A Framework for Closing Guantánamo[18]
Amnesty International
GENERAL
1. Any detention facility which is used
to hold persons beyond the protection of international human rights
and humanitarian law should be closed. The detention camp at Guantánamo
Bay Naval Base falls into this category, and in more than four
years of detention operations there, the US administration has
failed to bring the facility into compliance with international
law and standards. Secret facilities operated by the CIA should
also be immediately closed down and its secret detention program
ended permanently.
2. Closing Guantánamo or other facilities
must not result in the transfer of the human rights violations
elsewhere. All detainees in US custody must be treated in accordance
with international human rights standards, and, where relevant,
international humanitarian law. All US detention centres must
be open to appropriate external scrutiny, in particular that of
the International Committee of the Red Cross (ICRC).
3. The responsibility for finding a solution
for the detainees held in Guantánamo rests first and foremost
with the USA. The US administration created the system of detention
Guantánamo in which detainees—many of whom were transferred
to the facility unlawfully—have been held without charge
or trial, outside the framework of international law and without
the possibility of full recourse to US courts. It is therefore
the US administration's responsibility to redress this situation
in full compliance with international human rights standards.
4. All US officials in the administration
should desist from further undermining the presumption of innocence
in relation to the Guantánamo detainees. The continued
commentary on their presumed guilt applies a dangerous label to
them—dangerous to the prospect for a fair trial and dangerous
to the safety of any detainee who is released. This can only make
the USA's task of resolving the Guantánamo issue more difficult.
5. President George W. Bush should rescind
his 13 November 2001 Military Order establishing military commissions
(blocked by the Hamdan v Rumsfeld ruling) and authorizing
detention without charge or trial.
6. Those currently held in Guantánamo
should be released unless they are to be charged and tried in
accordance with international standards of fair trial.
7. No detainees who are released should
be forcibly sent to their country of origin or other countries
where they may face serious human rights abuses.
FAIR TRIALS
8. Those to be charged and tried must be
charged with a recognizable crime under law and tried before an
independent and impartial tribunal, such as a US federal court,
in full accordance with international standards of fair trial.
There should be no recourse to the death penalty.
9. Any evidence obtained under torture or
other cruel, inhuman or degrading treatment or punishment should
not be admissible. In light of the years of legal, physical and
mental abuse to which detainees held in Guantánamo have
been subjected, any trials must scrupulously respect international
standards of fairness and any sentencing take into account the
length and conditions of detention in Guantánamo or elsewhere
prior to be transported to Guantánamo.
SOLUTIONS FOR
THOSE TO
BE RELEASED
10. There must be a fair and transparent
process to assess the cases of each of the detainees who is to
be released, in order to establish whether they can return safely
to their country of origin or whether another solution ought to
be found. In all cases detainees must be individually assessed,
be properly represented by their lawyers and given a full opportunity
to express their views. Relevant international agencies, such
as the Office of the United Nations High Commissioner for Refugees
(UNHCR), could be invited to assist in this task, in line with
their respective mandates. The options before the US Administration
to deal in a manner which fully respects the rights of detainees
who are not to be tried and who therefore ought to be released
without further delay include the following:
(a) Return. The US authorities should return
released detainees to their country of origin or habitual residence
unless they are at risk of grave human rights violations, including
prolonged arbitrary detention, enforced disappearances, unfair
trial, torture or other ill-treatment, extrajudicial executions,
or the death penalty. Among those to be returned are all those
who according to the laws of war (Geneva Conventions and their
Additional Protocols) should have been recognized after their
capture as prisoners of war, and then released at the end of the
international armed conflict in Afghanistan, unless they are to
be tried for war crimes or other serious human rights abuses.
(b) Asylum in the USA. The US authorities
should provide released detainees with the opportunity to apply
for asylum in the USA if they so wish, and recognize them as refugees
if they meet the requirements of the 1951 UN Convention on Refugees
(well-founded fear of persecution on certain grounds if returned
to their country of origin). The US authorities must ensure that
any asylum applicants have access to proper legal advice and to
fair and effective procedures that are in compliance with international
refugee law and standards, including the opportunity to contact
UNHCR. Asylum applicants should not be detained except in the
most exceptional circumstances.
(c) Other forms of protection in the USA.
Persons who do not meet the criteria of the 1951 UN Convention
on Refugees, but are at risk of grave human rights abuses in the
prospective country of return and wish to remain in the USA must
receive other forms of protection and should be allowed to stay
in the USA. They should not be detained, unless it is established
that their detention is lawful, necessary and proportionate to
the objective to be achieved, in accordance with international
human rights law and standards.
(d) Transfer to third countries. The US authorities
may seek durable solutions in third countries for those who cannot
be returned to their countries of origin or habitual residence,
because they would be at risk of grave human rights abuses, and
who do not wish to remain in the USA. Any such solution should
address the protection needs of the individuals, respect their
human rights and take into account their views. All transfers
to third countries should be with the informed consent of the
individuals concerned. UNHCR should be allowed to assist in such
a process, in accordance with its mandate and policies. Released
detainees should not be subjected to any pressures and restrictions
that may compel them to choose to resettle in a third country.
Other countries should consider accepting released detainees voluntarily
seeking resettlement there, especially countries of former habitual
residence or countries where released detainees had close family
or other ties.
REPARATIONS
11. The USA has an obligation under international
law to provide prompt and adequate reparation, including restitution,
rehabilitation and fair and adequate financial compensation to
released detainees for the period spent unlawfully detained and
other violations that they may have suffered, such as torture
or other ill-treatment.[19]
The right of victims to seek reparations in the US courts must
not be limited.
TRANSPARENCY PENDING
CLOSURE
12. The US authorities should invite the
five UN experts—four Special Rapporteurs and the Chairperson
of the Working Group on Arbitrary Detention—to visit Guantánamo
without the restrictions that led them to turn down the USA's
previous invitation. There should be no restrictions on the experts'
ability to talk privately with detainees.
18 This proposed framework was first sent to President
George W Bush in June 2006. Back
19
Article 14 of the UN Convention against Torture states: "Each
State Party shall ensure in its legal system that the victim of
an act of torture obtains redress and has an enforceable right
to fair and adequate compensation, including the means for as
full rehabilitation as possible. In the event of the death of
the victim as a result of an act of torture, his dependants shall
be entitled to compensation." Those who have been subjected
to arbitrary arrest also have a right to compensation. Article
9.5 of the International Covenant on Civil and Political Rights,
which the USA ratified in 1992, states: "Anyone who has been
the victim of unlawful arrest or detention shall have an enforceable
right to compensation". Back
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