16 February 2006
The following statement was issued today by the Chairman Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt:
Five independent investigators of the United Nations Commission on Human Rights are calling on the United States to close immediately the detention centre in Guantánamo Bay and bring all detainees before an independent and competent tribunal or release them.
The call comes in a report published today following an 18-month joint study by the experts into the situation of detainees at that United States Naval Base. The report’s findings are based on information from the United States Government, interviews conducted by the experts with former Guantánamo Bay detainees currently residing or detained in France, Spain and the United Kingdom and responses from lawyers acting on behalf of some current detainees. It also relies on information available in the public domain, including reports prepared by non-governmental organizations (NGOs), information contained in declassified official United States documents and media reports. The experts expressed regret that the Government did not allow them the opportunity to have free access to detainees in Guantanamo Bay and carry out private interviews, as provided by the terms of reference accepted by all countries they visit.
The five experts – specializing in issues related to arbitrary detention, freedom of religion, the right to health, torture and the independence of judges and lawyers – conclude that the persons held at Guantánamo Bay are entitled to challenge the legality of their detention before a judicial body and to obtain release if detention is found to lack a proper legal basis. The continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention, they state, adding that – where criminal proceedings are initiated against a detainee – the executive branch of the United States Government operates as judge, prosecutor and defence counsel in violation of various guarantees of the right to a fair trial
According to the experts, attempts by the United States Administration to redefine “torture” in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming. The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment. 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 against Torture. 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 to be treated with humanity and with respect for the inherent dignity of the human person. They add that force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved.
Among their recommendations, the experts say terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Accordingly, the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial or release them without further delay. They also call on the Government to close down the Guantánamo Bay detention centre and to refrain from any practice amounting to torture or cruel, inhuman or degrading treatment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion. The investigators also request full and unrestricted access to the Guantánamo Bay facilities, including private interviews with detainees. Consideration should also be given to trying suspected terrorists before a competent international tribunal.
Chronology leading up to report:
The five mandate holders have been following the situation of detainees held at the United States Naval Base at Guantánamo Bay since January 2002. In June 2004, the Annual Meeting of special rapporteurs/representatives, experts and chairpersons of working groups of the special procedures and the advisory services programme of the Commission on Human Rights, decided that they should continue this task as a group because the situation concerns each of their mandates.
In studying the situation, they have continuously sought the cooperation of the United States authorities. They sent a number of letters requesting the United States Government to allow them to visit Guantánamo Bay in order to gather first hand information from the prisoners themselves. By letter dated 28 October 2005, the Government of the United States of America extended an invitation for a one-day visit to three of the five mandate holders, inviting them “to visit the Department of Defense’s detention facilities [of Guantánamo Bay]”. The invitation stipulated that “the visit will not include private interviews or visits with detainees”. In their response to the Government dated 31 October 2005, the mandate holders accepted the invitation, including the short duration of the visit and the fact that only three of them were permitted access, and informed the US Government that the visit was to be carried out on 6 December 2005. However, they did not accept the exclusion of private interviews with detainees, as that would contravene the terms of reference for fact-findings missions by special procedures and undermine the purpose of an objective and fair assessment of the situation of detainees held in Guantánamo Bay. In the absence of assurances from the Government that it would comply with the terms of reference, the mandate holders decided on 18 November 2005 to cancel the visit.
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