On Guantanamo Bay Precautionary Measures
Washington, D.C., July 28, 2006
On March 12, 2002, approximately 2 months after the United States began transferring individuals captured in connection with the US-led military operation against the former Taliban regime in Afghanistan and the terrorist organization Al-Qaida to its naval base at Guantanamo Bay, Cuba, the Inter-American Commission on Human Rights granted precautionary measures in favor of the detainees at Guantanamo Bay requesting that the United States take the “urgent measures necessary to have the legal status of the detainees at Guantanamo determined by a competent tribunal.” The Commission considered that, without this determination, the fundamental and non-derogable rights of the detainees may not be recognized and guaranteed by the United States.
Since that time, the Commission has held three hearings on the precautionary measures and has reiterated the measures to the United States on four separate occasions. Moreover, the Commission amplified the measures in response to information indicating the possible torture or other cruel, inhuman or degrading treatment or punishment of detainees at Guantanamo Bay or the possible removal of detainees to jurisdictions where they could be subjected to torture. In particular, the Commission requested the United States take all measures necessary to thoroughly and impartially investigate, prosecute and punish all instances of torture and or other cruel, inhuman or degrading treatment or punishment that may be perpetrated against the detainees at Guantanamo Bay, as well as to fully respect the non-refoulement principle under the UN Convention against Torture.
Notwithstanding this extensive procedural history, the Commission has not received information indicating that the United States has complied with the Commission’s requests. The United States has stated, among other things, that the IACHR lacks jurisdiction due to the fact that international humanitarian law and not international human rights law is the applicable regime in this matter. Thus, over four years after the Commission’s measures were issued, the legal status of the detainees remains unclear, and it is uncertain whether or to what extent independent investigations into allegations of mistreatment at Guantanamo Bay have been undertaken or what measures have been taken to ensure that detainees are not removed to jurisdictions where they may be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
The Commission is also aware of a report issued by five special mandate holders of the United Nations Human Rights Commission in February 2006 criticizing the situation at Guantanamo Bay and urging the United States to close the facility without further delay, as well as a report issued by the United Nations Committee Against Torture in May 2006 making similar recommendations.
Finally, the Commission takes note of the June 29, 2006, decision of the U.S. Supreme Court in the case of Hamdan v. Rumsfeld in which the Court struck down the military commissions that the United States proposed to use to try the detainees at Guantanamo Bay, based in part upon concerns that the commissions did not satisfy the minimum protections under Common Article 3 to the Geneva Conventions. The Commission is further aware of the follow up Memorandum from the Department of Defense of July 7, 2006.
In view of the forgoing, the Inter-American Commission, resolves to:
1. INDICATE that the failure of the United States to give effect to the Commission’s precautionary measures has resulted in irreparable prejudice to the fundamental rights of the detainees at Guantanamo Bay including their rights to liberty and to humane treatment.
2. URGE the United States to close the Guantanamo Bay facility without delay.
3. URGE the United States to remove the detainees from Guantanamo Bay through a process undertaken in full accordance with applicable forms of international human rights and humanitarian law.
4. URGE the United States to take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment or punishment if transferred, removed or expelled from Guantanamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Further, where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non-refoulement obligation.
5. URGE the United States to comply with its obligation to investigate, prosecute and punish any instances of torture or other cruel, inhuman or degrading treatment or punishment that may have occurred at the facility, even in the event that Guantanamo Bay facility is closed.