22 December 2008
Geneva – Four independent UN experts* welcome the announcement by President-elect Barack Obama to close the Guantanamo Bay detention center and to strengthen the fight against torture. Following his election in November, Mr. Obama declared that both these undertakings are part of his efforts “to regain America’s moral stature in the world”.
The experts state that “The regime applied at Guantanamo Bay neither allowed the guilty to be condemned nor secured that the innocent be released.” It also opened the door for serious human rights violations. In addition to being illegal, detention there was ineffective in criminal procedure terms. Similar severe abuses also occur at places of secret detention. Thus, with the same emphasis, the experts urge that all secret detention places be closed and that persons detained therein be given due process.
The experts further emphasize that “moving forward with closing Guantanamo is a strong symbol that will help to repair the image of the country after damage by what was widely perceived as attempts at legitimizing the practice of torture under certain circumstances. At the same time they urge that in closing the Guantanamo Bay detention center and secret facilities, the U.S. government fully respect its international human rights obligations, notably the principle of non-refoulement that prohibits removing persons to countries where they would be at risk of torture, and not to transfer individuals to third countries for continued detention at its behest (proxy detention). The experts also stressed that those detainees facing criminal charges must be provided fair trials before courts that afford all essential judicial guarantees. They emphatically reject any proposals that Guantanamo detainees could through new legislation be subjected to administrative detention, as this would only prolong their arbitrary detention.
In this context, the experts call on third countries to facilitate the closure through their full cooperation in resettling those Guantanamo detainees that cannot be sent back to their countries of origin. The UN experts particularly welcome the recent announcement of Portugal to accept detainees and support its call to other States to follow.
The experts strongly support the commitment expressed by President-elect Obama which, in addition to restoring the moral stature of the United States in the world, will allow a dark chapter in the country’s history to be closed and to advance in the protection of human rights.
Following the tragic events of 11 September 2001, many countries adopted measures to combat terrorism. Several UN bodies, including the former Commission on Human Rights and the General Assembly, reiterated in multiple resolutions that this must be done in accordance with human rights.
In 2006, five UN Independent Experts issued a report on the Situation of detainees of Guantánamo Bay. In this report, the experts concluded that the detentions were arbitrary due to the absence of independent tribunals and the denial of the right to adequate defense and other guarantees of due process, that interrogation practices were contrary to internationally accepted standards, above all the prohibition of torture and other forms of ill-treatment and the prohibition of religious discrimination, that the indeterminate character of the length of detention amounted to inhuman treatment and that conditions of detention violated the right to health. The experts called upon the United States Government to cease these practices immediately, to provide fair trials to the detainees or release them, and to proceed to the urgent closure of the detention center.
In 2007, the UN Special Rapporteur on human rights and counter-terrorism conducted a country mission to the United States, followed by a visit to Guantanamo Bay in order to observe military commission proceedings there. His report addresses a number of issues where the 2006 Military Commissions Act and the treatment of Guantanamo detainees are incompatible with international law. It also reiterates that the detention facility be closed in compliance with international law and outlines proposals in this regard.
The United States Supreme Court has in a series of cases pronounced itself on the rights of detainees at Guantanamo Bay, thereby affirming the independence of the judiciary. In its most recent decision, the Court found the Military Commissions Act unconstitutional and granted the detainees access to the federal courts’ jurisdiction, including the right to habeas corpus.
Following his election in November, President-elect Obama publicly expressed his commitment to lead the Administration's efforts to close the Guantanamo Bay prison camp as one of his priorities.
* Special Rapporteur on the independence of judges and lawyers, Mr. Leandro Despouy
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr. Manfred Nowak
Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mr. Martin Scheinin
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Anand Grover
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