UN states the obvious about Gitmo

From a report made yesterday by five investigators to the Commission on Human Rights (PDF from the BBC):

Many of the detainees held at Guantánamo Bay were captured in places where there was -- at the time of their arrest -- no armed conflict involving the United States. The case of the six men of Algerian origin detained in Bosnia and Herzegovina in October 2001 is a well-known and well-documented example, but also numerous other detainees have been arrested under similar circumstances where international humanitarian law did not apply. The legal provision allowing the United States to hold belligerents without charges or access to counsel for the duration of hostilities can therefore not be invoked to justify their detention.

This does not of course mean that none of the persons held at Guantánamo Bay should have been deprived of their liberty. Indeed, international obligations regarding the struggle against terrorism might make the apprehension and detention of some of these persons a duty for all States. Such deprivation of liberty is, however, governed by human rights law, and specifically articles 9 and 14 of ICCPR [the International Covenant on Civil and Political Rights, to which the USA is a party]. This includes the right to challenge the legality of detention before a court in proceedings affording fundamental due process rights, such as guarantees of independence and impartiality, the right to be informed of the reasons for arrest, the right to be informed about the evidence underlying these reasons, the right to assistance by counsel and the right to a trial within a reasonable time or to release. Any person deprived of his or her liberty must enjoy continued and effective access to habeas corpus proceedings, and any limitations to this right should be viewed with utmost concern.

Let me summarize:

(a) some of the people held by the US were not captured during combat at all, yet have spent years in prison because of the legal fiction that they were;

(b) captured combatants may be held for the duration of hostilities in order to keep them from fighting, but non-combatants have a right under treaty [as well as the United States Constitution] not to be imprisoned without a fair trial;

(c) therefore some of the Guantánamo Bay detentions are illegal under international law [and the Constitution]. Seems a simple enough deduction.

Please see also the report's discussion of abusive treatment, culminating in this:

The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention. Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.

In other words, torture has been reported by some detainees, but even if these stories are discounted, the conditions at Guantánamo Bay are illegal because they amount to "degrading punishment."

To be fair, of course, these UN investigators declined to visit the prison because the US government refused to allow them to interview prisoners in private.

| Posted by Wilson at 10:32 Central | TrackBack
| Report submitted to the Power Desk