah et al v USA et al. Brief for the Guanta«namo
detainees. In the US Court of Appeals for the District of Columbia
Circuit, 27 May 2005. Abdullah al-Kandari was transferred from
Guanta«namo to Kuwait on 14 September 2006 nearly five years
after he had been taken into custody. Back
14
In re Guantanamo detainee cases, Memorandum Opinion Declining
in Part and Granting in Part Respondents' Motion to Dismiss or
Grant for Judgment as a Matter of Law in the US District Court
for the District of Columbia, 31 January 2005, http://www.dcd.uscourts.gov/opinions/2005/Green/2002
CV-299-8:57:59-3-2-2005-a.pdf Back
15
"Consideration of Reports Submitted by States Parties Under
Article 19 of the Convention, Conclusions and recommendations
of the Committee against Torture", UN Committee against Torture,
36th session 1-19 May 2006, CAT/C/USA/CO/2, 25 July 2006. Back
16
Ibid. Back
17
Summarized witness statement, 28 February 2005, page 3771 of http://www.aclu.org/torturefoia/legaldocuments/july_docs/(M)%20SCHMIDT-FURLOW%20DEFERRED.pdf Back
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