Friday, April 07, 2006

Situation of Detainees in Bahía de Guantánamo

United States Navy have used Bahía de Guantánamo as a Naval Base for more than a century. US controls the land on both sides of the southern part of Bahía de Guantánamo under a lease set up in the wake of the 1898. It shoub ne noted that The Cuban government denounces the lease on grounds that article 52 of the Vienna Convention on the Law of the Treaties annnuls treaties agrered uponSince 2001, the naval base contains a detainment camp for militant combatants collected from Afghanistan and later from Iraq

On 15 February 2005 four UN Special Rapporteurs (the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health) and the Chairperson of the Working Group on Arbitrary Detention iisued a reprot on Situation of detainees at Guantánamo Bay

The report on the situation of the detainees held at the US Naval Base at Guantanamo Bay, Cuba, was issued by In this joint report, each Rapporteur examines the situation of the detainees as it relates to the Rapporteur’s mandate.

The report is based on the replies of the US government, interviews with former detainees, and responses from lawyers representing individuals currently detained at Guantánamo Bay. According to the US government, approximately 520 detainees were held in Guantánamo Bay as of October 2005. As of December 2005, nine detainees have been referred to a military commission.

The report lays out the obligations of the United States under international law. Citing the case of the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the report finds that the International Covenant on Civil and Political Rights extends to Guantánamo Bay. The report moreover reiterates the complementary application of International Human Rights Law to International Humanitarian Law.

The Chairman of the Working Group on Arbitrary Detention and the Special Rapporteur on the independence of judges and lawyers expressed their concerns regarding the situation of the detainees. In their view, the “legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies.”

The report also criticizes that investigations into the allegations of torture have not been conducted through an impartial process. This, according to the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, constitutes a violation of Articles 12 and 13 of the Convention against torture

In its conclusions, the reports finds that the individuals detained at Guantánamo Bay “are entitled to challenge the legality of their detention before a judicial body in accordance with Article 9 of the ICCPR” and that “[t]his right is currently being violated.” The conclusions specify that the interrogation techniques authorized by the Department of Defense amount to “degrading treatment in violation of Article 7 of ICCPR and Article 16 of the Convention against Torture.” The recommendations of the report state that “the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial…or release them without further delay.” Moreover, the recommendations provide that the “United States Government should close the Guantánamo Bay detention facilities without further delay.”
On 10 March 2006 the United States issued a reply to the Report of the Five UNCHR Special Rapporteurs on Detainees Gunantamo Bay. In that reply, the United States declares that it “profoundly objects to the Report both in terms of process and of substance and underscores that the Report’s factual and legal assertions are inaccurate and flawed.”

The United States asserts that it “offered the Special Rapporteurs unprecedented access to Guantanamo.” The United States also criticizes that the report asserted “the existence of jus cogens or non-derogable norms without citation of binding authority in support”, and that it “relied on international human rights instruments, declarations, standards, and general comments of treaty bodies without serious analysis of whether the instruments by the terms apply extraterritorially; whether the United States is a State Party- or has filed reservations or understandings – to the instrument.” The Special Rapporteurs’ view that the ICCPR is applicable to the detainees in Guantanamo Bay is also contested. According to the United States, the ICCPR is “by its express terms and clear negotiating record” only applicable within the signatories’ territory. The United States further declares that it is “engaged in a continuing armed conflict against Al Qaida, the Taliban and other terrorist organizations supporting them.” Therefore, the United States finds the law of armed conflict to govern “the conduct of armed conflict and related detention operations,” and also states that these rules permit lawful and unlawful combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.”

What would you say about the report and its US reply? Does US position have any legal backing in international human rights law or its domestic law ?

UN report is available at:
http://www.ohchr.org/english/

US reply is available at: http://www.asil.org/pdfs/ilib0603212.pdf

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