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Inter-American Commission on Human Rights (IACHR): Pertinent Parts of October 28, 2005 Reiteration and Further Amplification of Precautionary Measures (Detainees in Guantanamo Bay, Cuba)*
Published online by Cambridge University Press: 27 February 2017
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- Type
- Judical and Similar Proceedings
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- Copyright © American Society of International Law 2006
Footnotes
*
This document was provided to the ILM office by the IACHR.
References
Endnotes
1 U.S.S.C, Rasul et al. v. Bush, President of the United States, et al, No. 03-334 (June 28, 2004).
2 State's observations of October 19, 2005, pp. 1, 5.
3 Hamdan v. Rumsfeld, 415 F. 3d 33 (D.C. Cir. 2005).
4 In re Guantanamo Detainees, 355 F. Supp. 2d 311 (D.D.C. 2005).
5 Boumediene v. Bush, 2005 U.S. Lexis 14580 (D.C. Cir. 2005).
6 State's observations of October 19, 2005, p. 6.
7 State's observations of December 15, 2005, pp. 9-13, 19-21.
8 State's observations of October 19, 2005, p. 2.
9 State's observations of December 15, 2004, pp. 22-25.
10 State's observations of December 15, 2004, p.30.
11 State's observations of December 15, 2004, pp. 25-27.
12 State's observations of December 15, 2004, pp. 26-27.
13 State's observations of December 15, 2004, pp. 28-29.
14 State's observations of December 15, 2004, pp. 18-19.
15 State's observations of December 15, 2004, p. 27-28.
16 Petitioners’ observations of October 20, 2005, p. 1.
17 Petitioners’ observations of October 20, 2005, pp. 1-2.
18 Petitioners’ observations of October 20, 2005, pp. 4-6, citing, inter alia, Charlie Savage, Guantanamo Detainees Find Fault with Lawyers: Inmate Frustration Breeds Mistrust, Boston Globe, August 10, 2005; Declaration of Clive A. Stafford Smith, para. 104, September 12, 2005, submitted in Sadar Doe v. Bush, Petitioners’ opposition to respondents’ motion to show cause why the case should not be dismissed for lack of proper “next friend” standing and opposition to motion to stay proceedings, Civil Action No. 05-CV-1704-JR (D.D.C. September 12, 2005).
19 Petitioners’ observations of October 20, 2005, pp. 6-7, citing, inter alia, J. White and R. Wright, U.S. holding talks on return of detainees, Washington Post, August 9, 2005 (indicating that in August, the US government stated that 15 Uighurs and 2 Uzbeks could not be returned to their home countries because of fears of torture, but could be released into the custody of another government).
20 Petitioners’ observations of October 20, 2005, p. 7, citing Hamdan v. Rumsfeld, 415 F. 3d 33 (D.C. Cir. July 15, 2005); United States of America v. David M. Hicks, PO 106, Dock eting Order, September 23, 2005.
21 Petitioners’ observations of October 20, 2005, p. 2.
22 Petitioners’ observations of February 22, 2005, pp. 5-12; Petitioners’ observations of October 20, 2005, pp. 6-9, citing, inter alia, Administrative Review Board Summary, a summary of Acting Deputy Secretary of Defense Gordon England's review of board recommendations; Department of Defense, Military Commission Order No. 1, August 31, 2005.
23 Petitioners’ observations of February 22, 2005, pp. 21-24.
24 Petitioners’ observations of February 22, 2005, p. 21.
25 Petitioners’ observations of February 22, 2005, pp. 13-17, Petitioners’ observations of October 20, 2005, p. 2.
26 Petitioners’ observations of October 20, 2005, pp. 3, 13-17, citing, inter alia, World Medical Association Declaration on Hunger Strikes, adopted by the 43rd World Medical Assembly Malta, November 1991 and editorially revised at the 44th World Medical Assembly, Marbella, Spain, September 1992.
27 Petitioners’ observations of October 20, 2005, pp. 20-21, citing, inter alia, Final Report of the Independent Panel to Review DoD Detention Operations, available at <http://www.defenselink.mil/news/Aug2004/d20040824finalreport.pdf>.
28 Petitioners’ observations of October 20, 2005, pp. 18-22.
29 Petitioners’ observations of February 22, 2005, pp. 18-19.
30 Petitioners’ observations of October 20, 2005, pp. 9-13. See also State's Observations, December 15, 2004, p. 18 (indicating that as of December 14, 2004, 57 detainees had been transferred from Guantanamo to the control of other governments, including 29 to Pakistan, 7 to Russia, 5 to Morocco, 5 to Great Britain, 4 to France, 4 to Saudi Arabia, 1 to Denmark, 1 to Spain, and 1 to Sweden).
31 Petitioners’ observations of October 20, 2005, p. 10, citing Andrea Koppel and Elise Labott, U.S. Officials: Gitmo trans fer talks active, CNN, August 9, 2005, available at <http:// www.cnn.com/2005/US/08/09/detainee.release/index/html>; Robin Wright and Josh White, U.S. Holding Talks on Return of Detainees; Administration Close to Reaching Agreements with 10 Muslim Governments, Washington Post, August 9, 2005.
32 Petitioners’ observations of October 20, 2005, pp. 10-11.
33 Petitioners’ observations of October 20, 2005, p. 11, citing “Attorney General Alberto Gonzales Said the United States does not Send Detainees to Nations Allowing Torture, but Once They are Transferred, Can't Ensure Good Treatment,” Miami Herald, March 8, 2005.
34 Petitioners’ observations of October 20, 2005, p. 11, citing, inter alia, Abdah v. Bush, No. 04-1254, 2005 WL 71181 (D.D.C. March 29, 2005).
35 See, e.g., Commission's Rules of Procedure, Article 25(1) (providing that “In serious and urgent cases, and whenever necessary according to the information available, the Commis sion may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures\ to prevent irreparable harm to persons“); American Conven tion on Human Rights, Art. 63(2) (providing that “[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission“); Statute of the International Court of Justice, Article 41(1) (providing that “[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party“); European Court of Human Rights, Rules of Court (October 2005), Rule 39(1) (providing that “[t]he Chamber or, where appropriate, its President may, at the request of a party or any other person concerned, or of its own motion, indicate to the parties any interim measures which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it“); Rules of Procedure of the Human Rights Committee, adopted July 26,1989, Art. 86 (providing that “[t]he Commit tee may, prior to forwarding its views on the communication to the State part concerned, inform the State of its views whether interim measures may be desirable to avoid irrepara ble damage to the victim of the alleged violation. In so doing, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication“): Rules of Procedure of the UN Committee Against Torture, UN Doc. CAT/C/#/Rev.4, Art. 108(1) (providing that “[a]t any time after the receipt of a complaint, the Committee, a working group, or the Rapporteur(s) for new complaints and interim measures may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irrep arable damage to the victim or victims of alleged violations'’).
36 See, e.g., Case N° 12.243, Report N° 52/01, Juan Raul Garza v. United States, Annual Report of the IACHR 2000, para. 117; IACHR, Fifth Report on the Situation of Human Rights in Guatemala, Doc. OEA/Ser.L/V/II. 111 doc.21 rev. (6 April 2001), paras. 71, 72; I/A Court H.R., Case of James et al. (Trinidad and Tobago), Order of August 29,1998, “Consider ing” para. 9 (finding that executing the beneficiaries of the measures pursuant to death sentences before the Commission and the Court had an opportunity to decide petitions filed on their behalf would “create an irremediable situation incompat ible with the object and purpose of the Convention, wouldamount to a disavowal of the authority of the Commission, and would adversely affect the very essence of the Inter- American system“).
37 See, e.g., I/A Court H.R., Lysias Fleury Case, Order for Provi sional Measures dated June 7, 2003, “Considering”, paras. 6, 7 (observing that aim of provisional measures in national legal systems, in general, is to protect the rights of the parties to a dispute, ensuring that the judgment on the merits is not hindered by their actions pendente lite, but that “the aim of urgent and provisional measures, in International Human Rights Law, goes further, inasmuch as, in addition to their essentially preventive nature, they effectively protect fundamental rights, insofar as they seek to avoid irreparable damage to persons“).
38 See, e.g., ICJ, Case Concerning Avena and other Mexican Nationals (Mexico v. United States), Order for the Indication of Provisional Measures dated 5 February 2003, General List No. 128, para. 58 (stipulating that the granting of provisional 43 measures under Article 41 of the Court's Statute that requested the United States to ensure that three individuals related to the case before the Court were not executed pending the 44 final judgment in the proceedings “in no way prejudge[d] the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves“; Eur. Court H.R., Case of Ocalan v. Turkey, Judgment of March 12, 2003, para. 5 (indicating that shortly following the lodging of the application in the case, the Court requested interim measures from the Government of Turkey to ensure that proceedings against the applicant in the State Security Court complied with the due process protections under Article 6 of the European Convention and to “take all necessary steps to ensure that the death penalty is not carried out so as to enable the Court to proceed effectively with the examination of the admissibility and merits of the applicant's complaints under the Convention“); UN Human Rights Committee, K.C. (Canada), Communication No. 486/1992, UN Doc. CCPR/C/45/ 47 D/486/1992 (August 17, 1992), para. 5.2 (requesting interim measures under Article 86 of the Committee's Rules of Procedure to defer the author's extradition until the Committee had an opportunity to consider the admissibility of the issues placed before it); UN Committee Against Torture, Mafhoud Brada (France), Communciation No. 195/2002, UN Doc. 48 CAT/C/34/D/195/2002 (May 24, 2005), para. 1.2 (requesting pursuant to Article 108(9) of the Committee's Rules of Procedure that the State not deport the complainant to Algeria while his complaint was considered).
39 The Commission's authority to request precautionary measures was first included in Article 26(2) of the Commission's Regulations adopted in 1980, which provided that “[i]n urgent cases when it becomes necessary to avoid irreparable damage to persons, the Commission may request that provisional measures be taken to avoid irreparable damages in cases where the denounced facts are true.” See (Current) Regulations of the Inter-American Commission on Human Rights, approved by the Commission at its 660th Meeting, 49th Session, held on April 18, 1980, in Inter-American Commission on Human Rights, Ten Years of Activities, 1971-1981 (1982) at p. 62. The Commission began reporting on precautionary measures granted by it beginning in its 1997 Annual Report. For past summaries of precautionary measures granted by the Commission, see Annual Report of the IACHR 1997, 1998, Chapters III(2)(A), Annual Reports of the IACHR 199-2004, ChaptersIII(C)(1).
40 U.S.S.C, Rasul et al. v. Bush, President of the United States, et al, No. 03-334 (June 28, 2004).
41 Id., at 6, citing Shaughnessey v. United States ex rel. Mezei, 345 U.S. 206, 218-219 (1953) (Dissenting opinion of Justice Jackson).
42 See I/A Court H.R., Castillo Paéz Case, Judgment of November 3, 1997, Ser. C No. 34, para. 83 (holding that “[t]he purpose of habeas corpus is not only to guarantee personal liberty and humane treatment, but also to prevent disappear-ance or failure to determine the place of detention, and, ultimately, to ensure the right to life“).
43 See, e.g., I/A Court H.R., Velásquez Rodríguez Case, Judgment of 28 July 1988, Series C N° 4, paras. 172-174.
44 See IACHR, Report on Terrorism and Human Rights (2002), OAS Doc. OEA/Ser.L/V/II. 116 Doc. 5 rev. 1 corr. (22 October 2002), para. 216.
45 See, e.g., UN Convention Against Torture, Article 15 (providing that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made“).
46 See IACHR, Report on Terrorism and Human Rights (2002), para. 394, citing IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Deter-mination System, OEA/Ser.L/V/II. 106, Doc. 40 rev., February 28, 2000, paras. 25, 70.
47 IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OEA/Ser.L/V/II. 106, Doc. 40 rev., February 28, 2000, para. 154. See also IACHR, Report on Terrorism and Human Rights (2002), para. 395.
48 See, e.g., Case 11.661, Report 7/02, Manichavasgan Suresh v. Canada, Annual Report of the IACHR 2002, paras. 7, 8. See similarly UNCAT, Communication No. 195/2002 (France), UN Doc. CAT/C/34/D/195/2002, paras. 1.1, 6.1, 6.2.
49 See, e.g., Report of the UN Special Rapporteur on Torture, Theo van Boven, to the General Assembly, UN Doc. A/59/ 324 (July 2, 2002), para. 37(mentioning a number instances in which there were strong indications that diplomatic assurances were not respected and indicating that, as a baseline, in circumstances where a person would be returned to a place where torture is systematic, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to”); Report of the UN Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism, Robert K. Goldman, UN Doc. E/CN.4/ 2005/103 (February 7, 2005), paras. 56-61 (noting that unlike assurances on the use of the death penalty or trial by a military court which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel and that the mere fact that such assurances are sought is a tacit admission by the sending State that the transferred person is indeed at risk of being tortured or ill-treated, and concluding that “[g]iven the absolute obligation of States not to expose any person to the danger of torture by way of extradition, expulsion, deportation, or other transfer, diplomatic assurances should not be used to circumvent that non-refoulement obligation”). See also Human Rights Com-mittee, UN Doc. CCPR/C/SWE, para. 12.