27 October 2006
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, issued the following statement today:
“On 17 October 2006 the Military Commissions Act (MCA) was signed into law, less than four months after the Supreme Court’s decision on 29 June 2006 in Hamdan v. Rumsfeld which upheld the applicability of Common Article 3 of the Geneva Conventions to all detainees during times of armed conflict, affirmed minimum standards of due process protection and struck down the special military commissions initially established by the President of the United States of America in 2001. Debate regarding this legislation was relatively brief considering its potential impact, and while there were some positive amendments made by Congress, the MCA contains a number of provisions that are incompatible with the international obligations of the United States under human rights law and humanitarian law.
Several national and international non-governmental organizations have been critical of many aspects of the MCA, which was enacted to provide a legal basis for the military commissions. I believe it is important in my capacity to publicly express my concerns on this law as the United States has taken a lead role on countering terrorism since the 11 September 2001 terrorist attacks. Therefore there is an added concern that some Governments may view certain aspects of this legislation as an example that could be followed in respect of their national counter-terrorism legislation.
A number of provisions of the MCA appear to contradict the universal and fundamental principles of fair trial standards and due process enshrined in Common Article 3 of the Geneva Conventions. One of the most serious aspects of this legislation is the power of the President to declare anyone, including US citizens, without charge as an “unlawful enemy combatant” – a term unknown in international humanitarian law – resulting in these detainees being subject to the jurisdiction of a military commission composed of commissioned military officers. At the same time, the material scope of crimes to be tried by military commissions is much broader than war crimes in the meaning of the Geneva Conventions. Further, in manifest contradiction with article 9, paragraph 4 of the International Covenant on Civil and Political Rights the MCA denies non US citizens (including legal permanent residents) in US custody the right to challenge the legality of their detention by filing a writ of habeas corpus, with retroactive effect. Another concern is the denial of the right to see exculpatory evidence if it is deemed classified information which severely impedes the right to a fair trial.
On 1 September 2005, less than a month after assuming the mandate, the Special Rapporteur wrote to the Government advising he would welcome the opportunity to cooperate with the Government by providing written comments, attending parliamentary hearings or undertaking a country visit in order to assess the conformity of existing or envisaged counter-terrorism measures with international human rights standards. Further, in July of this year, the Special Rapporteur formally requested a country visit to the United States in order to assess its counter terrorism laws and practices against international standards.
In addition to the Special Rapporteur’s numerous concerns with respect to the Military Commissions Act he also has concerns regarding a number of other issues relating to the protection of human rights in the context of countering terrorism such as the Patriot Act, immigration laws and policies, CIA secret detention centers, rendition flights, breaches of non-refoulement and the Government’s denial of extra-territorial human rights obligations. During a country visit, the Special Rapporteur would like to discuss these and other issues with relevant authorities, and he hopes that the Government will extend him an invitation in the very near future”.