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Economic and Social Council (Commission on Human Rights): Situation of Detainees at Guántanamo Bay*
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2006
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This text was reproduced and reformatted from the text appearing at the Office of the United Nations High Commissioner for Human Rights (visited April 04, 2006) <http://www.ohchr.Org/english/bodies/chr/docs/62chr/E.CN.4.2006.120.pdf>
References
Endnotes
1 These interviews were carried out with the consent of the Governments concerned (France, Spain and the UK). Similar request have been addressed by the five mandate holders to Afghanistan, Morocco and Pakistan in order to meet with former detainees currently residing in the three respective countries. No response has been received so far.
2 Response of the United States of America, dated October 21, 2005 to the inquiry of the Special Rapporteurs dated 8 August 2005 pertaining to detainees at Guantanamo Bay, p. 52. For more updated information, see the fact sheets of the US Department of Defense (available at <http://www.defenselink.mil/news/Aug2005/d20050831sheet.pdf>), according to which, as of 31 August 2005, there were four “cases where detainees are charged and the case is underway”, with another eight subject to the president's jurisdiction under his November 2001 military order. According to further fact sheets posted by the Department of Defense on its web site, in December 2005 five further detainees had “charges … referred to a military commission”, bringing the total of detainees referred to a military commission to nine as of the end of December 2005.
3 Declaration annexed to Security Council resolution 1456 (2003). Relevant General Assembly resolutions on this issue are 57/219, 58/187 and 59/191.The most recent resolution adopted by the Security Council is 1624 (2005), in which the Security Council reiterated the importance of upholding the rule of law and international human rights law while countering terrorism.
4 Statement delivered by the Secretary-General at the Special Meeting of the Counter-Terrorism Committee with Regional Organizations, New York, 6 March 2003, <http://www.un.org/apps/sg/sgstats.asp?nid=275>.
5 Speech delivered by the United Nations High Commissioner for Human Rights at the Biennial Conference of the International Commission of Jurists (Berlin, 27 August 2004), <http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet >.
6 See Commission on Human Rights resolutions 2003/68,2004/ 87 and 2005/80.
7 The United States has entered reservations, declarations and understandings with regard to a number of provisions of these treaties. Most relevant are the reservations to article 7 of ICCPR and article 16 of the Convention against Torture, as noted in paragraph 45.
8 “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” Remarks of Michael J. Matheson, Deputy Legal Adviser, United States Department of State, in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: “A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” The American University Journal of International Law and Policy, Vol. 2, No. 2 (Fall 1987), pp. 419-431.
9 Human Rights Committee, General Comment No. 31 (2004), CCPR/C/21/Rev.l/Add.l3, para. 10.
10 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. Reports 2004 (9 July 2004).
11 Ibid, para. 111. The ICJ reached the same conclusion with regard to the applicability of the Convention on the Rights of the Child (para. 113). As far as the Convention against Torture is concerned, articles 2(1) and 16(1) refer to each State party's obligation to prevent acts of torture “in any territory under its jurisdiction”. Accordingly, the territorial applicability of the Convention to United States activities at Guantanamo Bay is even less disputable than the territorial applicability of ICCPR, which refers (article 2(1)) to “all individuals within its territory and subject to its jurisdiction”.
12 Human Rights Committee, General Comment No. 29 (2001), CCPR/C/21/Rev.1/Add.11, para. 3.
13 Ibid.
14 Ibid, para. 15-16.
15 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 240 (8 July 1996), para. 25.
16 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. Reports 2004 (9 July 2004), para 106.
17 The Commission on Human Rights resolutions governing the Working Group mandate it “to investigate cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards” (1991/42,1997/50 and 2003/31). In its report to the Commission on Human Rights at its fifty-ninth session, the Working Group gave a Legal Opinion re-garding deprivation of liberty of persons detained at Guanta-namo Bay (E/CN.4/2003/8, paras. 61 to 64). On 8 May 2003, the Working Group issued its Opinion No. 5/2003 concerning the situation of four men held at Guantanamo Bay, finding that it constituted arbitrary detention. The Working Group 25 also reflected developments in United States litigation relating to Guantanamo Bay in its report to the Commission in 2005 26 (E/CN.4/2005/6, para. 64).
18 This Military Order has been complemented by several subsequent Military Commissions Orders, i. a. Military Commission Order No. 1 of 21 March 2002, which was superseded on 31 August 2005 by the Revised Military Commission Order No. 1, Military Commission Order No. 2 of 21 June 2003 (subsequently revoked), Military Commission Order No. 3 of 5 28 February 2004 (superseded by Military Commission Order No. 3 of 21 September 2005), Military Commission Order No. 4 of 30 January 2004 (subsequently revoked), Military Commission Order No. 5 of 15 March 2004, and Military Commission Order No. 6 of 26 March 2004: reference to the “Military Order” in the text should be read as referring to the series of Military Commissions Orders.
19 Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 3.
20 See Official Statement of the International Committee of the Red Cross (ICRC) dated 21 July 2005 regarding “The relevance of IHL in the context of terrorism” (available at <http://www.icrc.org/web/eng/siteengO.nsf/html/terrorism-30ihl-210705?OpenDocument>): “International humanitarian law (the law of armed conflict) recognizes two categories of armed conflict: international and non-international. International armed conflict inVolves the use of armed force by one State against another. Non-international armed conflict inVolves hostilities between government armed forces and organized armed groups or between such groups within a state. When and where the “global war on terror” manifests itself in either of these forms of armed conflict, international humanitarian law applies, as do aspects of international human rights and domestic law. For example, the armed hostilities that started in Afghanistan in October 2001 or in Iraq in March 2003 are armed conflicts. When armed violence is used outside the context of an armed conflict in the legal sense or when a person suspected of terrorist activities is not detained in connection with any armed conflict, humanitarian law does not apply. Instead, domestic laws, as well as international criminal law and human rights govern. […] The designation “global war on terror” does not extend the applicability of humanitarian law to all events included in this notion, but only to those which inVolve armed conflict.“
21 Third Geneva Convention relative to the Treatment of Prisoners of War, art. 118, and Fourth Geneva Convention relative to the Treatment of Civilian Persons, art. 133(1).
22 Third Geneva Convention, art. 119 (5), and Fourth Geneva Convention, art. 133.
23 Third Geneva Convention, art. 17(3), and Fourth Geneva Convention, art. 31.
24 For the circumstances of the arrest and transfer to Guantanamo Bay of the six men see the decision of the Human Rights Chamber for Bosnia and Herzegovina of 11 October 2002 in case no. CH/02/8679 et al., Boudellaa & Others v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, available at www.hrc.ba See also the report of Mr. Amir Pilov of 10 August 2004 on his visit to Guantanamo Bay from 26 to 29 July 2004 as official representative of Bosnia and Herzegovina in accordance with the respective order of the Human Rights Chamber.
25 See, Rasul v. Bush, 542 U.S. 446, 124 S.Ct. 2686 (2004).
26 See US District Court for the District of Columbia, decision of 31 January 2005 In re Guantanamo Detainees Cases, 355 F. Supp. 2d 443, at 468-478.
27 Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 47.
28 The CSRT and ARB rules do not provide detainees with the right to receive legal assistance, but provide instead for a “personal representative” with no legal training required and no duty of confidentiality whatsoever. See also US District Court for the district of Columbia, decision of 31 January 2005 In re Guantanamo Detainees Cases, 355 F. Supp. 2d 443, at 468-478, where the District Court says (at 472) that “there is no confidential relationship between the detainee and the Personal Representative, and the Personal Representative is obligated to disclose to the tribunal any relevant inculpatory information he obtains from the detainee. Id. Consequently, there is inherent risk and little corresponding benefit should the detainee decide to use the services of the Personal Representative.
29 See supra note 2.
30 According to the information available, it appears that already in 2003 the United States Department of Defense determined that the 15 Uighurs did not present a threat to the security of the United States. In 2004, the Department of Defense determined that the 15 Uighurs do not have any intelligence value for the United States and should be released. According to the information provided by US lawyers acting on behalf of the Uighur detainees, in March 2005 the CSRT decided that six of the Uighurs were not “enemy combatants”. The Response of the United States to the Special Rapporteurs states that “arrangements are underway” for the release of fifteen detainees determined not to be “enemy combatants” by the CSRT by March 2005 (Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, p. 47), which could be an indication that in fact all fifteen Uighurs have been found by the CSRT not to be “enemy combatants”. However, the United States neither intend to return the fifteen prisoners to the People's Republic of China, where it is feared that they would be at risk of being killed, tortured or ill-treated, nor allow them to settle in the US. The existence of prisoners whose release poses problems because they reasonably fear repatriation is acknowledged in the Response of the United States (p. 50). In the habeas corpus case brought by two of the Uighurs before the United States District Court for the District of Columbia (Qassim v. Bush), the US Government first failed to inform the court and the detainees’ attorneys that the habeas corpus petitioners had been found not to be “enemy combat-ants”. It then argued that it is continuing their detention on the basis of “the Executive's necessary power to wind up war time detentions in an orderly fashion” (Qassim v. Bush, Opinion Memorandum of 22 December 2005, 2005 U.S. Dist. LEXIS 34618, para. 4). The District Court concluded that “[t]he detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.” (Ibid., para. 8) Despite this finding, the District Court concluded that it had no relief to offer, i.e. it could not order their release (Ibid., para. 16).
31 Detainee Treatment Act of 2005, included in the Department of Defense Appropriations Act 2006, Section 1005.
32 Ibid., Section 1005 (2) (A), (B), and (C).
33 See also article 9 (4):” Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.“
34 Principle No.5 of the Basic Principles on the independence of the Judiciary, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
35 Human Rights Committee, General Comment No. 13 (1984), para. 4, and Kurbanovv. Tajikistan, Communication no. 1096/ 2002,Views of the Human Rights Committee of 6 November 2002, para. 7.6.
36 General Comment No. 13, supra note 35, para. 4.
37 Principle 10, Basic Principles on the Independence of the Judiciary (see supra note 34).
38 See supra note 8.
39 ’ General Comment No. 29, supra note 12, paras 10-11: “States parties may in no circumstance invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence”.
40 United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
41 Principle 1 and 5 as well as 16 and 21 of the Basic Principles on the Role of Lawyers (see note supra 40).
42 See Rule 100 of the List of Customary Rules of International Humanitarian Law, published as an annex to the ICRC Study on customary international law: “No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees.” <http://www.icrc.org/Web/eng/siteeng.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf>
43 General Comment No. 13, supra note 13, para. 10.
44 See supra note 2.
45 See, e.g., CCPR/CO/77/EST (Estonia), para. 8; CCPR/CO/ 76/EGY (Egypt), para. 16; CCPR/CO/75/YEM (Yemen), para. 18; CCPR/CO/75/NZL (New Zealand), para. 11; CCPR/75/ MDA (Moldova), para. 8; CCPR/CO/74/SWE (Sweden), para. 12; CCPR/CO/73/UK (United Kingdom), para. 6; CAT/C/ XXIX/Misc.4 (Egypt), para. 4; CAT/C/CR/28/6 (Sweden), para. 6 (b).
46 Articles 6 (b) and (c) of the 1945 Charter of the Nuremberg International Military Tribunal; Principle IV (b) and (c) of the Principles of International Law Recognized in the Charter of the Nrnberg Tribunal and the Judgment of the Tribunal; Articles 2 (b) and 5 (f) of the 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia; Articles 7(1) (f) and 8 (2) (a) (ii) of the 1998 Rome Statute for the International Criminal Court.
47 See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1,183 and Vol. 1,286. Reservations to ICCPR at <http://www.ohchr.org/english/countries/ratification/4_l.htm> “(3) That the United States considers itself bound by article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Reservations to ICCPR at <http://www.ohchr.org/english/countries/ratification/9.htm>#reservations (1) That the United States considers itself bound by the obligation under article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment', only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1, 183 and Vol.1, 286.
48 Conclusions and Recommendations of the Committee against Torture : United States of America. 15/05/2000. A/55/ 44,paras.175-180. ‘179. The Committee expresses its concern about: (a) The failure of the State party to enact a federal crime of torture in terms consistent with article 1 of the Convention; (b) The reservation lodged to article 16, in violation of the Convention, the effect of which is to limit the application of the Convention;[…] 180. The Committee recommends that the State party: (a) Although it has taken many measures to ensure compliance with the provisions of the Convention, also enact a federal crime of torture in terms consistent with article 1 of the Convention and withdraw its reservations, interpretations and understandings relating to the Convention;’ and Concluding Observations of the Human Rights Committee: United States of America. 03/10/95.CCPR/C/79/Add.5O; hi 50/40,paras.266-304. ‘279. The Committee regrets the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant. […] 292. The Committee recommends that the State party review its reservations, declarations and understandings with a view to withdrawing them, in particular reservations to article 6, paragraph 5, and article 7 of the Covenant.'
49 E.g. US President in a February 2002 memorandum reiterated the standard of “humane treatment” (see Church report p. 3); also: During a visit to Panama on 7 November 2005 President Bush said: “Our country is at war, and our government has the obligation to protect the American people.[…] And we are aggressively doing that. […] Anything we do to that effort, to that end, in this effort,’ any activity we conduct, is within the law. We do not torture.” See at: <http://www.whitehouse.gov/news/releases/2005/l1/20051107.html> (accessed on 8 De-cember 2005), but for more ambiguous statements see also Amnesty International, “United States of America. Guanta-namo and beyond: The continuing pursuit of unchecked executive power,” AI Index: AMR 51/063/2005 (May 13, 2005) and Human Rights Watch, Getting Away with torture? Command Responsibility for the U.S. Abuse of Detainees, Vol. 17, No. 1(G) (April 2005).
50 “For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340 2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed on Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture. […] Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.“
51 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”.
53 “Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17 months, he struggled to get answers from his chain of command to a basic question: What standards apply to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the terrorists but for the good of our soldiers and our country. […] The advantage of setting a standard for interrogation based on the field manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders to judge advocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted, in what environments, with which DOD detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's top minds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so? Confusion about the rules results in abuses in the field. We need a clear simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is not just my opinion but that of many more distinguished military minds than mine.” To be found at: <http://thomas.loc.gov/cgi-bin/query/D7rl09:1:./temp/∼rlO99i99u4:bO>.
54 See also Press Briefing with National Security Advisor Stephen Hadley on the McCain Amendment of 15 December2005 at: <http://www.whitehouse.gov/news/releases/2005/12/20051215-5.html> (last accessed on 21 December 2005): “As you know, our policy has been not to use cruel, inhuman or degrading treatment at home or abroad. That has been our policy. The legislative agreement that we've worked out with Senator McCain now makes that a matter of law, not just policy. And it makes it a matter of law that applies worldwide, at home and abroad.“
55 Jerald Phifer to Commander of Joint Task Force 170, memo randum of 11 October 2002,, “Request for Approval of Counter-resistance Techniques,” which was attached to William J. Haynes II to Secretary of Defense, memorandum of 27 November 2002, “Counter-resistance Techniques,“ and approved by Secretary Rumsfeld on 2 December 2002 <http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdfx>
56 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”.
57 Ibid., p. 1. See also overview given by the Executive Summary of the Church report (“Executive Summary,” U.S. Department of Defense, available to the public since March 2005, <http:// www.defenselink.mil/news/Mar2005/d20050310exe.pdf>
58 The technique of using dogs, as confirmed in various inter views with ex-Guantanamo Bay detainees, was explicitly au thorised as part of the “First Special Interrogation Plan” (p. 13 and 14) see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). See also point 12” “Using detainees individual phobias (such as fear of dogs) to induce stress” of the Jerald Phifer to Commander of Joint Task Force 170, memorandum, “Request for Approval of Counter-resis tance Techniques,” October 11, 2002, which was attached to William J. Haynes II to Secretary of Defense, memorandum, “Counter-resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeld on December 2, 2002 avail able at <http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdfx>
59 Dept. of Defense, Investigation into FBI Allegations of De tainee Abuse at Guantanamo Bay, Cuba Detention Facility, Army Regulation 15-6: Final Report (Apr. 1, 2005; amended Jun. 9, 2005; published Jul. 14, 2005); also: “What were the measures most difficult to cope with in your view? - Sleep deprivation. They were forcing us to change the cells, the boxes we were held in, for every 15 minutes. And that was going on for three to four months. Every 15 minutes we were supposed to change. No sleep, nothing. So sleep deprivation.“ Interview with Airat Vakhitov on 18 November 2005 in Lon don.
60 Cases of Moazzam Begg, Rustam Akhmiarov, Airat Vakhi tov — interviews of 18 November 2005.
61 Resolution 1433 of 26 April 2005, para. 7 ii.
62 Opinions of the Lords of Appeal for Judgment in the case A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) of 8 December 2005. Session 2005-06- UKHL 71para. 126.
63 “The ICRC feels that interrogators have too much control over the basic needs of detainees. That the interrogators attempt to control the detainees through use of isolation. Mr. Cassard stated that the interrogators have total control of the level of isolation in which the detainees were kept; the level of comfort items detainees can receive; and also the access of basic needs to the detainees.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9. 2003).
64 Ibid.
65 “Check into lowering the lights at night to help with sleeping.“ DoD, General observations and meeting notes in memo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observations from ICRC concerning treatment of de tainees (Jan. 21, 2002).
66 Detainees feel some rules, i.e. no talking, cause higher stress, and feel talking would help to release stress.” DoD, General observations and meeting notes in memo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observa tions from ICRC concerning treatment of detainees (Jan. 21, 2002). See also: “The detainees request that the “no talking rule” be lifted. 22 Jan 02: Approved in part as of that date. Detainees may carry on normal conversations.” DoD, memo from Staff Judge Advocate to file, Concerns voiced by the International Committee of the Red Cross (ICRC) on behalf of the detainees (Jan. 24, 2002).
67 See also Chapter IV of this report.
68 See also Chapter V(l) of this report.
69 “The ICRC concern is that the caged cells plus the maximum- security regime exerts too much pressure on detainees.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003); see also: “Mr. Cassard continued with his report by stating that the Maximum Security Unit (MSU) has not changed since their last visit. According to Mr. Cassard, detainees are in MSU for 30 days, released for a short period of time, and then put back into MSU for another 30 days. Mr. Cassard stated that this type of punishment is harsh and that some detainees are put in MSU at the request of interrogators.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO- SJA to Record (Oct. 9, 2003)
70 See e.g. interview with Moazzam Begg of 18 November 2005.
71 Human Rights Committee, General Comment No. 20 (1992), para 6; and Polay Campos v. Peru, Communication no. 577/ 1994, Views of the Human Rights Committee of 6 November 1997, para 8.4. On the extensive case law of the Human Rights Committee on conditions of detention see also Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, 2nd revised edition, N.P.Engel Publisher, Kehl/ Strasbourg/Arlington 2005, at pages 172 et seq. and 244 et seq.
72 See section 2 about authorized interrogation techniques; see also picture on cover of Michael Ratner and Ellen Ray ^'Guan tanamo. What the World Should Know.” June 2004.
73 “They are being force-fed through the nose. The force-feeding happens in an abusive fashion as the tubes are rammed up their noses, then taken out again and rammed in again until they bleed. For a while tubes were used that were thicker than a finger because the smaller tubes did not provide the detainees with enough food. The tubes caused the detainees to gag and often they would vomit blood. The force-feeding happens twice daily with the tubes inserted and removed every time. Not all of the detainees on hunger strike are in hospital but a number of them are in their cells, where a nurse comes and inserts the tubes there.” Accounts given by Attorney Julia Tarver (28 October 2005). On the qualification of certain methods of force-feeding as amounting to torture see, e.g., the judgment of the European Court of Human Rights in Nevmerzhitsky v. Ukraine (Appl. No. 54825/00), para. 98.
74 See also: <http://www.thememoryhole.org/mil/gitmo-pows.htm>.
75 See Human Rights Watch, Getting Away with Torture ? Report, available at <www.hrw.org/reports/2005/us0405/>) page. 75 and footnote 306 citing Paisley Dodds, “Guantanamo Tapes Show Teams Punching, Stripping Prisoners,” Associated Press, February 1,2005.
76 “Recently-revealed videotapes of so-called “Immediate Reac tion Forces” (or “Extreme Reaction Force” (ERF)) reportedly show guards punching some detainees, a guard kneeing a detainee in the head, tying one to a gurney for questioning and forcing a dozen to strip from the waist down.” Human Rights Watch, Getting Away with Torture? Command Respon sibility for the U.S. Abuse of Detainees, Vol. 17, No. 1(G) (April 2005), pag. 75 citing Paisley Dodds, “Guantanamo Tapes Show Teams Punching, Stripping Prisoners,” Associ ated Press, February 1, 2005. or: “[I]f you said you didn't want to go to interrogation you would be forcibly taken out of the cell by the [Initial Reaction Force] team. You would be pepper-sprayed in the face which would knock you to the floor as you couldn't breathe or see and your eyes would be subject to burning pain. Five of them would come in with a shield and smack you and knock you down and jump on you, hold you down and put the chains on you. And then you would be taken outside where there would already be a person with clippers who would forcibly shave your hair and beard. Interrogators gave the order for that to be done; the only way in which this would be triggered would be if you were in some way resisting interrogation, in some way showing that you didn't want to be interrogated. Or if during interrogation you were non-cooperative then it could happen as well.” Cen ter for Constitutional Rights, Statement of Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, “Detention in Afghanistan and Gu antanamo Bay” (Aug. 4, 2004), para290, available at <http:// www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatement FINAL23julyO4.pdf> See also the Al Dossari incident re ported by several NGOs and in the book “Inside the Wire“ by Erik Saar, a former Guantanamo Bay military intelligence interpreter.
77 “He stayed there for 13 months in solitary confinement in an underground cell. He was routinely beaten and received only rotten food and was prevented from using the toilet. He was then temporarily transferred to Ta'iz prison, where he was also not provided food and had to rely on his family to feed him. In June 2005 he was transferred back to Sana'a prison, where he is still held without being aware of any charges.“ Allegation based on Declaration of Attorney Tina M. Foster of 17 November 2005.
78 The same assessment was made by the Council of Europe's Parliamentary Assembly, which found that “the United States has, by practicing “rendition” (removal of persons to other countries, without judicial supervision, for purposes such as interrogation or detention), allowed detainees to be subjected to torture and to cruel, inhuman or degrading treatment, in violation of the prohibition on non-refoulement” Resolution 1433 of 26 April 2005, para. 7 vii.
79 See also the response of the US Government to the question naire of 21 October 2005, which indicated that allegations were investigated by officials of the Department of Defense.
80 See also: Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). As can be seen from it, practically no action was taken in response to acts of inhuman or degrading treatment even if the practice was unauthorized.
81 E.g. a leaked FBI e-mail stated “If this detainee is ever released or his story made public in any way, DOD interrogators will not be held accountable because these torture techniques were done by the “FBI” interrogators. Email from Unknown to G. Bald, et.al, Re.: Impersonating FBI at GTMO (Dec. 5, 2003), available at <http://www.aclu.org/torturefoia/released/FBI_3977.pdf>.
82 European Parliament resolution on Guantanam. P 6_TA(2004)0050. At: <http://www.europarl.eu.int/omk/sipade3?Pubref=-//Ep//Nonsgml+TA+P6-TA-2004-0050+0+Doc+Word+V0//EN&L=EN&LEVEL=0&NAV=S&LSTDOC=Y&LSTDOC=N>.
83 Human Rights Committee, General Comment 22 (1993), CCPR/C/2 I/Rev. l/Add.4, para 8.
84 In her previous report to the General Assembly (A/60/399), the Special Rapporteur analyzed, in the context of her mandate, the international standards applicable to persons deprived of their liberty.
85 ICCPR, Art. 18(3). See similarly, Declaration on the Elimina tion of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Art. 1(3) (Nov. 25, 1981).
86 General Comment 22, supra note 83, para. 8.
87 See, inter alia, article 3 common to the four Geneva Conventions: articles 34 and 35 of the Third Geneva Convention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of Additional Protocol I and articles 4 and 5 of Additional Protocol II.
88 Techniques such as the use dogs were explicitly authorized as part of the “First Special Interrogation Plan” (p. 13 and 14) see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report).
89 A technique that the Schmidt Report, supra note 88, found to be authorized (FM 34-52) and approved by SECDEF as mild, non-injurious physical touching. The same report found the rubbing of perfume to have been authorized, as well as leaning over detainees and whispering in their ears that the situation was futile. In addition, the wiping of menstrual blood on a detainee in March 2003 was considered authorized to show the futility of the situation.
90 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”. See supra, para. 50.
91 Response of the United States of America, dated October 21, 2005 to the inquiry of the Special Rapporteurs dated 8 August 2005 pertaining to detainees at Guantanamo Bay, p. 21 et seq..
92 Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
93 The Convention of the Rights of the Child defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. CRC, article 1. Three juveniles, under the age of 16 years, were transferred from Guantanamo Bay to their home country in early 2004 after over one year in detention. US Department of Defense, News Release, ‘Transfer of Juvenile Detainees Completed’ accessed at <http://www.defenselink.mil/releases/2004/nr20040129O934.html> (20 December 2005); CNN World, “U.S. Frees Teens at Guantanamo Bay” (29 January 2004). It is unknown how many juveniles remain in Guantanamo Bay. Omar Ahmed Khadr, a Canadian, who was fifteen years old at the time of his arrest and his transfer to Guantanamo Bay in 2002, remains in Guantanamo Bay today. Defence Counsel Questionnaires.
94 Vienna Convention on the Law of Treaties, article 18. Although the United States has not ratified the Vienna Convention, it is generally recognized as a restatement of previous law.
95 Constitution of the World Health Organization, preamble setting forth principles accepted by Contracting Parties.
96 Commission on Human Rights res. 2005/24, para 20(c).
97 Ibid, para 7.
98 Ibid, para 5.
99 Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), E/C. 12/2000/4, para. 42.
100 Ibid, para. 5.
101 See United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955 by the First United Nations Congress on the Prevention of Crime and the Treat ment of Offenders, A/CONF/611, annex I, E.S.C. res. 663C. 24 UN ESCOR Supp. (No.l) at 11, E/3048 (1957), amended E.S.C. res. 2067, 62 UN ESCOR Supp. (No.l) at 35, E/5988 (1977) paras 9-22.
102 The Special Rapporteur received information from, among other sources, interviews with former detainees, family members of current detainees and lawyers representing former and current detainees.
103 US Department of Defense, Joint Task Force 170, Guantanamo Bay, Memorandum for the Record: ICRC Meeting with MG Miller on 09 Oct 03 (indicating ICRC was concerned about mental health of detainees due to pressures imposed by, among other conditions, interrogator control over detainees’ basic needs, duration of interrogations, cage type cells, isolation, restrictions on books and shaving as punishment);Neil A. Lewis, ‘Red Cross Finds Detainee Abuse in Guantanamo’ The New York Times (30 November 2004) (reporting ICRC stated that keeping detainees indefinitely without knowing their fate would lead to mental health problems); Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture (2005) pp 52-54.
104 Neil A. Lewis, supra note 103; Physicians for Human Rights.supra note 103; Tipton Report accessed at <http://www.ccrny.org/v2/reports/report.asp?ObjID=UNuPgz9pcO&Content=577> (2 December 2005); Presentations of Former Detainees, Conference: The Global Struggle Against Torture: Guantanamo Bay, Bagram and Beyond, hosted by Reprieve and Amnesty International on London, UK (19-21 November 2005).
105 Physicians for Human Rights, supra note 103, pp 52-53.
106 Ibid at 50.
107 E/CN.4/2003/58, para 95.
108 A/60/348, para. 9
109 Article 7(2). A commentator has described the detention facilities at Guantanamo Bay as an experiment. Jane Meyer, “The Experiment”, The New Yorker (11 and 18 July, 2005).
110 Human Rights Committee, General Comment No. 21 (1992, replaces General Comment No. 9 concerning humane treatment of persons deprived of liberty). State parties report to both the Human Rights Committee and the Committee against Torture on the implementation of international standards for medical ethics. See, e.g., the fourth periodic report of Uruguay to the Human Rights Committee (CCPR/C/95/Add.9, paras 65-69) and the second periodic report of Algeria (CAT/C/25 ADD.8, para 6).
111 The World Medical Association is an independent confederaion of professional associations, representing approximately 80 national medical associations.
112 These principles are consistent with medical ethics applicable under international humanitarian law. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, article 16; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, article 10.
113 International Council of Nurses, “Nurses Role in the Care of Prisoners and Detainees” adopted 1998.
114 Ibid.
115 Office of the Surgeon General Army, “Final Report: Assessment of the Detainee Medical Operations for OEF, GTMO,and OIF (13 April 2005) (The Kiley Report); Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report).
116 See Neil A. Lewis, supra note 103 (ICRC report stated “medical files of detainees were ‘literally open’ to interrogators); G Bloche and J Marks, “Doctors and Interrogators at Guantanamo Bay” 353; 1 New England Journal of Medicine 6, 6 (7 July 2005); Interview with former detainee Rustam Akhmi- arov, London (18 November 1005).
117 The Kiley Report, supra note 115, at 1-8 (Behavioral ScienceConsultation Teams (BSCT) “consisted of physicians/psychiatrists and psychologists who directly support detainee interrogation activities“); Neil A. Lewis, supra note 103 (ICRC workers “asserted that some doctors and other medical workers at Guantanamo were participating in planning for interrogations, in what the report called “a flagrant violation of medical ethics“); The Schmidt Report, supra 115, at 17 (medical records indicated monitoring of body temperature of detainee being exposed to extreme cold); G Bloche and J Marks, supra note 116.
118 M Sullivan and J Colangelo-Bryan, “Guantanamo Bay Detainee Statements: Jum'ah Mohammed AbdulLatif Al Dossari, Isa Ali Abdulla Al Murbati, Abdullah Al Noaimi and Adel Kamel Abdulla Haji” (May 2005) at 16 (statement of Mr. Al Noaimi);); Interviews with former detainees Rustam Akhmiarov and Airat Vakhitov, London (18 November 2005); Defence Counsel Questionnaires (reporting non-consensual drugging, including injections, and force-feeding through nasal tubes, as well as participation of health professionals in monitoring health for interrogations).
119 See Neil A. Lewis, supra note 103 (quoting ICRC report).
120 US Department of Defence, Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States (3 June 2005).
121 The Kiley Report, supra note 115, 1-8.
122 They have included, among others, subjecting detainees to sleep deprivation, twenty-hour interrogations day after day, months of isolation, loud music and strobe lights, extremes of heat and cold, short shackling to an eye-bolt on the floor, and exploiting phobias, such as instilling fear with military dogs. Interrogators also sexually and culturally humiliate detainees, subjecting them to forced nudity in front of females, forcing them to wear a woman's bra on the head and calling female relatives whores. The Schmidt Report, supra note 115. See also Chapter III (2) supra.
123 L. Rubenstein, C. Pross, F Davidoff and V. Iacopino, “Coercive US Interrogation Policies: A Challenge to Medical Ethics”, 294:12 Journal of the American Medical Association 1544, 1545 (28 Sept. 2005).
124 UN Principles, Principle 5 (emphasis added).
125 See e.g., Majid Abdulla Al-Joudi v. George W. Bush, Civil action no. 05-301, US District Court for the District of Columbia (26 October 2005); Charlie Savage, ‘Guantanamo medics accused of abusive force-feeding: Detainees’ Lawyers go before Judge’ The Boston Globe (15 October 2005); Tim Golden “Tough U.S. Steps in Hunger Strike at Camp in Cuba” The New York Times (9 February 2006).
126 See supra para 54.
127 Declaration of Tokyo, supra para. 74 and note 111; WorldMedical Association, Declaration of Malta (1992); see generally, Reyes Hernan, “Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture” extract from “Maltreatment and Torture” (1998) (providing the history and rationale for the prohibition against doctors participating inforce feeding of prisoners) accessed at ICRC, <http://\www.icrc.org/Web/Eng/siteeng0.nsf/iwpList302/92B35A6B95E0A5A3C1256B66005953D5> (8 February 2006).
128 American Medical Association, Policy H-65.997 Human Rights (AMA endorses World Medical Association's Declaration of Tokyo) accessed at American Medical Association, <http://www.ama-assn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/H-65.997.HTM> (10 February 2006).
129 “Israel: Visits to detainees on hunger strike” accessed at ICRC <http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/75579B6BB769D3B5C1256EFD0047576F> (9 February 2006)
130 See, e.g., Secretary of State for the Home Department v. Robb [1995] Fam 127 (United Kingdom); Thorv. Superior Court, 21 California Reporter 2d 357, Supreme Court of California (1993); Singletary v. Costello, 665 So.2d 1099, District Court of Appeal of Florida (1996).
131 See, generally, Mara Silver, “Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation,” 58 Stanford Law Review 631 (2005) (collecting US jurisprudence on force-feeding of detainees).
132 Response of the United States of America Dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs Dated August 8 2005 Pertaining to Detainees at Guantanamo Bay, at 19.
133 ….CESCR, General Comment No. 14, supra note 99, paras. 8, 34
134 See Cruzan v. Director Missouri Department of Health. 497 U.S. 261 , 269-70(1990)(recognizing the right to refuse treatment as the logical corollary to the doctrine of informed consent)
135 See Secretary of State for the Home Department v. Robb, supra note 130; see also Chair of the Board of Trustees of the American Medical Association, Duane M. Cady, M.D.,AMA to the Nation,AMA unconditionally condemns physician participation in torture, (20 December 2005) accessed at <http://www.ama-assn.org/ama/pub/category/15937.html> (10 February 2006) (clanfying that every patient deserves to be treated according to the same standard of care whether the patient is a civilian, a US soldier, or a detainee” and acknowledging that the AMA position on forced feeding of detainees is set forth in the Declaration of Tokyo