EQUIPO NIZKOR
Information

DERECHOS


13May02

Observations to US government response to request for precautionary measures on behalf of the Detainees in Guantanamo Bay.

TO THE HONORABLE MEMBERS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, ORGANIZATION OF AMERICAN STATES

REQUEST BY THE CENTER FOR CONSTITUTIONAL RIGHTS, THE HUMAN RIGHTS CLINIC AT COLUMBIA LAW SCHOOL AND THE CENTER FOR JUSTICE AND INTERNATIONAL LAW FOR PRECAUTIONARY MEASURES UNDER ARTICLE 25 OF THE COMMISSION'S REGULATIONS

OBSERVATIONS TO U.S. GOVERNMENT'S RESPONSE TO REQUEST FOR PRECAUTIONARY MEASURES

INTRODUCTION

By its decision of March 13,2002, the Commission issued precautionary measures requesting the U.S. Government to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. Decision of the Inter-American Commission on Human Rights on Request for Precautionary Measures dated March 13, 2002 ("Commission Decision of March 13"). The United States Government ("Government") opposes the decision but fails to establish any persuasive reason why the Commission should rescind its request. Contrary to the Government's assertions, the Commission has the authority to issue precautionary measures in cases alleging violations of the American Declaration of the Rights and Duties of Man ("American Declaration"). In arriving at its decision, the Commission did not, as the Government claims, directly apply norms of international humanitarian law but rather used this body of law to inform its interpretation of the American Declaration. Not only does this approach comport with the jurisprudence and practice of both the Commission and Inter-American Court of Human Rights, it is also in accordance with the methodology set forth by the International Court of Justice ("ICJ").

Finally, the Government has failed to rebut Petitioners' showing that the detainees would suffer irreparable harm should it fail to implement the measures.

In light of the imminent risk of irreparable damage to the detainees Petitioners request the continued intervention of the Commission to oversee and ensure the United States' compliance with the precautionary measures requested and in addition, the issuance of precautionary measures requesting that the United States adopt measures necessary to protect the fundamental rights of those detained at Guantanamo Bay.

I. THE COMMISSION HAS AUTHORITY TO ADOPT PRECAUTIONARY MEASURES IN THIS MATTER

The Government claims that the Commission "has no authority to make requests for precautionary measures." Response of the United States to Decision on Precautionary Measures - Detainees in Guantanamo Cuba at 36 ("Response".) This assertion ignores the plain wording of the Commission's Rules of Procedure and the practice and jurisprudence of the Commission and other international juridical bodies.

The Commission's Rules of Procedure, both present and past, explicitly permit it to request precautionary measures against a member state of the Organization of American States which is not a party to the American Convention on Human Rights. |1| The Commission has issued such requests since at least 1985. See Roach and Pinkerton v. United States, Case 9647, Resolution No. 3/87, Annual Report of 1986-87. Precautionary measures have been issued many times in the seventeen years since Roach and Pinkerton, although only some of the requests are a matter of public record. Since the Commission began to publish such data in 1996, it has issued requests for precautionary measures in at least seventeen cases against the United States. |2|

Furthermore, compliance with precautionary measures is necessary to uphold the United States' international legal obligations. In one of the most recent cases, Garza v. United States, the Commission expressed its displeasure with non-compliance in its strongest language to date, reiterated the underlying international law obligation, and "called upon the United States and other OAS member states to comply with the Commission's requests for precautionary measures in cases involving threats to the right to life and thereby properly and fully respect their international human rights obligations." |3| Finally, the Commission noted that international tribunals routinely issue precautionary measures or their equivalent in urgent matters, including the Inter-American Court, the International Court of Justice, the European Court of Human Rights and the U.N. Human Rights Committee. |4|

The United States consistently denies, here and elsewhere, the power of the Commission to grant precautionary measures. These statements contradict publicly stated diplomatic commitments of the United States to honor the rulings of the Commission. In May of 1992, for example, the U.S. Ambassador to the OAS, Luigi R. Einaudi, stated that while the U.S. had not ratified the American Convention, "[w]e have never argued, however, that non-ratification exempts us from the Commission's criticism. When we affirm support for the Commission, we express our readiness to have its judgments applied to ourselves." |5| Similarly, in 1999, then-U.S. Ambassador to the OAS, Victor Marrero, said to a committee of the OAS that: "We have never argued that we are exempt from criticism by virtue of our failure to ratify [the American Convention on Human Rights]. . . .We affirm no standard that we are not prepared to have applied to ourselves and our support is for a process to which we ourselves have submitted." |6|

Here, where there is serious risk that the Guantanamo detainees may be charged with crimes and subjected to military commissions with the potential to impose unreviewable death sentences, and where there is, by the Government's own assertions, no end to their detention without presentation to any court or other competent tribunal for review of their status, the issuance of the request is both compelling and appropriate.

II. THE COMMISSION HAS JURISDICTION TO CONSIDER INTERNATIONAL HUMANITARIAN LAW WHEN INTERPRETING THE PRINCIPLES APPLICABLE TO THE GUANTANAMO DETAINEES

In its Decision of March 13, 2002, the Commission noted that it has in the past considered "definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration and other Inter-American human rights instruments in situations of armed conflict." In support, the Commission cited its own decisions and reports, to which further reference will be made below. The United States nonetheless argues that the Commission lacks competence to consider international humanitarian law. The Government relies extensively on the decision of the Inter-American Court of Human Rights in the Las Palmeras Case, Preliminary Objections, Judgment No. 67, Feb. 4, 2000, invoking that decision as a bar to the Commission's interpretation of international humanitarian law. Response at 18-24.

Aside from the implicit ex ante rejection by the Commission of the Government's position, the United States is wrong in seeking to apply the Las Palmeras Case to the present matter for several reasons. First, the Government misconstrues the Court's holding in Las Palmeras, both by misreading the decision and by ignoring subsequent jurisprudence of the Court which clearly establishes that both the Court and the Commission are empowered to consider international humanitarian law in order to interpret the human rights obligations created by Inter-American human rights instruments. Second, the consistent jurisprudence of the Commission, including its decision on precautionary measures in this case, makes clear its powers to interpret the American Declaration in light of recognized and binding human rights obligations. Finally, the Government's analysis too sharply separates international humanitarian law from international human rights law, in such a way that neither body of principles applies to the Petitioners.

A. The Jurisprudence of the Inter-American Human Rights System, Including the Las Palmeras Decision, Supports Consideration of International Humanitarian Law to Interpret Inter-American Human Rights Norms

The United States cites several passages from the Las Palmeras Preliminary Objections decision of the Court to support its argument that the Commission "lacks the jurisdictional competence to apply international humanitarian law." Response at 18-19. The Government misreads both Las Palmeras and the Commission's decision in the instant matter. In Las Palmeras, the Inter-American Court goes to great pains to distinguish between direct application and interpretation of international instruments. The former is permitted only as to those instruments that recognize the jurisdiction of the Commission and the Court, while the latter practice is a commonly used method of determining the meaning of broad or ambiguous terms in those human rights instruments that the Commission and Court have jurisdiction to apply. The Court noted, for example, that it is "competent to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible or not with the American Convention." The Las Palmeras Case, Preliminary Objections, at para. 32 (emphasis added). The Court, like the government of Colombia in Las Palmeras, only took issue with direct application of Geneva Convention provisions by the Commission, as opposed to the use of the Geneva Conventions as a means to elucidate or clarify obligations in the regional human rights instruments. Id. at para. 30 (noting that Colombia "established the distinction between 'interpretation' and 'application.'"). In the present case, the Commission's use of the definitional standards of international humanitarian law "in interpreting the American Declaration and other Inter-American human rights instruments in situations of armed conflict" is consistent with the Court's approach in Las Palmeras. Commission Decision of March 13 at 2 (emphasis added).

The United States also suggests that the Las Palmeras holding somehow limits the Commission to the interpretation of the American Convention alone. Response at 18-19. That reading is simply wrong, particularly in light of the specific provisions of Article 20 of the Commission's Statute. |7| Further, according to the long-standing practice and jurisprudence of the Inter-American human rights system, the American Declaration is a source of international obligation for the United States and other OAS Member States that are not parties to the American Convention. |8|

In short, nothing in Las Palmeras limits the powers of the Commission to interpret the American Declaration in light of the Geneva Conventions and customary international humanitarian law. That power is as central to its competence as the power asserted by the Court to interpret the Convention in the light of other sources of international law.

Moreover, the Court has clarified its jurisprudence on interpretation of international humanitarian law in subsequent decisions. Most importantly, in the Bamaca Velasquez Case judgment on the merits, the Court interpreted article 4 of the Convention in light of the provisions of Common Article 3 of the Geneva Conventions of 1949. Caso Bamaca Velasquez , Sentencia Sobre Fondo, Judgment No. 70, 25 November 2000, available at http://www.corteidh.or.cr/serie_c/C_70_ESP.html (visited April 25, 2002). |9| After citing the relevant text of Common Article 3, the Court found that Guatemala was engaged in "an armed conflict of non-international character" with consequent legal effects. Specifically, the Court concluded that in such circumstances the State "should provide to persons not directly participating in the hostilities or who remain outside of combat for whatever reasons, humane treatment without any distinction of an adverse nature." In particular, it concluded, international humanitarian law "prohibits in all times and places attempts on the life and personal integrity of the persons previously named." Id., all quotations from para. 207. Thus, in a single paragraph, the Court analyzed both the provisions of the Geneva Conventions and customary international humanitarian law relating to non-combatants in the internal armed conflict of Guatemala.

The Court noted that while it may lack jurisdiction to declare that a State is responsible for violations of treaties other than those within its ambit, "it may observe that certain acts or omissions which violate human rights under those treaties that do fall within its competence also infringe other international instruments for the protection of the human person, such as the Geneva Conventions of 1949 and, in particular, common article 3." Id. at para. 208. The Court concluded its analysis by reaffirming its 2000 decision in Las Palmeras and asserting that "the relevant dispositions of the Geneva Conventions can be taken into account as elements for the interpretation of the American Convention." Id. at para. 209. This construct regarding the interpretive powers of the Court is parallel to what this Commission does when it interprets the American Declaration in light of related humanitarian law principles and treaties.

More broadly, international law allows "any relevant rules of international law applicable to the relations between the parties" to be taken into account in treaty interpretation. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 31 (3)(c) (1969). The Inter-American Court of Human Rights has ruled consistently since its creation that the human rights organs of the Inter-American system have the power to consider the obligations imposed by other treaties when interpreting the provisions of the American Convention on Human Rights. Advisory Opinion OC- 1/82, "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Ser. A. No. 1, September 24,1982; Inter-American Court of Human Rights, Advisory Opinion OC-10/90 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14,1989; Inter-American Court of Human Rights, Advisory Opinion OC-16/99, The Right to Information on Consular Access in the Framework of the Guarantees of the Due Process of Law, October 1, 1999.

B. This Commission Has Interpreted the American Declaration in Light of International Humanitarian Law in a Number of Cases, Including the Instant Request for Precautionary Measures

In keeping with the general international practice, the Commission's contentious cases show a well-established pattern, developed in its responses to military actions by the United States and other countries in the hemisphere, consistently and appropriately interpreting the instruments of the Inter-American human rights system through the use of international humanitarian law. The most relevant precedent of the Commission is Coard et al. v. United States, Case No. 10.951, Inter-Am. C.H.R. Report No. 109/99, September 29, 1999. The United States argues that reliance on Coard is misplaced, as well as arguing that it is "inapposite" and incorrectly decided. Response at 21-22. The precedent of Coard, however, is relevant both factually and legally.

The facts in Coard relate to the detention and mistreatment of seventeen claimants by U.S. military personnel during the military intervention by U.S. and Caribbean armed forces in the island of Grenada during October 1983. Like the Petitioners here, the claimants in Coard asserted that they were held incommunicado for many days, without access to counsel and subject to protracted interrogation. Coard at paras. 17, 26. The Government, as here, asserted then that the petitioners were not POWs, but that "they were 'detained and accorded protection equivalent to that given prisoners of war,' and were [sic] 'thus were accorded the highest protections ... [available] under the laws of armed conflict.'" Id. at para. 22. In its analysis, the Commission noted three fundamental requirements under Article XXV of the Declaration regarding the legality of detention: "first, preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay." Id. at para. 45. In Coard, the Commission found a violation of Article XXV when the detention by the U.S. armed services was for a period of nine to twelve days, some of which was during the conduct of hostilities. Id. at paras. 57, 60. In Guantanamo, detention without compliance with any of the three requirements of the Declaration continues after three months with no end in sight to either the detention or the hostilities.

Coard further applies to the Guantanamo detainees in two key legal respects. First, it extends the protection of human rights and humanitarian norms to extraterritorial conduct by U.S. military forces, one of the few legal conclusions that the United States does not now contest. Id. at para. 37. Second, the Commission sets out a framework for its analysis of the interplay of international human rights and humanitarian law norms, a framework which it repeats in the instant case. "The Commission," it stated, "looks to the American Declaration as the primary source of international obligation and applicable law. This does not mean, however, as the United States argued, that the Commission may not make reference to other sources of law in effectuating its mandate, including international humanitarian law." Id. at para. 38. Thus, almost three years ago the Commission rejected the very arguments asserted by the Government today.

In subsequent paragraphs of Coard, the Commission set out its own framework for the interaction of international human rights and humanitarian law norms:

    1) There is an "integral linkage between the law of human rights and humanitarian law ... and there may be a substantial overlap in the application of these two bodies of law." Id. at para. 39. The two normative systems therefore may apply to any situation under study;

    2) Because "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of interpretation" |10| (id. at para. 40), the Commission would act inconsistently with general principles of international law if it did not take into account other international obligations of member states that may be relevant;

    3) Assertion by the U.S. that "the application of humanitarian law would wholly displace the application of the Declaration" (id. at para. 41) is inconsistent with the doctrine and practice of the Inter-American human rights system; and

    4) "[I]n a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace." Id. at para. 42.

On the facts of Coard, the Commission concluded, "the standards of humanitarian law help define whether the detention of the petitioners was 'arbitrary' or not under the terms of Articles I and XXV of the American Declaration." Id. at para. 42. The Commission also noted that the Inter-American Court gave explicit affirmation to the Commission's practice of invoking "other treaties concerning the protection of human rights" in its Advisory Opinion OC-1/82, "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Ser. A No. 1, September 24,1982. Id. at para. 43. Finally, the Commission noted that the petitioners in Coard were held by U.S. forces both during and after the cessation of hostilities (id. at para. 57), thus negating the Government's attempts to distinguish Coard on the facts (Response at 22).

Other jurisprudence of the Commission, much of which has been cited previously by the Petitioners and by the Commission in its request for precautionary measures, shows a consistent pattern of careful interpretation of humanitarian law norms in order to provide greater precision to the broad norms articulated in the American Declaration. See Disabled Peoples' International v. United States, Admissibility, Application No. 9213, Annual Report of 1986-87, at 184 (finding admissible a complaint against the United States in which the Commission interpreted the American Declaration in light of humanitarian law); Panama-U.S. Military Action Case, Admissibility, Case No. 10.573, Report No. 31/93, Annual Report of 1993, at paras. 22, 24 (declaring case admissible over assertions by the United States that claims by petitioners regarding violations of international humanitarian law lie outside the Commission's mandate, purpose and competence); Abella v. Argentina, Merits, Case No. 11.137, Report No. 5/97, Annual Report of IACHR 1997,at paras. 157- 171; Avila and others v. Colombia, Merits, Case No. 11.142, Report No. 26/97, Annual Report of IACHR 1997, at paras. 131-142; Ejido Morelia Case, Merits, Case No. 11.411, Report No. 48/97, Annual Report of IACHR 1997, at paras. 41-43; Third Report on the Situation of Human Rights in Colombia, OEA Ser. L/VIII.102 doc. 9 rev. 1, 25 February 1999, at paras. 10-16.

In short, in its request for precautionary measures, the Commission applies a consistent and well-recognized framework for the interpretation of human rights norms in light of the more precise and developed norms of international humanitarian law. It applies that framework with the full approval and support of the Inter-American Court of Human Rights, and nothing in either the Las Palmeras decision on Preliminary Objections or in the pleadings of the Government of the United States should deter the Commission from the proper exercise of its competence and jurisdiction.

C. The United States Inappropriately Bifurcates International Human Rights Law from International Humanitarian Law in Such a Way as to Make Neither Applicable to the Petitioners

The United States improperly segregates the doctrinal bodies of international human rights law and international humanitarian law from each other throughout its argument. The Government argues, for example, that "international human rights law is not applicable to the conduct of hostilities or the capture and detention of enemy combatants, which are governed by the more specific laws of armed conflict." Response at 21. Again, both the Court's discussion in Bamaca Velasquez and this Commission's statement that "the protections under international human rights and humanitarian law may complement and reinforce one another" (Commission Decision of March 13 at 3), refute the hierarchy proposed by the United States.

Moreover, this argument does not find support under international law generally. Rather than viewing international humanitarian and human rights law as separate and distinct, international law views them as complimentary and overlapping. Accordingly, even in times of armed conflict, human rights standards apply unless a state has derogated from a particular norm. This was the position adopted by the ICJ in the Nuclear Weapons Advisory Opinion |11| where it observed in relation to those rights protected by the International Covenant on Civil and Political Rights that "the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 (derogation clause) of the Covenant....." |12| The approach has also been adopted by the United Nations General Assembly, |13| Security Council |14| and Commission on Human Rights, |15| as well as the European Court on Human Rights. |16| In contrast, the Government's position is one that has been uniformly rejected by human rights experts. |17|

D. The Commission Has Correctly Followed The Methodology Set Forth By The International Court Of Justice For Ascertaining the Applicable Legal Norms In Cases That Involve International Humanitarian Law

Finally, contrary to the views of the Government, Response at 28, the Commission's reference to norms of international humanitarian law as a means to inform it of the specific content of human rights norms is also in line with the methodology set forth by the ICJ in its Nuclear Weapons Advisory Opinion. |18| In its Opinion, the ICJ did not, as the Government contends, establish a rule whereby during armed conflict, humanitarian law always trumps human rights law. Rather, the Court said was that during armed conflicts, the former informs the content of applicable human rights norms.

In its March 13 decision, the Commission took as a starting point the fact that international human rights law subsists in times of armed conflict and that certain of these rights cannot be derogated from, including the right to due process. |19| Thereafter, the Commission identified the detainees' right under article XVIII of the American Declaration to resort to the courts to ensure respect for their legal rights. In light of the on-going armed conflict, the Commission noted that for it to ascertain whether the right had been violated would require reference to the lex specialis, international humanitarian law. The Commission observed that, unlike human rights law, humanitarian law provides that the due process rights that accrue to a particular individual depend upon that individual's legal status. The Commission found that by depriving the detainees of their right to an independent determination on their status (a due process right) the Government had effectively deprived them of any other due process rights to which they might be entitled. In reaching this conclusion the Commission did not directly apply humanitarian law, but rather referred to this body of law to inform the specific content of the right of persons detained to resort to courts in the context of an on-going armed conflict. Not only is this methodology in line with prior jurisprudence of the Commission, it is also identical to that adopted by the ICJ in the Nuclear Weapons Case.

III. THE DETAINEES ARE BEING IRREPARABLY HARMED BY THE UNITED STATES' FAILURE TO RECOGNIZE ITS INTERNATIONAL LEGAL OBLIGATIONS

A. The Status Of "Unlawful Combatant" Is Not Recognized under International Humanitarian Law

The Government claims that precautionary measures are unnecessary because the legal status of the detainees is clear. Response at 29. The Government claims that all the detainees are "unlawful enemy combatants who were lawfully captured and detained in the course of active hostilities in armed conflict," id. at 27-28, and that none of them are entitled to POW status because they are unlawful combatants, id. at 30. The status of "unlawful combatant," the Government states, "has long been recognized under international law." Id. at 11. As authority for this proposition the Government cites a decision of the United States Supreme Court from 1942 |20| (Response at 11, note 4,) which relied upon European military manuals and text books published before this date. However, international humanitarian law currently does not recognize the status of "unlawful combatant." Individuals who fall into enemy hands during armed conflict have either prisoner of war or civilian status. This is the opinion of both the International Committee of the Red Cross ("ICRC") and the International Criminal Tribunal for the Former Yugoslavia. According to the ICRC:

    Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. |21|

Having been categorized as unlawful combatants by executive fiat, the Government then argues that such combatants are not entitled to access to any court or other independent tribunal. Indeed, the Government asserts that the detainees may be detained without access to counsel or any court - that is to say, without any protection whatsoever under international law - until the cessation of conflict, which will only occur at the "end" of the war on terrorism. As the Commission concluded in its request for precautionary measures, this view simply cannot withstand logical or legal analysis.

Some of the detainees were not even captured on any battlefield in the course of the on-going hostilities. Six of them, for example, are Algerian citizens arrested by U.S authorities extra-judicially in Bosnia in January 2002. |22| Following their arrest these men were transported to Guantanamo Bay where they are now imprisoned. |23| It appears that the United States is holding them under suspicion of "planning attacks on U.S. interests in Bosnia." |24| As non-combatants arrested in Bosnia, these six fall into the category of civilians facing criminal indictment and prosecution. As such the Government would be obliged to respect their rights under the American Declaration and the International Covenant of Civil and Political Rights, which it is clearly not doing. |25| For example, they are being denied the right of access to counsel. |26|

Similarly, some of the ten Kuwaiti nationals detained at Guantanamo were arrested not in Afghanistan but in Pakistan, |27| as was an Australian citizen, Mamdouh Habib, who has recently been transported to Guantanamo. |28| Indeed, Mr. Habib was arrested in Pakistan on October 5,2001, before the armed conflict even began. |29|

Further evidence that some of those detained may not in fact be "unlawful combatants," as the Government claims, are public statements made by the U.S. Secretary of Defense Rumsfield. During a radio interview on the 27 February during a radio interview he said: "If we find someone's innocent and shouldn't have been brought there, why, they would be released." |30| The Deputy Commander of Camp X-Ray has also reportedly said that some of the detainees are "victims of circumstance" and probably innocent. |31|

These specific examples underscore the impropriety of the United States' declaration and treatment of the detainees as "unlawful combatants" and the need for the United States to convene, at a very minimum, a competent tribunal so that the legal status and rights of all detainees can be definitively determined. Treating them all as combatant detainees clearly risks subjecting them to irreparable harm. The examples also highlight the need to request additional measures from the Government in order to fully protect the rights of the detainees, as detailed in the last section of this submission.

B. International Law Does Not Allow The U.S. To Select Which Rights to Grant The Detainees

The United States argues that the detainees are not suffering irreparable harm because, although a competent tribunal has not determined their status, "the United States is treating the detainees consistent with applicable international humanitarian law." |32| Response at 32. Yet, the United States concedes that it is unilaterally limiting these protections "to the extent [it deems] appropriate and consistent with military necessity." Id. at 33. This selective approach to rights protection is inconsistent with the demands of international law and confirms the Commission's finding that the detainees "remain entirely at the unfettered discretion of the United States government." Commission Decision of March 13, at 4. Further, even if the United States were treating the detainees as POWs (which it is not, as it admits that it is not providing the detainees with all POW privileges, Response at 12 |33|), the detainees remain in danger of irreparable harm as long as such treatment remains at the whim of the United States without recognition of any legal obligation. See e.g. United States v. Noriega, 808 F. Supp. 791, 794 (S.D. Fla.1992) (noting that a situation in which the United States claimed to be affording Manuel Noriega all the benefits of the Geneva Convention while reserving the discretion to determine at a future time that he was not entitled to such protection was "just the type of situation Geneva III was designed to protect against.")

C. The United States Has Failed to Rebut the Evidence that the Detainees Face the Risk of Irreparable Harm

The United States claims in its response that precautionary measures have only been requested by the Commission in the past in cases where the life of an individual was at risk or where there was an imminent threat of immediate harm to an individual's physical integrity. Response at 32. These claims, however, ignore the jurisprudence of both the Commission and the Court cited by the Petitioners in their request for precautionary measures. See Request for Precautionary Measures at 14-17. The cases cited clearly demonstrate that, in requesting precautionary measures, the Commission need not confine itself to situations in which there is a threat to life or personal integrity.

Furthermore, the lives and the personal integrity of the detainees are in jeopardy in the present case. Access to judicial review is essential to the protection of these rights. See Inter- American Court on Human Rights, Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6)of the American Convention on Human Rights), January 30,1987 and Inter-American Court on Human Rights, Advisory Opinion OC-9/87, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), October 6,1987 in which the Court recognized the importance of judicial guarantees in the protection of non-derogable rights. For example, in referring to the right to habeas corpus, the Court stated that "[H]abeas corpus performs a vital role in ensuring that a person's life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or cruel, inhumane, or degrading punishment or treatment" Advisory Opinion OC-8/87, Id. at para. 35.

It is the Government's position that despite the fact that there has been no determination made of their status by a competent tribunal, there is no risk of irreparable harm to the detainees because it is treating them "humanely." Response at 33. Even if the United States could establish that its failure to convene such a tribunal and in particular to comply with the requirements of the Geneva Convention does not constitute irreparable harm, its factual assertions regarding the detainees' treatment are suspect and inadequate. First, the Government fails to cite any source for the detainees' treatment other than Government sources, such as White House press statements and news articles by the military. Id. at 12-14,33. No independent sources are cited in the Government's response to substantiate their claims. International law requires more than bland assertions by a State that it is satisfying its legal obligations.

Second, the United States' claims that the detainees are not facing any immediate peril or irreparable harm and that they are being provided with "excellent medical care," id. at 32, 33, appears to be refuted by statements made by Government agents on the ground. In a recent interview with the press, a psychiatric nurse responsible for the mental well-being of the detainees, the Muslim chaplain and the current commander of Camp X-Ray all stated that mental disorders amongst the detainees are on the increase. Thirteen were reported to have been put on medication for mental disorders ranging from post-traumatic stress disorder to the early stages of schizophrenia. Added to this, the head of the field hospital for detainees is reported to have said that "the psychiatric team is not adequately trained to understand the complexities of cultural differences that may accompany some disorders." As a consequence many of them have simply been prescribed anti-depressant or anti-psychotic drugs. |34|

Although the detainees have recently been moved to a more permanent detention facility, |35| there remain grave concerns as to prison conditions. The cells in the new unit are smaller than those in which they were previously held and prisoners may be confined to them for the best part of the day with little or no opportunity for exercise. Powerful arc lighting remains on throughout the night and they are shackled whenever they are moved around the facility. |36|

Third, the Government asserts that the detainees are not being held incommunicado because the ICRC has met with some of them, the detainees can speak with each other subject to certain restrictions, "some have met and consulted privately with a U.S. Navy chaplain" and "[s]ome have met with government officials from their country of nationality." Response at 14. However, only the claim that an unspecified handful of detainees may have been able to speak to the ICRC in January 2002 can be substantiated with sources independent of the Government. For the majority of the Guantanamo detainees, incommunicado detention remains the order of the day.

Fourth, the Government's Response also states, without support or citation, that detainees have communicated with their families. Response at 35. While it appears that the detainees may have been allowed to send a half sheet of paper to their families upon their initial arrival at Guantanamo Bay, their ability to send letters and to otherwise effectively communicate with their families appears inconsistent with the requirements of Article 71 of the Third Geneva Convention and international law requirements generally. |37| The almost complete lack of contact the detainees have with the outside world may violate the non-derogable right to be free from cruel, inhuman or degrading treatment. |38|

Finally, the United States does not dispute the fact that none of the detainees have been able to consult with counsel.

IV. CONCLUSION AND PETITION

Petitioners have demonstrated that the Commission possessed both the authority and jurisdictional competence to issue the request for precautionary measures and also that the request is both compelling and appropriate. Petitioners have also demonstrated the need for further precautionary measures. Accordingly, the Commission should uphold its Decision of March 13, 2002, refuse the United States' request to reverse it and request the Government to adopt the following additional measures necessary to protect the right to personal integrity and fair trial of the detainees:

1. With respect to all non-combatants arrested, including but not limited to those arrested in Bosnia and Pakistan, afford them the full range of rights afforded to civilian detainees facing criminal indictment and prosecution and bring them immediately before a civilian criminal court.

2. Treat all other detainees as POWs until such time as a competent tribunal is convened and their legal status definitively determined, as mandated under pre-existing law, including international humanitarian law.

3. Afford each detainee the rights and liberties guaranteed by the American Declaration, including the following:

    a. Notification in writing of charges faced (if any);

    b. Access to legal counsel and confidentiality of attorney/client communications;

    c. Access to judicial review of any determinations made that affect their status and rights.

4. Identify all detainees by name, nationality and address, where known

5. Notify all detainees of their rights under Article 36 of the Vienna Convention on Consular Relations, and grant them access to consular representatives, should they request it.

6. Suspend interrogations of detainees until their status and rights have been finally determined.

7. Stay any proceedings before military commissions pending resolution of the prisoner's status and until such time has such commissions comply with pre-existing law and due process.

8. Permit the Commission to conduct an on-site investigation through a Special Commission named under Articles 40 and 51-55 of its Regulations.

Documentation Note: This document was submitted to the Inter-American Commission on Human Rights by:

  • Jennifer M. Green, Michael Ratner, Bill Goodman, Anthony DiCaprio, and Beth Stephens, from the Center for Constitutional Rights;
  • Roxanna Altholz from the Center for Justice and International Law;
  • Prof. Richard J. Wilson;
  • Judith Chompsky from the Law Offices of Judith Brown Chomsky;
  • Cynthia Soohoo, Ursula Wynhoven, Lisa Howley, Vanessa Ray-Hodge, and Philippa Scarlett, from the Human Rights Law Clinic at Columbia University Law School;
  • Sandra Coliver, Beth Van Schaack, and Joshua Sondheimer, fromt the Center for Justice & Accountability;
  • James J. Silk, Deena R. Hurwitz, and Allard. K. Lowenstein, from the International Human Rights Law Clinic at Yale Law School, on 13 May 2002

Notes:

1. Inter-American Commission on Human Rights, Rules of Procedure, Article 25(1): "In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons."in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, OAS/Ser.L/V/1.4 Rev. 7 at 127, 44 (2 February 2000) (rules of May 1, 2001); Rules of Procedure, Article 52 (rules effective since April 8, 1980.) Id. at 127,144. [Back]

2. The following cases are noted in the Annual Reports of the Commission from 1996 onward as having resulted in requests for precautionary measures: Richard Steven Zeitvogel v. United States(precautionary measures sought on December 6, 1996, no response from the State); Allan J. Bannister v. United States, Case No. 11.817 (precautionary measures sought on October 15, 1997, United States reported that it had forwarded the measures to the Office of the Attorney General of Missouri, petitioner executed October 23,1997); Sean Sellers v. United States (petitioner executed in Oklahoma on February 4,1999 after precautionary measures were requested in January); David Leisure v. United States, Case No. 12.201 (defendant executed on September 1, 1999 after precautionary measures were requested on August 27, 1999).

The 2000 Annual Report indicated that the Commission had precautionary measures in ten cases, all of which were opened and are pending before the Commission: Douglas Christopher Thomas, Case No. 12.240 (precautionary measures requested on January 6,2000); Juan Raul Garza, Case No. 12.243 (precautionary measures requested on January 27,2000); Shaka Sankofa, Case No. 11.193 (precautionary measures requested on February 4, June 15 and June 22, 2000); Victor Saldano, Case No. 12.254 (precautionary measures requested on March 13, 2000); Michael Domingues, Case No. 12.285 (precautionary measures requested on May 26, 2000); Miguel Angel Flores, Case No. 12.333 (request for precautionary measures on October 25, 2000, reiterated on November 1,2000, petitioner executed on November 9,2000); Johnny Paul Penry, Case No. 12.340 (precautionary measures requested on November 8, 2000); James Wilson Chambers, Case No. 12.341 (precautionary measures requested on November 10, 2000); Alexander Williams, Case No. 12.348 (precautionary measures requested on December 16, 2000); Jose Jacobo Amaya Ruiz, Case No. 12.351 (precautionary measures requested on December 15, 2000).

The 2001 Annual Report indicated that the Commission had issued precautionary measures in three cases: Thomas Nevius, Case No. 12.368 (precautionary measures requested on April 4,2001, Governor of Nevada appointed experts to examine petitioner's mental faculties); Robert Bacon Jr., Case No. 12.381 (precautionary measures requested on April 25, 2001 and repeated on October 2, 2001, Governor commuted sentence to life imprisonment without parole); Gerardo Valdez Maltos, Petition No. P0353.2001 (precautionary measures requested on June 14, 2001, indefinite stay of execution by Oklahoma Court of Criminal Appeals pending outcome of domestic proceedings). [Back]

3. Garza v. United States, at paras. 66,117. The Commission noted that it had issued press releases in the cases of both Sankofa v. United States and Miguel Angel Flores, calling on the United States "and other OAS member states" to respect their international human rights obligations. Id. at para. 66, n.27. [Back]

4. Id. at n. 69. [Back]

5. "Strengthening Support for Human Rights," Statement by Ambassador Luigi R. Einaudi, Permanent Representative of the United States, OAS General Assembly, Nassau, the Bahamas, May 20,1992. (Summary of statement on file with attorneys for the Petitioners; emphasis added) [Back]

6. "U.S. Views on the American Convention on Human Rights and the Inter-American Human Rights System," Remarks by Victor Marrero, U.S. Permanent Representative to the OAS, presented to the Committee on Juridical and Political Affairs, Organization of American States, October 20,1999. (Full statement on file with attorneys for the Petitioners; emphasis added) [Back]

7. Article 20 reads, in relevant part: "In relation to those member states of the Organization that are not parties to the American Convention on Human Rights, the Commission shall have the following powers . . .: (a) to pay particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man . . ." Statute of the Inter-American Commission on Human Rights, in BASIC DOCUMENTS, supra note 1, at 119, 124-125. [Back]

8. See I/A Court H.R., Advisory Opinion 10/89, Interpretation of the Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14,1989, Ser. A No. 10 (1989), paras. 35-45; James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87,22 September 1987, Annual Report of the IACHR 1986-87, paras. 46- 49. [Back]

9. Unfortunately, only the Spanish version of this decision is available at the time of this submission. Translations from Spanish are, therefore, unofficial. [Back]

10. Quoting from International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, at 26, 31. [Back]

11. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226. [Back]

12. Id. at para. 25. [Back]

13. See, e.g., Resolution 2444 (XXIII), Respect for Human Rights in Armed Conflicts, GA Res. 2444, UN GAOR, 23d. Sess., Supp. No. 18, at 50, UN Doc. A/7218, pmbl. (1969); Respect for Human Rights in Armed Conflicts, Report of the Secretary-General, UN Doc. A/8052, at Annex 1 (1970). [Back]

14. See, e.g., SC Res. 237, pmbl., UNSCOR, 28th Sess., Res. & Dec., at 5 UN Doc. S/INF/22/Rev.2 (1967) ("essential and inalienable human rights should be respected even during the vicissitudes of war"); see also the 1999 statement of the President condemning "attacks against civilians, especially women and children and other vulnerable groups, including also refugees and internally displaced persons in violation of the relevant rules of international law, including those of international humanitarian and human rights law." Protection of civilians in armed conflict, UN Doc. S/PRST/1999/6, para. 2. [Back]

15. See, e.g., resolutions of the Commission in regards to violations of human rights and humanitarian law in both international and non-international armed conflicts in Kuwait, the former Yugoslavia and Rwanda. UN Commission on Human Rights (CHR) Res. 1991/67, UN ESCOR, Supp. No. 2 at 154, UN Doc. E/1991/22, E/1991/22, E/CN.4/1991/91 (Kuwait); CHR Res. 1995/91, UN ESCOR, Supp. No. 4, at 275, para 2, UN Doc. E/1995/23, E/CN.4/1995/176 (1995) (Rwanda); CHR Res. 1995/89, id. at 262, para. 10 (Bosnia-Herzegovina). [Back]

16. Ergi v Turkey, 1998-IV Eur. Ct. H.R., paras. 79, 81, 86; Mcann v United Kingdom, 324 Eur. Ct. H.R. (SerA.), paras. 194, 200, 213 (1995). [Back]

17. See, e.g., Theodor Meron, The Humanization of Humanitarian Law, 94 AM. J. INT'L L. 239 (2000); Expert Analysis, POWs or Unlawful Combatants: September 11th and Its Aftermath, on Crimes of War Project Web Site, available at http://www.crimesofwar.org/expert/pow-intro.html (visited on April 25, 2002); Amnesty International, UNITED STATES OF AMERICA: MEMORANDUM TO THE US GOVERNMENT ON THE RIGHTS OF THE PEOPLE IN CUSTODY IN AFGHANISTAN AND GUANTANAMO BAY (April 2002). [Back]

18. Supra n. 11. [Back]

19. See Coard et al v. United States, Case No. 10.951, Inter-Am. C.H.R. Report No. 109/99, September 29,1999, at para. 59 ("certain fundamental rights may never be suspended, as in the case among others, of the right to life, the right to personal safety, or the right to due process... under no circumstances may governments employ ... the denial of certain minimum conditions of justice as a means to restore public order."); see also Inter-American Court on Human Rights, Advisory Opinion OC-9/97, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), October 6, 1987, at paras. 19-25; Mario Alfredo Lares-Reyes v. United States, Report No. 19/02, Petition No. 12.379, February 27, 2002 (decision on inadmissibility for failure to exhaust domestic remedies) at n. 23; Human Rights Committee General Comment 29: "[t]he principles of legality and rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offense. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant." CCPR/C/21/Rev.l/Add.l 1. paras. 11,16, August 31, 2001. [Back]

20. Ex Parte Quirin, 317 US 1 (1942). Of course, this case preceded the adoption of the 1949 Geneva Conventions and the American Declaration, which incorporate specific due process guarantees for all persons detained pursuant to the authority of a State, whether in time of peace or war. [Back]

21. International Committee of the Red Cross (ICRC), COMMENTARY: GENEVA CONVENTION(IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 51 (Geneva: 1958) (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia has recently affirmed this principle, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Prosecutor v Delalic et al: Judgment, ICTY, IT-96-21, ¶ 271 (Nov. 16,1998). [Back]

22. U.S. Embassy Closes in Sarajevo, United Press International, March 22, 2002, available at Lexis News Group File. See also Ian Fisher, U.S. Embassy in Sarajevo Closes Doors After Threat, N.Y. Times, March 23, 2002, at A8; Terrorist Threat Shutters U.S. Embassy in Bosnia, Chattanooga Times, March 23,2002, at A6; Amnesty Report, supra note 17, at 12. The names of the six detainees are Bansayah Belkacem, Lahmar Saber, Mustafa Ait Idir, Hadz Boudella, Lakhdar Boumediene, and Mohamed Nechle. Amnesty Report at 12. "At a press conference in Sarajevo on 22 January 2002, Madeleine Rees, representative in Bosnia-Herzegovina of the United Nations High Commissioner for Human Rights, described the case of the Algerians as one of 'extrajudicial removal from sovereign territory.' She said: 'm brief, our concern is that the rule of law was clearly circumvented in this process.... Consequently, it would appear that this was an arbitrary arrest and detention. The same charge, therefore, would apply to those who received them from the Bosnian authorities...." Amnesty Report, supra n. 17 at 13. [Back]

23. U.S. Embassy Closes in Sarajevo, Id.; U.S Embassy in Sarajevo Closes Doors After Threat, Id.; Terrorist Threat Shutters U.S. Embassy in Bosnia, Id.; Amnesty Report, supra, n. 17 at 13. [Back]

24. U.S. Embassy Closes in Sarajevo, Id.; Terrorist Threat Shutters U.S. Embassy in Bosnia, Id. [Back]

25. See Part III, Section C, for a full discussion of how the U.S. Government is violating international law vis-a-vis the detainees. [Back]

26. Amnesty Report, supra n. 17 at 5. [Back]

27. Kuwait Sends Lawyers to Help Guantanamo Prisoners, Reuters, May 6, 2002. [Back]

28. German Tourist Can Prove Habib's Innocence: Lawyer, ABC Online, May 10, 2002. [Back]

29. Christopher Kremmer, Egypt Admits Holding Terror-Suspect Australian for Past Five Months, Sydney Morning Herald, March 9, 2002; Christopher Kremmer, Peter Munro & Craig Skehan, Australians in Dark Over Held Terrorist, Sydney Morning Herald, April 19, 2002. [Back]

30. Interview with Cale Ramaker, KSDK-NBC, St. Paul, Minnesota (cited in Amnesty Report, supra n. 17, at 41). [Back]

31. An Uneasy Routine at Cuba Prison Camp. New York Times, March 16, 2002. [Back]

32. The United States fails to indicate the standards of treatment that it is applying to the detainees under "applicable principles of humanitarian law." As discussed supra, even if a competent tribunal determines that battlefield detainees are not entitled to POW status under the Third Convention, their treatment should be governed by the requirements of the Fourth Convention. Given that the dispute in this case primarily concerns the determination by a competent tribunal as to whether battlefield detainees are entitled to POW status, this section assumes that the U.S. is arguing that such detainees have not been irreparably harmed essentially because they are being treated as POWs. [Back]

33. See also White House Fact Sheet, Feb. 7,2002, http://www.whitehouse.gov/news/releases/2002/ 02/print/20020207-13.html (visited April 21, 2002). [Back]

34. Tom Hays, Guantanamo Mental Disorders Double, Associated Press, April 27, 2002. [Back]

35. Jane Sutton, Camp X-Ray Prisoners in New Cells at U.S. Naval Base, Reuters, April 29, 2002. [Back]

36. See Amnesty Report, supra n. 17 at 36-38. [Back]

37. International norms require that detainees have the ability to communicate with family members. Principle 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires that, "A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations. G.A. res.43/173, annex, 43 U.N. GAOR Supp. (No.49) at 298, U.N. Doc. A/43/49 (1988). [Back]

38. Both the Commission and the Court have repeatedly found that incommunicado detention amounts to cruel, inhuman and degrading treatment. See, e.g., Loayza Tamayo v. Peru, Commission Request for Provisional Measures, June 12, 1996 and Judgment of the Inter-American Court on Human Rights, September 17, 1997 (Ser. C.) paras. 57-58. [Back]

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