Human Rights Council: Joint statement on the report on the situation of detainees at Guantánamo Bay

21 September 2006

Mr. Chairperson, Distinguished Representatives,

It is a great honour to present to the Human Rights Council the report on the situation of detainees at Guantánamo Bay (E/CN.4/2006/120). This report is the result of a joint study conducted by the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, 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 on 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 ("right to health").

Since January 2002, my four colleagues and I have been following the situation of detainees held at the United States Naval Base at Guantánamo Bay. In June 2004, we decided to address this issue as a group and requested the United States Government to allow us to visit jointly the Guantánamo Bay detention centre. The purpose of the visit was to undertake an objective and impartial assessment of the serious allegations of torture, cruel, inhuman and degrading treatment of detainees, arbitrary detention, violations of the detainee’s right to health and freedom of religion as well as of their due process rights.

Regrettably, after prolonged negotiations, the U.S. Government extended an invitation for a one-day visit to only three of us, namely Ms. Jahangir, Ms. Zerrougui and Mr. Nowak. Furthermore, the invitation stipulated that the visit will not include private interviews or visits with detainees. We deeply regret that the US Government did not accept the standard Terms of Reference, accepted by all countries we visit and which include the ability to conduct private interviews with detainees. Indeed, it is particularly disappointing that the US Government, which has consistently declared its commitment to the principles of independence and objectivity of the fact finding mechanisms, was not in a position to accept these terms. Despite this, we decided to conduct our investigation and issue a joint report. The findings contained therein are based on information from the United States Government, interviews we conducted 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 currently detained persons. Similar requests have been addressed to Afghanistan, Morocco and Pakistan in order to meet with former detainees currently residing in the three respective countries. Afghanistan and Morocco responded favourably while to date no response has been received from Pakistan. The report also relies on information available in the public domain, including reports prepared by non-governmental organizations (NGOs) and information contained in declassified United States official documents.

In the report we conclude that the so-called "war on terror" is not an armed conflict justifying indefinite detention under international humanitarian law. Moreover, continued interrogation of the detainees is incompatible with the justification given by the Government of the United States, i.e. that international law allows them to detain so-called "enemy combatants" until the end of the armed conflict. The detainees 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. We consider that this right is currently being violated and that the continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention. We also find that in the few cases where criminal proceedings have been initiated against detainees before military commissions, the requirement of an independent tribunal is not met. The executive branch of the United States Government in fact operates as judge, prosecutor and defence counsel at the same time. Other guarantees of the right to a fair trial, particularly concerning the accused’s access to the evidence used against him, are violated as well.

We also conclude that interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment. In some cases, described in interviews, the victim experienced severe pain or suffering, and it was found that these acts amounted to torture. Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman and degrading treatment and to a violation of the right to health. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces, as well as certain methods of force-feeding of detainees on hunger strike must be assessed as amounting to torture and a violation of the right to health.

The practice of rendition of persons to countries where there is a substantial risk of torture and inhuman or degrading treatment or punishment amounts to a violation of the principle of non-refoulement and is contrary to the human rights obligations of the United States of America. Also, there are reliable indications that, in different circumstances, persons detained in the Guantánamo Bay detention facilities have been victims of violations of the right to freedom of religion or belief, and that some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees.

Finally, the totality of the conditions of confinement at Guantánamo Bay constitute a right-to-health violation because they derive from a breach of governmental duty and have resulted in profound deterioration of the mental health of many detainees. The tragic suicides of detainees would appear to confirm these concerns. Also, regardless of how it is undertaken, the force-feeding of competent detainees violates the right to health, as well as the ethical duties of any health professionals who may be involved.

Based on such findings, our report includes a number of recommendations. In particular, we urge the United States Government to either expeditiously bring Guantánamo Bay detainees to trial before a competent and independent tribunal or release them without further delay. We call on the Government to close down the Guantánamo Bay detention centre and, until that time, 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. We also recommend that the Government of the United States ensures that every detainee has the right to make a complaint regarding his treatment and to have it dealt with promptly. Finally, the Government of the United States should refrain from expelling, returning, extraditing or rendering Guantánamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured or being treated or punished in cruel or degrading manner. The Government should also ensure that the authorities in Guantánamo Bay do not force-feed any detainee who is capable of forming a rational judgment and is aware of the consequences of refusing food. We reiterate our request for full and unrestricted access to the Guantánamo Bay facilities, including the opportunity to have private interviews with detainees.

We note that since the publication of our report, the Secretary-General, the High Commissioner for Human Rights, the Human Rights Committee and the Committee Against Torture and the European Union have also called for the closure of the detention facilities at Guantánamo Bay.

Mr. Chairperson, Distinguished delegates,

In July this year, we were encouraged by the Unites States Supreme Court decision of 29 June 2006 which outlawed the Military Commissions and as well as by the indications of the intention to close Guantánamo Bay in the nearest future from the highest levels of the United States Government. In its ruling, the United States Supreme Court confirmed that the common article 3 of the 1949 Geneva Conventions prescribes that fundamental human rights, such as the prohibition of torture and the right to be tried according to minimum fair trial guarantees, are minimum standards of humane treatment which apply at all times and can never be set aside, whatever the type of conflict.

Today, we note with the greatest concern that the Government has not taken any steps to close Guantánamo - indeed, a new block has been built and is due to be opened at the end of this month. Furthermore, the Government has not only taken no step to close Guantánamo, but that it has recently proposed draft legislation to the Congress which is in breach with United States’ human rights obligations as identified in our report and with the requirements of article 3 of the Geneva Conventions. While we noted with appreciation that the newly revised army interrogation manual recognizes the prohibition of interrogation techniques which amount to torture and cruel treatment, the currently proposed bill replaces this absolute prohibition by a flexible and vague definition of torture which might permit abuses depending on the circumstances.

The bill also includes a very broad definition of "enemy combatant" which authorizes the US Government to arrest and detain indefinitely people who have no connection to an armed conflict. In addition, it denies detainees the right to challenge their detention before federal courts, and establishes military tribunals that do not respect minimum fair trial guarantees, since they have the same features as the Military Commissions outlawed by the Supreme Court. As a result, pursuant to the proposed bill, any non-American national designated as enemy combatant by the US Government could be held indefinitely without being charged and without being able to challenge his/her detention or any abuse before an independent court. This legislation would legalize the repetition of the violations we are witnessing in Guantánamo Bay.

Mr. Chairperson, Distinguished delegates,

We wish to conclude by again drawing the attention of the Human Rights Council to the serious human rights violations taking place in Guantánamo that we identified in our report, and by underlining that since our report has been issued, no substantial progress has been made to prevent such serious violations. On the contrary, the admission of the existence of secret places of detention points to very serious human rights violations in relation to the hunt for alleged terrorists, and requires the urgent attention of the Human Rights Council. Also, while in first place, following the Supreme Court ruling, the United States administration indicated that it was going to abide by a number of human rights obligations, the bill it is now proposing to Congress is in breach of its human rights obligations. We call upon the Human Rights Council to urge the Government of the Unites States to implement the recommendations set out in this report and to put an end to the violations described therein, to allow the mandate-holders to urgently visit the Guantánamo detention centre, to urgently abolish the programme of secret detention, and to abide by its human rights obligations in its fight against terrorism.

Thank you.