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To Mr. President
- Rapporteur
Working group on Arbitrary Detention
OHCHR
Paris-Geneva,
January 22, 2002
Object :
Arbitrary detention of presumed members of Al-Qaeda at Guantanamo
bay
Dear Mr.
President,
The International
Federation for Human Rights wishes to seize the UN Working Group
on Arbitrary Detention, regarding the situation of the detainees
at Guantanamo bay, detained as part of the investigation into
the September 11 attacks.
Said to
be 158, their identity is still unknown. This figure could further
increase: according to the declarations made by the American
authorities, the Guantanamo bay base can receive up to 2000
detainees. Those detainees are " presumed guilty "
of either belonging to the terrorist organisation Al-Qaeda or
of supporting this network through their participation to the
Taliban regime. Most of them were captured on Afghan territory
and were then transferred to the American base of Guantanamo
bay. The FIDH wishes to draw your attention on the arbitrary
character of their detention.
According
to the American authorities, those detainees cannot be considered
as prisoners of war. The authorities have used the expression
"battlefield detainees", unknown in international
law, to qualify the detainees. Accordingly, the FIDH wishes
to underline the fact that these detentions are not based on
any legal ground. Moreover, the FIDH is very concerned that
those persons may not have been notified the grounds for their
detention or the charges made against them. As a consequence,
these detentions should be considered as arbitrary according
to category I, as defined by the Working Group.
Moreover,
according to the information issued by the American authorities,
the detainees are held in small cells with metallic wire fences,
with a concrete floor and a metal roof. They have two blankets:
one for sleeping and one for praying. The cells provide hardly
any shelter against rain and wind. Details concerning sanitary
installations are not available. The photographs released by
the United States Department of Defence show the detainees kept
in uncomfortable positions, handcuffed, gagged and wearing black
glasses and earplugs. Those sensorial deprivations and the information
concerning the conditions of detentions show that detainees
are being subjected to inhuman and degrading treatment, in violation
of the principles 1 and 6 of the Body of Principles for the
Protection of all Persons under any form of Detention or Imprisonment.
According
to the American government, some of theses detainees come under
the jurisdiction of " military commissions " i.e.
courts specially created for the occasion. As has been said
by the UN Commission and the Committee on Human Rights, the
nature and functioning of such courts violate the principle
of independence of the judiciary, as well as the right to a
fair trial. Therefore the detentions can be qualified as arbitrary
in accordance with category III of the Working Group.
The American
authorities stress that the prisoners should benefit from the
following guarantees:
A process reminiscent of an appeal commission should be introduced.
After the trial, a three-person committee should assess the
verdict and claims of the defence. The committee would then
send its recommendations to the Secretary of Defence. The final
decision would belong to President Bush.
In addition
to the court appointed military attorneys, the accused would
have the possibility to be assisted by civilian attorneys. Finally
the public and journalists would be entitled to attend the hearings.
The sessions will be in camera only in cases where classified
information is likely to be disclosed.
The enforcement
of the death penalty has not been excluded, but the American
Administration has notified that for it to be enforced, there
must be unanimous approval of the military jurors. Initially,
only two thirds of them had to approve capital punishment for
it to be enforced.
Finally,
consular observers and representatives of the International
Committee of the Red Cross have access to the detainees.
However,
these precisions do not make the detention any more legal as
regards international standards on conditions of detention,
which can be opposed to the United States.
As a result, the FIDH urges the Working Group to urgently consider
the situation of the Guantanamo detainees, in order to examine
the arbitrary character of their detention.
The FIDH
considers that the Working Group is entitled to open an urgent
action procedure, so as to react adequately to the allegations
of inhuman and degrading treatment.
The FIDH
also urges the Working Group to seek permission to carry out
an in situ visit, in order to proceed to an independent and
impartial expertise of the situation and conditions of detention
of the persons held illegally in the Guantanamo bay camp.
We thank
you for your attention.
Yours truly,
Sidiki
Kaba
Président
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