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