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UNITEDNATIONS
EEconomic and SocialCouncilDistr.GENERALFuture E/CN.4/2006/12015 February 2006Original: ENGLISH
COMMISSION ON HUMAN RIGHTSSixty-second sessionItems 10 and 11 of the provisional agendaECONOMIC, SOCIAL AND CULTURAL RIGHTSCIVIL AND POLITICAL RIGHTSSituation of detainees at Guantánamo BayReport of the Chairperson of the Working Group on Arbitrary Detention, Ms. LeilaZerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr.Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman ordegrading treatment or punishment, Mr. Manfred Nowak; the Special Rapporteuron freedom of religion or belief, Ms. Asma Jahangir and the Special Rapporteur onthe right of everyone to the enjoyment of the highest attainable standard of physicaland mental health, Mr. Paul Hunt.
E/CN.4/2006/120page 2Summary
The present joint report is submitted by five holders of mandates of specialprocedures of the Commission on Human Rights who have been jointly following thesituation of detainees held at theUnited States Naval Base at Guantánamo Bay since June2004.Section I provides a legal analysis common to all five mandates. Sections II toVoutline the legal framework specific to each mandate, as well as the particular allegations ofhuman rights violations which concern them. The final section contains conclusions andrecommendations.
E/CN.4/2006/120page 3ContentsIntroduction
THE LEGAL FRAMEWORK
A.B.C.D.E.
Human Rights and Counter-Terrorism MeasuresThe United States obligations under international lawScope of the United States obligations under international human rightslawLimitations and DerogationsThe complementarity of international humanitarian law and human rightslaw
II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES ANDLAWYERS
A. Deprivation of liberty at Guantánamo BayB. Detainees captured in the course of an armed conflictC. Detainees captured in the absence of an armed conflictD. The right to challenge the legality of detention before a judicial bodyE. The right to be tried by a competent and independent tribunalF. The right to a fair trialIII. TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADINGTREATMENT OR PUNISHMENT
A. Lack of clarity/confusing rulesB. Interrogation techniquesC. Conditions of detentionD. Use of excessive violenceE. Transfer, extraordinary rendition, non-refoulementF. Lack of impartial investigation/impunityIV. RELIGIOUS INTOLERANCE
E/CN.4/2006/120page 4A. Applicable international standardsB. Reported human rights allegationsV.THE RIGHT OF EVERYONE TO THE ENJOYMENT OF THE HIGHESTATTAINABLE STANDARD OF PHYSICAL AND MENTAL HEALTH
A. Mental healthB. Ethical obligations of health professionals, including in relation to force-feedingVI.CONCLUSIONS AND RECOMMENDATIONS
Annex I: EndnotesAnnex II. Letter dated 31 January 2006, addressed to the Office of the HighCommissioner for Human Rights, by the Permanent Representative of theUnited States of America to the United Nations and Other InternationalOrganizations in Geneva in Geneva.
E/CN.4/2006/120page 5Introduction
1.
The present report is the result of a joint study conducted by the Chairperson of the
Working Group on Arbitrary Detention, the Special Rapporteur on the independence ofjudges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, the Special Rapporteur on freedom of religion or belief and theSpecial Rapporteur on the right of everyone to the enjoyment of the highest attainablestandard of physical and mental health (the right to the highest attainable standard of healthor the right to health).2.Since January 2002, the five mandate holders have been following the situation of
detainees held at the United States Naval Base at Guantánamo Bay. In June 2004, theydecided to continue this task as a group because the situation falls under the scope of each ofthe mandates. The focus of each mandate holder is on the law, allegations andrecommendations relevant to his or her mandate as defined by the relevant resolutions of theCommission on Human Rights establishing the respective mechanism. However, themandate holders consider that they can better discharge their reporting obligations to theCommission by submitting one joint report on this subject rather than five individual reports.3.In studying the situation, they have continuously sought the cooperation of the United
States authorities and on 25 June 2004, they sent a letter, followed by several reminders,requesting the United States Government to allow them to visit Guantánamo Bay in order togather first hand information from the prisoners themselves. By letter dated 28 October2005, the Government of the United States of America extended an invitation for a one-dayvisit to three of the five mandate holders, inviting them “to visit the Department of Defense’sdetention facilities [of Guantánamo Bay]”. The invitation stipulated that “the visit will notinclude private interviews or visits with detainees”. In their response to the Governmentdated 31 October 2005, the mandate holders accepted the invitation, including the shortduration of the visit and the fact that only three of them were permitted access, and informedthe United States Government that the visit was to be carried out on 6 December 2005.However, they did not accept the exclusion of private interviews with detainees, as that
E/CN.4/2006/120page 6would contravene the terms of reference for fact-findings missions by special procedures andundermine the purpose of an objective and fair assessment of the situation of detainees heldin Guantánamo Bay. In the absence of assurances from the Government that it would complywith the terms of reference, the mandate holders decided on 18 November 2005 to cancel thevisit.4.The present report is therefore based on the replies of the Government to a
questionnaire concerning detention at Guantánamo Bay submitted by the mandate holders,interviews conducted by the mandate holders with former detainees currently residing ordetained in France, Spain and the United Kingdom1and responses from lawyers acting onbehalf of some Guantánamo Bay detainees to questionnaires submitted by the mandateholders. It is also based on information available in the public domain, including reportsprepared by non-governmental organizations (NGOs), information contained in declassifiedofficial United States documents and media reports. The report raises a number of importantand complex international human rights issues. In view of the fact that an on-site visit wasnot conducted and owing to page limitations, the report should be seen as a preliminarysurvey of international human rights law relating to the detainees in Guantánamo Bay. Inaccordance with usual practice, the United States Government was provided with a draft ofthis report on 16 January 2006. In its reply of 31 January 2006, the Government requestedthat its response be attached to the finalized report (see Annex). A number of revisions weremade to the draft report in the light of the Government’s reply of 31 January 2006.5.According to the information provided by the United States Government as of 21
October 2005, approximately 520 detainees were held in Guantánamo Bay. From theestablishment of the detention centre in January 2002 until 26 September 2005, 264 personswere transferred from Guantánamo, of whom 68 were transferred to the custody of otherGovernments, including those of Pakistan, the Russian Federation, Morocco, the UnitedKingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had designated17 detainees eligible for trial by a military commission. Of those, the United States has sincetransferred three to their country of origin, where they have been released. As of the end ofDecember 2005, a total of nine detainees had been referred to a military commission.2
E/CN.4/2006/120page 7
THE LEGAL FRAMEWORK
Human rights and counter-terrorism measures
6.
Following the 11September 2001 attacks on the United States, the Security Council
adopted resolution 1373 (2001) requiring all States to take a wide range of legislative,procedural, economic, and other measures to prevent, prohibit, and criminalize terrorist acts.The preamble of the resolution reaffirms “the need to combat by all means, in accordancewith the Charter of the United Nations, threats to international peace and security caused byterrorist acts.”7.In subsequent resolutions, the Security Council, as well as the General Assembly,
while recognizing the importance of the fight against terrorism, called for all “States [to]ensure that any measure[s] taken to combat terrorism comply with all their obligations underinternational law, in particular international human rights, refugee and humanitarian law”3.This fundamental principle has been reaffirmed by the Secretary-General,4the HighCommissioner for Human Rights5and the Commission on Human Rights, which has calledon all relevant special procedures and mechanisms of the Commission, as well as the UnitedNations human rights treaty bodies, to consider, within their mandates, the protection ofhuman rights and fundamental freedoms in the context of measures to combat terrorism.6B.The obligations of the United States under international law
8.
The United States is party to several human rights treaties relevant to the situation of
persons held at Guantánamo Bay, most importantly the International Covenant on Civil andPolitical Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment (Convention against Torture) and the InternationalConvention on the Elimination of All Forms of Racial Discrimination (ICERD)7. On 5October 1977, the United States signed the International Covenant on Economic, Social andCultural Rights (ICESCR), which it has not yet ratified. Some of the provisions of these
E/CN.4/2006/120page 8treaties reflect norms of customary international law. The prohibition of torture moreoverenjoysjus cogensstatus.9.The United States is also party to several international humanitarian law treaties
pertinent to the situation in Guantánamo Bay, primarily the Geneva Convention relative tothe Treatment of Prisoners of War (Third Convention) and the Geneva Convention relativeto the Protection of Civilian Persons in Time of War (Fourth Convention), of 12 August1949, many provisions of which are considered to reflect customary international law.Although the United States is not a party to the Additional Protocols I and II to the GenevaConventions, some of their provisions – in particular article 75 of Additional Protocol I – areregarded as applicable as they have been recognized as declaratory of customaryinternational law.8C.Scope of the obligations of the United States under international human
rights law
10.
In accordance with article 2 of ICCPR, “each State Party …undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction the rightsrecognized in the [ICCPR] without distinction of any kind, such as race, colour, sex,language, religion, political or other opinion, national or social origin, property, birth or otherstatus.”11.While article 2 refers to persons “within [a State Party’s] territory and subject to its
jurisdiction”, the Human Rights Committee, which monitors implementation of theCovenant, has clarified that “a State party must respect and ensure the rights laid down in theCovenant to anyone within the power or effective control of that State party, even if notsituated within the territory of the State party” .9Similarly, the International Court of Justice(ICJ) in its advisory opinion on theLegal Consequences of the Construction of a Wall in theOccupied Palestinian Territories10recognized that the jurisdiction of States is primarily
territorial, but concluded that the ICCPR extends to “acts done by a State in the exercise ofits jurisdiction outside of its own territory”.11Accordingly, the particular status of
E/CN.4/2006/120page 9Guantánamo Bay under the international lease agreement between the United States andCuba and under United States domestic law does not limit the obligations of the UnitedStates under international human rights law towards those detained there. Therefore, theobligations of the United States under international human rights law extend to the personsdetained at Guantánamo Bay.D.Limitations and derogations
12.
ICCPR and other international human rights instruments include specific provisions
allowing States to limit, restrict or, in highly exceptional circumstances, derogate fromcertain rights contained therein. Derogations are provided for under specific circumstancesthat threaten the life of the nation. Article 4 (1) of ICCPR sets out a number of proceduraland substantive safeguards regarding derogation measures: the State must have officiallyproclaimed a state of emergency; the derogation measures must be limited to those strictlyrequired by the exigencies of the situation; they must not be inconsistent with otherinternational obligations of the State; and they must not be discriminatory.13.Derogations are exceptional and temporary measures: “The Covenant requires that
even during an armed conflict measures derogating from the Covenant are allowed only ifand to the extent that the situation constitutes a threat to the life of the Nation” .12Derogationmeasures must be lifted as soon as the public emergency or armed conflict ceases to exist.Most importantly, derogation measures must be “strictly required” by the emergencysituation. This requirement of proportionality implies that derogations cannot be justifiedwhen the same aim could be achieved through less intrusive means.13Following the eventsof 11 September 2001, the United States has not notified any official derogation fromICCPR, as requested under article 4 (3) of the Covenant, or from any other internationalhuman rights treaty.14.Not all rights can be derogated from, even during a public emergency or armed
conflict threatening the life of a nation. Article 4 (2) of ICCPR stipulates which rights cannotbe subject to derogation. These include the right to life (art. 6), the prohibition of torture or
E/CN.4/2006/120page 10cruel, inhuman or degrading treatment or punishment (art. 7), the recognition of everyone asa person before the law (art. 16), and freedom of thought, conscience and religion (art. 18).Although article 9 of the Covenant, enshrining the right to liberty and its correspondingprocedural safeguards, and article 14, providing for the right to a fair trial, are not among thenon-derogable rights enumerated in article 4, the Human Rights Committee has indicated inits general comment No. 29 (2001) that “procedural safeguards may never be made subjectto measures that would circumvent the protection of non-derogable rights.” Thus, the mainelements of articles 9 and 14, such as habeas corpus, the presumption of innocence andminimum fair trial rights, must be fully respected even during states of emergency.14E.The complementarity of international humanitarian law and humanrights law
15.
The application of international humanitarian law and of international human rights
law are not mutually exclusive, but are complementary. As stated by the Human RightsCommittee in general comment No. 31 (2004):“the Covenant applies also in situations of armed conflict to which the rules ofinternational humanitarian law are applicable. While in respect of certain Covenantrights, more specific rules of international humanitarian law may be especiallyrelevant for the purpose of the interpretation of the Covenant rights, both spheres oflaw are complementary, not mutually exclusive.”16.In its advisory opinion on theLegality of the Threat or Use of Nuclear Weapons,ICJ
clearly affirmed the applicability of ICCPR during armed conflicts. The Court stated that“the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test ofwhat constitutes an arbitrary deprivation of life, however, then must be determined by theapplicablelex specialis, namely, the law applicable in armed conflict”.15The Courtconfirmed its view in its advisory opinion on theLegal Consequences of the Construction ofa Wall in the Occupied Palestinian Territories: “the protection offered by human rights
E/CN.4/2006/120page 11conventions does not cease in case of armed conflict, save through the effect of provisionsfor derogation of the kind to be found in article 4 of the [ICCPR]”16.II.ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES ANDLAWYERS
17.
The Chairperson of the Working Group on Arbitrary Detention17and the Special
Rapporteur on the independence of judges and lawyers are deeply concerned about thelegal regime applied by the United States to the detainees in the Guantánamo Baydetention centre. In their view, the legal regime applied to these detainees seriouslyundermines the rule of law and a number of fundamental universally recognized humanrights, which are the essence of democratic societies. These include the right to challengethe lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fairtrial by a competent, independent and impartial court of law (ICCPR, art. 14); theyprotect every person from arbitrary detention and unjust punishment and safeguard thepresumption of innocence.18.The legal regime imposed on detainees at Guantánamo is regulated by the
Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the WarAgainst Terrorism of 13 November 200118(hereafter referred to as the “Military Order”).It allows suspects to be detained indefinitely without charge or trial, or to be tried beforea military commission. This section assesses the legal basis for detention and theremedies available to challenge detention from the perspective of the two above-mentioned mandates. It then assesses whether these military commissions satisfy theminimum international law requirements of a fair trial and an independent tribunal, inparticular as set out in article 14 of ICCPR and in the Basic Principles on theIndependence of the Judiciary and the United Nations Basic Principles on the Role ofLawyers.A.Deprivation of liberty at Guantánamo Bay
E/CN.4/2006/120page 1219.The fundamental proposition of the United States Government with regard to the
deprivation of liberty of persons held at Guantánamo Bay is that “[t]he law of war allowsthe United States – and any other country engaged in combat – to hold enemy combatantswithout charges or access to counsel for the duration of hostilities. Detention is not an actof punishment but of security and military necessity. It serves the purpose of preventingcombatants from continuing to take up arms against the United States”.19While theChairperson of the Working Group and the Special Rapporteur would not use the term“enemy combatant”, they share the understanding that any person having committed abelligerent act in the context of an international armed conflict and having fallen into thehands of one of the parties to the conflict (in this case, the United States) can be held forthe duration of hostilities, as long as the detention serves the purpose of preventingcombatants from continuing to take up arms against the United States. Indeed, thisprinciple encapsulates a fundamental difference between the laws of war and humanrights law with regard to deprivation of liberty. In the context of armed conflicts coveredby international humanitarian law, this rule constitutes thelex specialisjustifyingdeprivation of liberty which would otherwise, under human rights law as enshrined byarticle 9 of ICCPR, constitute a violation of the right to personal liberty.20.The United States justifies the indeterminate detention of the men held at
Guantánamo Bay and the denial of their right to challenge the legality of the deprivationof liberty by classifying them as “enemy combatants”. For the reasons the Chairperson ofthe Working Group and the Special Rapporteur will elaborate, to the extent permitted bythe constraints of this report, the ongoing detention of the Guantánamo Bay detainees as“enemy combatants” does in fact constitute arbitrary deprivation of the right to personalliberty.21.Because detention “without charges or access to counsel for the duration of
hostilities” amounts to a radical departure from established principles of human rightslaw, it is particularly important to distinguish between the detainees captured by theUnited States in the course of an armed conflict and those captured under circumstancesthat did not involve an armed conflict. In this context, it is to be noted that the global
E/CN.4/2006/120page 13struggle against international terrorism does not, as such, constitute an armed conflict forthe purposes of the applicability of international humanitarian law.20B.Detainees captured in the course of an armed conflict
22.
The Third Geneva Convention provides that where, in the context of “cases of
declared war or of any other armed conflict which may arise between two or more of theHigh Contracting Parties” (art. 2(1)), a person “having committed a belligerent act andhaving fallen into the hands of the enemy” may be detained as prisoner of war until theend of the hostilities. The Fourth Geneva Convention allows a party to the conflict todetain (“intern”) civilians because they constitute a threat to the security of the Party orintend to harm it (arts. 68, 78 and 79), or for the purposes of prosecution on war crimescharges (art. 70). Once the international armed conflict has come to an end, prisoners ofwar and internees must be released,21although prisoners of war and civilian interneesagainst whom criminal proceedings for an indictable offence are pending may bedetained until the end of such proceedings.22As the rationale for the detention ofcombatants not enjoying prisoner of war status is to prevent them from taking up armsagainst the detaining power again, the same rule should be applied to them. In otherwords, non-privileged belligerents must be released or charged once the internationalarmed conflict is over.23.The indefinite detention of prisoners of war and civilian internees for purposes of
continued interrogation is inconsistent with the provisions of the Geneva Conventions23.Information obtained from reliable sources and the interviews conducted by the specialprocedures mandate holders with former Guantánamo Bay detainees confirm, however,that the objective of the ongoing detention is not primarily to prevent combatants fromtaking up arms against the United States again, but to obtain information and gatherintelligence on the Al-Qaeda network.24.The Chairperson of the Working Group and the Special Rapporteur note that,
while United States Armed Forces continue to be engaged in combat operations in
E/CN.4/2006/120page 14Afghanistan as well as in other countries, they are not currently engaged in aninternational armed conflict between two Parties to the Third and Fourth GenevaConventions. In the ongoing non-international armed conflicts involving United Statesforces, thelex specialisauthorizing detention without respect for the guarantees set forthin article 9 of ICCPR therefore can no longer serve as basis for that detention.C.Detainees captured in the absence of an armed conflict
25.
Many of the detainees held at Guantánamo Bay were captured in places where
there was – at the time of their arrest – no armed conflict involving the United States. Thecase of the six men of Algerian origin detained in Bosnia and Herzegovina in October2001 is a well-known and well-documented example,24but also numerous other detaineeshave been arrested under similar circumstances where international humanitarian law didnot apply. The legal provision allowing the United States to hold belligerents withoutcharges or access to counsel for the duration of hostilities can therefore not be invoked tojustify their detention.26.This does not of course mean that none of the persons held at Guantánamo Bay
should have been deprived of their liberty. Indeed, international obligations regarding thestruggle against terrorism might make the apprehension and detention of some of thesepersons a duty for all States. Such deprivation of liberty is, however, governed by humanrights law, and specifically articles 9 and 14 of ICCPR. This includes the right tochallenge the legality of detention before a court in proceedings affording fundamentaldue process rights, such as guarantees of independence and impartiality, the right to beinformed of the reasons for arrest, the right to be informed about the evidence underlyingthese reasons, the right to assistance by counsel and the right to a trial within a reasonabletime or to release. Any person deprived of his or her liberty must enjoy continued andeffective access to habeas corpus proceedings, and any limitations to this right should beviewed with utmost concern.D.The right to challenge legality of detention before a judicial body
E/CN.4/2006/120page 15
27.
The Chairperson of the Working Group and the Special Rapporteur recall that
detainees at Guantánamo Bay were deprived of their right to challenge the lawfulness oftheir detention and of their right to legal counsel for several years, until a United StatesSupreme Court decision granted detainees access to federal courts. In June 2004, theSupreme Court, inRasul v. Bush,25held that United States courts have the jurisdiction toconsider challenges to the legality of the detention of foreign nationals detained at theGuantánamo Bay Naval Base. However, at the time of writing (i.e. more than four yearsafter detention at Guantánamo Bay started), not a single habeas corpus petition has beendecided on the merits by a United States Federal Court.28.In light of theRasuljudgement, the Government, on 7 July 2004, created the
Combatant Status Review Tribunal (CSRT), a body composed of three non-commissioned officers, to examine the legality of detentions. Thereafter, the UnitedStates District Court dealing with the habeas corpus petitions of the Guantánamodetainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity tochallenge their incarceration” and thus fail to comply with the terms of the SupremeCourt’s ruling26. According to information received from the Government, all personscurrently held at Guantánamo Bay had their status reviewed by the CSRT.27The UnitedStates further established, on 11 May 2004, Administrative Review Boards (ARBs) toprovide an annual review of the detention of each detainee. These institutions do notsatisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … detained on a criminalcharge shall be brought promptly before a judge or other officer authorized by law toexercise judicial power and shall be entitled to trial within a reasonable time or torelease”: the requirement in article 9 (4) of ICCPR that “[a]nyone who is deprived of hisliberty by arrest or detention shall be entitled to take proceedings before a court, in orderthat that court may decide without delay on the lawfulness of his detention and order hisrelease if the detention is not lawful”, or the requirements of article 14 of ICCPR, as:
E/CN.4/2006/120page 16(a)9(3));(b)Detainees’ defence counsel whom the mandate holders met raised seriousconcerns regarding CSRT and ARB procedural rules, which do not provide thedetainees with a defence counsel.28Moreover, the restrictions on detainees’ rightto be present at hearings in their case and on their access to the information andevidence on which the allegation that they are unlawful belligerents is basedundermine the legality and legitimacy of the process;(c)The interviews conducted by the mandate holders with detaineescorroborated allegations that the purpose of the detention of most of the detaineesis not to bring criminal charges against them but to extract information from themon other terrorism suspects. Indeed, four years after the establishment of thedetention facility, none of the inmates has been tried and the proceedings of onlynine persons detained at Guantánamo Bay are close to the trial stage;29(d)It would appear that in determining the status of detainees the CSRT hasrecourse to the concepts recently and unilaterally developed by the United StatesGovernment, and not to the existing international humanitarian law regardingbelligerency and combatant status; and(e)Even where the CSRT determines that the detainee is not an “enemycombatant” and should no longer be held, as in the case of the Uighurs held atGuantánamo Bay nine months after the CSRT determined that they should befreed, release might not ensue.3029.The concerns raised by the shortcomings of the CSRT and ARB procedures areThe CSRTs and ARBs do not comprise the guarantees of independence
essential to the notions of a “court” (art. 9 (4)) or “exercise of judicial power” (art.
aggravated by the Detainee Treatment Act of 2005, which provides that “no court, orjudge shall have jurisdiction to hear or consider (1) an application for a writ of habeascorpus filed by or on behalf of an alien detained by the Department of Defense atGuantanamo Bay, Cuba”.31The exception hereto is that the United States Court ofAppeals for the District of Columbia retains jurisdiction to determine the validity of anyfinal decision of a CSRT. However, the jurisdiction of the Court of Appeals only extends
E/CN.4/2006/120page 17to examining whether the procedures were properly followed, and not to the merits of theCSRT decision.32E.Right to be tried by a competent and independent tribunal
30.
Article 14 (1) of ICCPR states that in criminal proceedings “everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial tribunalestablished by law”.33The Basic Principles on the Independence of the Judiciary alsorecognize that “everyone shall have the right to be tried by ordinary courts or tribunalsusing established legal procedures. Tribunals that do not use the duly establishedprocedures of the legal process shall not be created to displace the jurisdiction belongingto the ordinary courts or judicial tribunals”34. The Military Order provides that detaineesmust be tried by the Military Commission created ad hoc for Guantánamo detainees anddenies them the well-established procedures of ordinary civilian courts or militarytribunals.31.The Human Rights Committee in general comment No. 13 (1984) interpreted
article 14 of ICCPR to mean that the basic requirements for a fair trial within article 14apply both to ordinary and specialized tribunals.35In noting the existence in certaincountries of military tribunals which try civilians, the Committee considered that “thiscould present serious problems as far as the equitable, impartial and independentadministration of justice is concerned” and that “quite often the reason for theestablishment of such courts is to enable exceptional procedures to be applied which donot comply with normal standards of justice”. The Committee concludes that “the tryingof civilians by such courts should be very exceptional and take place under conditionswhich genuinely afford the full guarantees stipulated in article 14”36. Militarycommissions should therefore also fully comply with the provisions set out in article 14and respect the guarantees for a fair trial.32.The proceedings before military commissions at Guantánamo Bay are hard to
reconcile with article 14 of ICCPR. According to the military order, the judges of the
E/CN.4/2006/120page 18commissions are appointed by the “Appointing Authority”, which is under the authorityand the responsibility of the Department of Defense and ultimately of the President.Judges should be commissioned officers of the armed forces and may be removed by theAppointing Authority. Such provisions suggest not only interference by but full controlover the commissions’ judges by the executive: the requirement of an independentjudiciary is clearly violated. In addition, there appears to be no impartial judicialmechanism for resolving conflict of jurisdiction: decisions on issues of jurisdiction andcompetence are made by the Appointing Authority, leaving the military commissionsoutside the control of judicial authorities.33.Finally, the Military Order requires only a minimum level of legal knowledge for
appointment to the commissions. The inadequate qualifications of the members impedethe regular and fair conduct of the hearings, violating the essential requirement that“persons selected for judicial office shall be individuals of integrity and ability withappropriate training or qualifications in law”.37The detainees’ right to be tried by judgessufficiently competent in law is violated although Revised Military Commission OrderNo.1 mitigates this by allocating responsibility for ruling on most questions of law to thepresiding officer, who must be a judge advocate of any of the United States ArmedForces.F.The right to a fair trial
34.
The right to a fair trial is recognized in article 14 of ICCPR, as well as articles 105
and 106 of the Third Geneva Convention and article 75 of the Additional Protocol I (thislast article is considered to be declaratory of customary law)38. The fundamentalprinciples of the right to a fair trial cannot be derogated from by any State, under anycircumstances, as affirmed by the Human Rights Committee in its general comment No.29.39The Military Order recognizes the duty to “provide a full and fair trial”, but itsprovisions do not guarantee that right.
35.
The Military Order limits the right to be tried in one’s presence. Also, the right of
the accused to defend himself/herself in person or through legal assistance of his/her own
E/CN.4/2006/120page 19choosing is violated since, as noted above, the Military Commissions provide for adefence counsel to be appointed directly by the Appointing Authority, and for thepossibility of his/her removal by the same authority “for good reason”. Under theMilitary Order the accused may retain the services of a civilian attorney of his ownchoosing, but that attorney has to satisfy a number of requirements, including beingdetermined eligible for access to classified information,signing confidentialityagreements regarding the procedures and the cases he or she is involved with, traveling toGuantánamo at his own expenses, and agreeing not to leave the base withoutauthorization. In addition, certain information and evidence may be kept from the civilianlawyer and he or she may be excluded from the hearing for reasons of national security.All of these requirements imperil the right to a fair trial under article 14(1) of ICCPR andspecific “minimum guarantees” set forth in article 14(3)(b) and (d): to be allowed toadequately prepare one’s defense, with the assistance of counsel of one’s own choosing,and to test evidence adduced against one. They further clearly violate the Basic Principleson the Role of Lawyers40.
36.
The right adequately to prepare one’s defence (ICCPR, art. 14(3) (b) and the
Basic Principles on the Role of Lawyers)41, which includes access to documents andother evidence and to examine witnesses against oneself and have witnesses examined onone’s behalf is not guaranteed, since the Military Order provides that “[t]he Accusedmay obtain witnesses and documents for the Accused's defense, to the extent necessaryand reasonably available as determined by the Presiding Officer”.42The grounds fordenying the accused and the defence counsel of his choice access to “protectedinformation” remain excessively broad also under Revised Military Commission OrderNo. 1 of August 2005, which brought some improvement to the Military Order of March2002 in this respect. However, by virtue of the Detainee Treatment Act of December2005 a United States Court of Appeals now has jurisdiction to assess whether thecommission provided the defendant a “full and fair trial”, and whether the admission ofevidence the accused has not seen was compatible with his right to a fair trial.Nonetheless, the Chairperson of the Working Group and the Special Rapporteur remain
E/CN.4/2006/120page 20highly concerned that the right adequately to prepare one’s defence is insufficientlyprotected in proceedings before military commissions.37.The Chairperson of the Working Group and the Special Rapporteur are also
concerned about the conditions under which information is obtained from detainees atGuantánamo Bay. They have been informed by former detainees that the power tomitigate the harsh conditions of detention is in the hands of interrogators and depends onthe degree of “cooperation” with them. Detainees are subjected to regular interrogationsand put under strong pressure to confess that they are members of Al-Qaeda and/or toincriminate other persons. The gathering of evidence in such conditions affects thecredibility of any charges brought against them or against other persons.38.The right to be tried without undue delay (ICCPR, art.14 (3) (c)) relates both to
the time by which the trial should commence and the time by which it should end43. Outof a total of more than 500 detainees presently held at Guantánamo Bay, fewer than 10have so far been referred to a military commission. The vast majority of the Guantánamodetainees have not been charged with an offence after several years of detention.44Asthey continue to be detained, the detainees’ right to be tried without undue delay is beingviolated.39.Concerning the right to a public hearing, the Military Order authorizes the court,
for unspecified “national security” reasons, to conduct trials in secret.40.Finally, the decisions of the military commissions were previously only
reviewable by a panel appointed by the Secretary of Defense, with a final review beingavailable to the President of the United States. The Detainee Treatment Act of December2005 has given the United States Court of Appeals for the District of Columbiajurisdiction to determine the validity of any final decision rendered by a militarycommission. However, the scope of such review is very limited. The right to an appealbefore an independent tribunal, enshrined in article 14 (5) of ICCPR, is consequently alsoseverely restricted.
E/CN.4/2006/120page 21
III.
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
41.
The right not to be subjected to torture or cruel, inhuman or degrading treatment
or punishment is explicitly affirmed in article 7 of ICCPR. The Convention againstTorture defines torture, and details measures to be taken by States parties to prevent actsof torture and other cruel, inhuman or degrading treatment or punishment.42.Article 2 (2) of the Convention states that: “No exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political instability or anyother public emergency, may be invoked as a justification of torture.” The right to be freefrom torture and cruel, inhuman or degrading treatment or punishment is a non-derogableright, and therefore no exceptional circumstances may be invoked to justify derogation.The Human Rights Committee and the Committee against Torture have consistentlyemphasized the absolute character of the prohibition of torture and underlined that thisprohibition cannot be derogated from in any circumstances, even in war or while fightingterrorism.4543.The prohibition of torture and “outrages upon personal dignity, in particular
humiliating and degrading treatment” is also contained in common article 3 of theGeneva Conventions of 1949, to which the United States is a party. Moreover, theprohibition of torture is part ofjus cogens. Torture and other inhumane acts causingsevere pain or suffering, or serious injury to the body or to mental or physical health arealso prohibited under international criminal law and in certain instances can amount tocrimes against humanity and war crimes.4644.The prohibition of torture provided by the relevant international standards, in
particular the Convention against Torture, also encompasses the principle of non-refoulement (art. 3 ), the obligation to investigate alleged violations promptly and bringperpetrators to justice, the prohibition of incommunicado detention, and the prohibition ofthe use of evidence obtained under torture in legal proceedings.
E/CN.4/2006/120page 22
45.
In view of the foregoing, the United States has the obligation to fully respect the
prohibition of torture and ill-treatment. The Special Rapporteur on torture notes thereservations to the Convention and ICCPR made by the United States, indicating that itconsiders itself bound by the prohibition of cruel, inhuman and degrading treatment onlyto the extent that it means the cruel, unusual and inhumane treatment or punishmentprohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of theUnited States.47In this regard, he would like to recall the concerns of the relevant treatybodies, which deplored the failure of the United States to include a crime of tortureconsistent with the Convention definition in its domestic legislation and the broadness ofthe reservations made by the United States.48A. Lack of clarity/confusing rules
46.
Beginning in 2001, the Administration of the United States, while officially
reiterating its adherence to the absolute prohibition of torture,49has put in place a numberof policies that effectively weaken the prohibition. A concrete example is thememorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney General forthe Office of Legal Council at the Department of Justice and now federal judge, toAlberto Gonzales, then Counsel to the President of the United States and now AttorneyGeneral, which attempts to significantly narrow the definition of torture and claims thatthe necessity of self-defence can justify violations of the law prohibiting the use oftorture.50The Special Rapporteur notes that, as indicated in the response by the UnitedStates Government to the questionnaire of 21 October 2005, this memorandum wassuperseded by a Department of Justice memorandum dated 30 December 2004.47.However, several subsequent internal Department of Defense memoranda have
sought to widen the boundaries of what is permissible in terms of “counter- resistancetechniques” (see also section B below). On 16 April 2003, a memorandum which iscurrently in force was issued, authorizing 24 specific techniques. Its introduction statesthat “US Armed Forces shall continue to treat detainees humanely and, to the extent
E/CN.4/2006/120page 23appropriate and consistent with military necessity, in a manner consistent with theprinciples of the Geneva Conventions.”51This formulation is ambiguous in that it impliesthat military necessity may override the principles of the Geneva Conventions. In thiscontext, the Special Rapporteur also notes that in its reply to the questionnaire the UnitedStates exclusively uses the term “torture” and makes no reference to “cruel, inhuman anddegrading treatment and punishment”.48.The debate in the Senate on 5 October 2005 is telling.52Senator McCain,
describing the confusion that exists regarding authorized and unauthorized interrogationtechniques, said: “What this also means is that confusion about the rules becomesrampant again. We have so many differing legal standards and loopholes that our lawyersand generals are confused. Just imagine our troops serving in prison in the field.”53TheSpecial Rapporteur welcomes that the acceptance made on 15 December 2005 byPresident Bush of the McCain amendment to the Department of Defense AppropriationsBill prohibiting cruel, inhuman and degrading treatment or punishment (CIDT) withregard to persons kept in detention by the Department of Defense and in the custody orcontrol of the United States Government worldwide, thereby clarifying the confusingrules and codifying the prohibition of CIDT.54He also considers a significant progressthe failure of the attempts of Vice-President Cheney and CIA Director Goss to explicitlyexempt the CIA from the legal prohibition of CIDT.B. Interrogation techniques
49.
Following the ambiguous interpretations of what constitutes torture and ill-
treatment detailed in Section A, the following interrogation techniques, which clearlywent beyond earlier practice (as contained in Army Field Manual FM 34-52), wereapproved by the Secretary of Defense on 2 December 2002.••
“The use of stress positions (like standing) for a maximum of four hours;Detention in isolation up to 30 days;
E/CN.4/2006/120page 24•••••••
The detainee may have a hood placed over his head during transportation andquestioning;Deprivation of light and auditory stimuli;Removal of all comfort items;Forced grooming (shaving of facial hair, etc);Removal of clothing;Interrogation for up to 20 hours andUsing detainees’ individual phobias (such as fear of dogs) to induce stress.”55After having rescinded the above memorandum on 15 January 200556, the
50.
Secretary of Defense on 16 April 2003 authorised the following techniques which remainin force57:•••••
“B. Incentive/Removal of Incentive i.e. comfort items;S. Change of Scenery Down might include exposure to extreme temperatures anddeprivation of light and auditory stimuli;U. Environmental Manipulation: Altering the environment to create moderatediscomfort (e.g. adjusting temperature or introducing an unpleasant smell).V. Sleep Adjustment; Adjusting the sleeping times of the detainee (e.g. reversingsleep cycles from night to day) This technique is not sleep deprivation.X. Isolation: Isolating the detainee from other detainees while still complyingwith basic standards of treatment.”
51.
These techniques meet four of the five elements in the Convention definition of
torture (the acts in question were perpetrated by government officials; they had a clearpurpose, i.e. gathering intelligence, extracting information; the acts were committedintentionally; and the victims were in a position of powerlessness). However, to meet theConvention definition of torture, severe pain or suffering, physical or mental, must beinflicted. Treatment aimed at humiliating victims may amount to degrading treatment orpunishment, even without intensive pain or suffering. It is difficult to assess in abstracto
E/CN.4/2006/120page 25whether this is the case with regard to acts such as the removal of clothes. However,stripping detainees naked, particularly in the presence of women and taking into accountcultural sensitivities, can in individual cases cause extreme psychological pressure andcan amount to degrading treatment, or even torture. The same holds true for the use ofdogs, especially if it is clear that an individual phobia exists.58Exposure to extremetemperatures, if prolonged, can conceivably cause severe suffering.52.On the interviews conducted with former detainees, the Special Rapporteur
concludes that some of the techniques, in particular the use of dogs, exposure to extremetemperatures, sleep deprivation for several consecutive days59and prolonged isolationwere perceived as causing severe suffering.60He also stresses that the simultaneous useof these techniques is even more likely to amount to torture. The Parliamentary Assemblyof the Council of Europe also concluded that many detainees had been subjected to ill-treatment amounting to torture, which occurred systematically and with the knowledgeand complicity of the United States Government.61The same has been found by LordHope of Craighead, member of the United Kingdom’s House of Lords, who stated that“some of [the practices authorized for use in Guantánamo Bay by the United Statesauthorities] would shock the conscience if they were ever to be authorized for use in ourown country”.62C. Conditions of detention53.
Whereas it is conceivable that in the beginning the conditions of detention put in
place were determined for reasons of order and security, they then seem to have beenused to “counter resistance” and to cause stress.63Moreover, they were closely linkedwith investigation techniques.64There is plentiful evidence indicating that policies aimedat forcing detainees to cooperate such as withholding of clothes or of hygienic products,permanent light in the cells,65no talking,66cultural and religious harassment,67sensorydeprivation, intimidation, and the deliberate uncertainty generated by the indeterminatenature of confinement and the denial of access to independent tribunals, were used andled to serious mental health problems68. Moreover, prolonged detention in Maximum
E/CN.4/2006/120page 26Security Units clearly had the effect of putting pressure on detainees.69Reports indicatethat although 30 days of isolation was the maximum period permissible, detainees wereput back in isolation after very short breaks, so that they were in quasi-isolation for up to18 months.70According to the jurisprudence of the Human Rights Committee, prolongedsolitary confinement and similar measures aimed at causing stress violate the right ofdetainees under article 10 (1) ICCPR to be treated with humanity and with respect for theinherent dignity of the human person, and might also amount to inhuman treatment inviolation of article 7 ICCPR.71D. Use of excessive violence
54.
There are recurrent reports of three contexts in which excessive force was
routinely used: during transportation,72with regard to operations by the “Initial ReactionForces” (IRF), and by force-feeding during hunger strikes. The last is briefly dealt with insection V on the right to health. According to reports by the defence counsels, some ofthe methods used to force-feed definitely amounted to torture.73In the absence of anypossibility of assessing these allegations in situ by means of private interviews withdetainees subjected to forced feeding, as well as with doctors, nurses and prison guards,the allegations, which are well substantiated, must be held to be accurate. Treatmentduring transport and IRF operations is documented by photo74and video material.75These pictures indicate that during transport and IRF operations, detainees shackled,chained, hooded, forced to wear earphones and goggles. They also show beating, kicking,punching, but also stripping and force shaving by IRF where detainees resisted, whichhave been corroborated by testimonies of former detainees.76The Special Rapporteurconsiders that such treatment amounts to torture, as it inflicts severe pain or suffering onthe victims for the purpose of intimidation and/or punishment.E. Transfer, extraordinary rendition, non-refoulement
55.
There have been consistent reports about the practice of rendition and forcible
return of Guantánamo detainees to countries where they are at serious risk of torture. An
E/CN.4/2006/120page 27example is the transfer of Mr. Al Qadasi to Yemen in April 2004. He has since beenvisited by his lawyer and international NGOs. According to his lawyer, he was notwarned about his imminent return to Yemen and therefore had no possibility to appeal. Inearly April he received an injection against his will, which led to loss of consciousnessand hallucinations. When he woke up several days later, he found himself in prison inSana’a , where he alleges he was been beaten and deprived of food.77On the basis of theinformation available to him, the Special Rapporteur takes the view that the United Statespractice of “extraordinary rendition” constitutes a violation of article 3 of the Conventionagainst Torture and article 7 of ICCPR.78F. Lack of impartial investigation/impunity
56.
As noted elsewhere in this report, detainees did not have access to judicial
procedures for prolonged periods. Investigations into allegations of torture or CIDT wereconducted by different parts of the executive branch,79and lacked impartiality. Noindependent judicial investigation seems to have taken place into any allegations oftorture or ill-treatment, a clear violation of international minimum standards.Consequently, no one was brought to justice for having committed acts of torture.80It isof concern that there appear to have been attempts to ensure impunity for perpetrators oftorture or ill-treatment.81The Special Rapporteur takes the view that the lack of anyindependent investigation into the various allegations of torture and ill-treatement atGuantánamo Bay amount to a violation of the obligations of the United States underarticles 12 and 13 of the Convention against Torture. He therefore agrees with theEuropean Parliament’s call on the United States administration to “allow an impartial andindependent investigation into allegations of torture and mistreatment for all personsdeprived of their liberty in US custody”.82IV. FREEDOM OF RELIGION OR BELIEF AND RELIGIOUS INTOLERANCEA. Applicable international standards
E/CN.4/2006/120page 2857.The right to freedom of religion or belief is protected by article 18 of ICCPR and the
1981 United Nations Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief. In its general comment No. 22, the HumanRights Committee interprets article 18 to the effect that “persons already subject to certainlegitimate constraints, such as prisoners, continue to enjoy their rights to manifest theirreligion or belief to the fullest extent compatible with the specific nature of the constraint.”83A person deprived of his or her liberty cannot be deprived of his or her right to freedom orreligion or belief. These standards must be applied to every person, regardless of theirreligion or belief, and in all detention facilities.8458.Article 18 (3) ICCPR provides that “[f]reedom to manifest one's religion or beliefs
may be subject only to such limitations as are prescribed by law and are necessary to protectpublic safety, order, health, or morals or the fundamental rights and freedoms of others.”85On these limitations, the Committee “observes that paragraph 3 of article 18 is to be strictlyinterpreted: restrictions are not allowed on grounds not specified there, even if they would beallowed as restrictions to other rights protected in the Covenant, such as national security.”86Moreover, under article 4 of ICCPR, the right to freedom of religion or belief may in nocircumstances be subject to derogation.59.Finally, the Third and Fourth Geneva Conventions oblige parties to respect the
religion and religious practices of persons deprived of their liberty in the context of an armedconflict, including prisoners of war, interned persons and other types of detainees. Thisincludes the freedom to practise one’s religion, the access to clergy, and the prohibition ofdiscrimination on the basis of religion.87B. Reported allegations
60.
The review of a number of official documents and reports as well as information
obtained on the basis of interviews reveal that certain interrogation techniques that wereespecially degrading for members of certain religions were authorized by the United Statesauthorities.88Other treatments which may have been specifically designed to offend the
E/CN.4/2006/120page 29religious sensitivities of the detainees, were repeatedly used by those involved in thecustody, interrogation and treatment of detainees (e.g. use of female interrogators, whoperformed, inter alia, “lap dances during interrogations”89). It was also reported that thesetechniques were used before prayer times and that in some cases, detainees were not allowedto wash themselves before and therefore were not able to pray.61.The list of officially approved interrogation techniques in force today90allows for the
removal of religious items (e.g. the Holy Koran). This constitutes an impermissiblelimitation on the right to freedom of religion or belief of detainees.62.There was particular concern at reports of possible mishandling of religious objects,
such as the Holy Koran. The Special Rapporteur on freedom of religion or belief sent acommunication on this matter to the Government of the United States on 23 May 2005. TheGovernment reply of 18 August 2005 provided detailed information on the investigationsthat were conducted following these allegations, as well as on the existing measures andguidelines for the personnel of the detention facilities. As a result of their investigations, theGovernment indicated that it had identified five confirmed cases of mishandling of the HolyKoran by guards and interrogators, either intentionally or unintentionally, including kickingand stepping on the Holy Koran.9163.A number of detainees have alleged that they were subjected to forced grooming,
including shaving of beards, heads and eyebrows.64.Further concerns were raised by the removal of a military Muslim cleric from his
position at Guantánamo Bay. He later was arrested on suspicion of espionage and held insolitary confinement for 76 days. It has been alleged that he has not been replaced, leavingthe Muslim detainees unattended, in violation of the Standard Minimum Rules for theTreatment of Prisoners.9265.Finally, there are also concerns about reports that the United States Government has,
either implicitly or explicitly, encouraged or tolerated the association of between Islam and
E/CN.4/2006/120page 30terrorism, for example, by interrogating detainees on the extent of their faith in Islamicteachings.V.THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OFHEALTH
66.
The right to health derives from the dignity of the human person and is reflected
in the following international instruments relevant in the current situation: article 25(1) ofthe Universal Declaration of Human Rights, article 12 of the International Covenant onEconomic, Social and Cultural Rights (ICESCR), article 5(e)(iv) of the InternationalConvention on the Elimination of All Forms of Racial Discrimination and article 24 ofthe Convention on the Rights of the Child.93Although the United States has ratifiedneither ICESCR nor the Convention on the Rights of the Child, it is a signatory of bothand therefore “is obliged to refrain from acts which would defeat the object and purpose”of either treaty.94The United States is also a Contracting Party to the World HealthOrganization, and thus has accepted the principle that the “enjoyment of the highestattainable standard of health is one of the fundamental rights of every human being.”9567.The mandate of the Special Rapporteur covers reporting on the status of the
realization of the right to health “throughout the world”,96and States are called upon tocooperate fully with the Special Rapporteur in the implementation of this mandate,97paying particular attention to the health of vulnerable groups.98The mandate of theSpecial Rapporteur, therefore, extends to alleged violations of the right to health inGuantánamo Bay.68.In addition to States having duties arising from the right to health, health
professionals also have some right-to-health responsibilities deriving from internationalhuman rights law.9969.The right to health includes the right to timely and appropriate health care, as well
as to the underlying determinants of health, such as safe drinking water and adequate
E/CN.4/2006/120page 31food and sanitation.100International human rights instruments also impose specificobligations on States to provide prisoners with healthy living conditions and qualityhealth care, including mental health care.10170.The Special Rapporteur on the right to health has received serious and credible
reports of violations of the right to health – both health care and the underlyingdeterminants of health – at Guantánamo Bay.102The reports allege, inter alia, that (i) theconditions of confinement have had devastating effects on the mental health of thedetainees; (ii) provision of health care has been conditioned on cooperation withinterrogators; (iii) health care has been denied, unreasonably delayed and inadequate; (iv)detainees have been subjected to non-consensual treatment, including drugging and force-feeding; and (v) health professionals systematically violate professional ethical standards,precluding the provision of quality health care for detainees. Although all theseallegations are serious, given the limited length of this report, the Special Rapporteur willconsider two issues: mental health, and the ethical responsibilities of health professionals,including those arising from force-feeding.A. Mental health
71.
Reports indicate that the treatment of detainees since their arrests, and the
conditions of their confinement, have had profound effects on the mental health of manyof them.103The treatment and conditions include the capture and transfer of detainees toan undisclosed overseas location, sensory deprivation and other abusive treatment duringtransfer; detention in cages without proper sanitation and exposure to extremetemperatures; minimal exercise and hygiene; systematic use of coercive interrogationtechniques; long periods of solitary confinement; cultural and religious harassment;denial of or severely delayed communication with family; and the uncertainty generatedby the indeterminate nature of confinement and denial of access to independenttribunals.104These conditions have led in some instances to serious mental illness, over350 acts of self-harm in 2003 alone, individual and mass suicide attempts andwidespread, prolonged hunger strikes.105The severe mental health consequences are
E/CN.4/2006/120page 32likely to be long term in many cases, creating health burdens on detainees and theirfamilies for years to come.106B. Ethical obligations of health professionals, including in relation to force-feeding
72.
In his reports, the Special Rapporteur has emphasized that health professionals
play an indispensable role in promoting, protecting and fulfilling the right to health.107Nonetheless, in the past, some health professionals participated, often under duress, inviolations of the right to health and other human rights.108In response to these abuses,international human rights instruments have addressed the conduct of healthprofessionals. ICCPR, for example, states that “no one shall be subjected without his freeconsent to medical or scientific experimentation”.109Further, the Human RightsCommittee has invited States parties to report on the extent to which they apply theUnited Nations Principles of Medical Ethics relevant to the Role of Health Personnel,particularly Physicians, in the Protection of Prisoners and Detainees against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment adopted by GeneralAssembly resolution 37/194 of 18 December 1982.11073.The United Nations Principles of Medical Ethics apply to all health professionals.
They state that it is a contravention of medical ethics for health personnel (a) to be in anyrelationship with detainees “the purpose of which is not solely to evaluate, protect orimprove their physical and mental health”, (b) to use their knowledge and skills to assistin the interrogation of detainees “in any manner that may adversely affect physical ormental health”, or (c) to certify the fitness of detainees for any “treatment or punishmentthat may adversely affect their physical or mental health”. The United Nations Principlesalso state that there may be no derogation from these principles on any ground, includingpublic emergency.74.The World Medical Association adopted similar ethical standards in the
Declaration of Tokyo (1975), which was subsequently adopted by the American Medical
E/CN.4/2006/120page 33Association.111The Declaration prohibits doctors from participating in, or being presentduring, any form of torture or other form of cruel, inhuman or degrading treatment andfrom providing any knowledge to facilitate such acts. The doctor’s fundamental role is toalleviate distress and no other motive shall prevail against this purpose.112TheInternational Council of Nurses also condemns interrogation procedures harmful tomental and physical health, as well as inhumane treatment of detainees:113“Nurses havea fundamental responsibility to promote health, to prevent illness, to restore health and toalleviate suffering.”114These internationally agreed ethical norms are implied in, andform an essential part of, the right to health. Compliance by health professionals withsuch ethical standards is essential to realizing the right to health.75.The Special Rapporteur has received reports, many confirmed by investigations of
the United States military,115that health professionals in Guantánamo Bay havesystematically violated widely accepted ethical standards set out in the United NationsPrinciples of Medical Ethics and the Declaration of Tokyo, in addition to well-establishedrules on medical confidentiality. Alleged violations include: (a) breaching confidentialityby sharing medical records or otherwise disclosing health information for purposes ofinterrogation;116(b) participating in, providing advice for or being present duringinterrogations;117and (c) being present during or engaging in non-consensual treatment,including drugging and force-feeding.118In sum, reports indicate that some healthprofessionals have been complicit in abusive treatment of detainees detrimental to theirhealth. Such unethical conduct violates the detainees’ right to health, as well as the dutiesof health professionals arising from the right to health.76.A report of the International Committee of the Red Cross indicates that the
“apparent integration of access to medical care within the system of coercion meant thatinmates were not cooperating with the doctors. Inmates learn from their interrogatorsthat they have knowledge of their medical histories and the result is that prisoners nolonger trust the doctors”.119The Special Rapporteur is concerned that the informationdetainees disclose to health professionals has been used to punish and coerce, andtherefore detainees have learned that they cannot trust health professionals. As a result,
E/CN.4/2006/120page 34detainees may not seek health care or, if they do, may not disclose to health professionalsall information necessary to receive adequate and appropriate health care. In the contextof the hunger strikes, a trusting relationship between the detainee and the healthprofessional is essential for the health professional to provide health information andadvice to the hunger striker consistent with ethical principles.77.The United States Department of Defense has promulgated Medical Program
Principles that parallel the United Nations Principles of Medical Ethics, yet differsignificantly in several respects. Most importantly, the United States Principles applyonly to health professionals in a “professional provider-patient treatment relationship”.120Consistent with this role distinction, the United States acknowledges that psychiatristsand psychologists have participated in Behavioural Science Consultation Teams, whichprovide expertise for interrogations, but justifies their participation on the grounds thatthese health professionals are not in provider-patient relationships with detainees. Itcontends, moreover, that the purpose of such Teams is to assist “in conducting safe, legal,ethical and effective interrogations”.12178.Interrogation techniques that have been approved and used at Guantánamo Bay,
however, are not consistent with the objective of safe, legal, ethical and effectiveinterrogations,122and they have adversely affected the mental health of detainees.Further, the United Nations Principles and other codes of ethics for health professionalsmake no distinctions based on the role of the health professional. Their premise is thatthe knowledge and skills of health professionals should not be used to the detriment ofhumans; the particular position the professional holds therefore is not relevant.123To theextent that health professionals “apply their knowledge and skills” to assist in any mannerwith interrogations that “mayadversely affect” (emphasis added) the physical or mentalhealth of the detainee, they violate professional ethics and the right to health ofdetainees.12479.Reports from Guantanamo Bay confirm that doctors and other health
professionals are participating in force-feeding detainees.125The force-feeding of hunger
E/CN.4/2006/120page 35strikers raises several distinct human rights issues. One issue concerns the manner inwhich detainees are force-fed, which is addressed in this report in the section ontorture.126Another issue concerns the ethics and legality of force-feeding, regardless ofhow it is undertaken, which the following remarks address only briefly given the severespace constraints.80.The Declarations of Tokyo and Malta prohibit doctors from participating in force-
feeding a detainee, provided the detainee is capable of understanding the consequences ofrefusing food.127This position is informed by the fundamental principle, which recursthroughout human rights law, of individual autonomy. As well as the World MedicalAssociation, the American Medical Association and many others have endorsed theDeclaration of Tokyo.128Additionally, during 2004, in the context of a hunger strike byPalestinian security detainees, the ICRC reported that its doctors will “urge the authoritiesnot to subject detainees to force-feeding”.129Further, some domestic courts havedecided, based on an individual’s right to refuse medical treatment, that a state may notforce feed a prisoner.130While some other domestic courts have taken a differentposition, it is not clear that they have all given due consideration to the relevantinternational standards.13181.According to the United States Government, Department of Defence policy
allows health professionals to force feed a detainee in Guantanamo Bay when the hungerstrike threatens his life or health.132However, the United States policy is inconsistentwith the principle of individual autonomy, the policy of the World Medical Associationand the American Medical Association, as well as the position of ICRC doctors (assignalled in the previous paragraph), some domestic courts, and many others.82.From the perspective of the right to health, informed consent to medical treatment
is essential,133as is its “logical corollary” the right to refuse treatment.134A competentdetainee, no less than any other individual, has the right to refuse treatment.135Insummary, treating a competent detainee without his or her consent – including force-
E/CN.4/2006/120page 36feeding – is a violation of the right to health, as well as international ethics for healthprofessionals.VII.A.83.CONCLUSIONS AND RECOMMENDATIONS
Conclusions
International human rights law is applicable to the analysis of the situation of
detainees in Guantánamo Bay. Indeed, human rights law applies at all times, evenduring situations of emergency and armed conflicts. The war on terror, as such,does not constitute an armed conflict for the purposes of the applicability ofinternational humanitarian law. The United States of America has not notified tothe Secretary-General of the United Nations or other States parties to the treatiesany official derogation from the International Covenant on Civil and PoliticalRights or any other international human rights treaty to which it is a party.84.The persons held at Guantánamo Bay are entitled to challenge the legality of
their detention before a judicial body in accordance with article 9 of ICCPR, and toobtain release if detention is found to lack a proper legal basis. This right iscurrently being violated, and the continuing detention of all persons held atGuantánamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.85.The executive branch of the United States Govenrment operates as judge,
prosecutor and defence counsel of the Guantánamo Bay detainees: this constitutesserious violations of various guarantees of the right to a fair trial before anindependent tribunal as provided for by article 14 of the ICCPR.86.Attempts by the United States Administration to redefine “torture” in the
framework of the struggle against terrorism in order to allow certain interrogationtechniques that would not be permitted under the internationally accepteddefinition of torture are of utmost concern. The confusion with regard to authorized
E/CN.4/2006/120page 37and unauthorized interrogation techniques over the last years is particularlyalarming.87.The interrogation techniques authorized by the Department of Defense,
particularly if used simultaneously, amount to degrading treatment in violation ofarticle 7 of ICCPR and article 16 of the Convention against Torture. If in individualcases, which were described in interviews, the victim experienced severe pain orsuffering, these acts amounted to torture as defined in article 1 of the Convention.Furthermore, the general conditions of detention, in particular the uncertaintyabout the length of detention and prolonged solitary confinement, amount toinhuman treatment and to a violation of the right to health as well as a violation ofthe right of detainees under article 10 (1) of ICCPR to be treated with humanity andwith respect for the inherent dignity of the human person.88.The excessive violence used in many cases during transportation, in
operations by the Initial Reaction Forces and force-feeding of detainees on hungerstrike must be assessed as amounting to torture as defined in article 1 of theConvention against Torture.89.The practice of rendition of persons to countries where there is a substantial
risk of torture, such as in the case of Mr. Al Qadasi, amounts to a violation of theprinciple of non-refoulement and is contrary to article 3 of the Convention againstTorture and Article 7 of ICCPR.90.The lack of any impartial investigation into allegations of torture and ill-
treatment and the resulting impunity of the perpetrators amount to a violation ofarticles 12 and 13 of the Convention against Torture.91.There are reliable indications that, in different circumstances, persons
detained in the Guantánamo Bay detention facilities have been victims of violationsof the right to freedom of religion or belief, contrary to article 18 of ICCPR and the
E/CN.4/2006/120page 381981 Declaration. It is of particular concern that some of these violations have evenbeen authorized by the authorities. In addition, some interrogation techniques arebased on religious discrimination and are aimed at offending the religious feelings ofdetainees.92.The totality of the conditions of their confinement at Guantánamo Bay
constitute a right-to-health violation because they derive from a breach of duty andhave resulted in profound deterioration of the mental health of many detainees.93.There are also serious concerns about the alleged violations of ethical
standards by health professionals at Guantánamo Bay and the effect that suchviolations have on the quality of health care, including mental health care, thedetainees are receiving.94.The treatment of the detainees and the conditions of their confinement has
led to prolonged hunger strikes. The force-feeding of competent detainees violatesthe right to health as well as the ethical duties of any health professionals who maybe involved.B.95.Recommendations
Terrorism suspects should be detained in accordance with criminal procedure
that respects the safeguards enshrined in relevant international law. Accordingly, theUnited States Government should either expeditiously bring all Guantánamo Baydetainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release themwithout further delay. Consideration should also be given to trying suspected terroristsbefore a competent international tribunal.96.The United States Government should close the Guantánamo Bay detention
facilities without further delay. Until the closure, and possible transfer of detainees topre-trial detention facilities on United States territory, the Government should refrain
E/CN.4/2006/120page 39from any practice amounting to torture or cruel, inhuman or degrading treatment orpunishment, discrimination on the basis of religion, and violations of the rights tohealth and freedom of religion. In particular, all special interrogation techniquesauthorized by the Department of Defense should immediately be revoked.97.The United States Government should refrain from expelling, returning,
extraditing or rendering Guantánamo Bay detainees to States where there aresubstantial grounds for believing they would be in danger of being tortured.98.The United States Government should ensure that every detainee has the right
to make a complaint regarding his treatment and to have it dealt with promptly and, ifrequested, confidentially. If necessary, complaints may be lodged on behalf of thedetainee or by his legal representative or family.99.The United States Government should ensure that all allegations of torture or
cruel, inhuman or degrading treatment or punishment are thoroughly investigated byan independent authority, and that all persons found to have perpetrated, ordered,tolerated or condoned such practices, up to the highest level of military and politicalcommand, are brought to justice.100.The United States Government should ensure that all victims of torture or cruel,
inhuman or degrading treatment or punishment are provided with fair and adequatecompensation, in accordance with article 14 of the Convention against Torture,including the means for as full a rehabilitation as possible.101.The United States Government should provide the personnel of detention
facilities with adequate training, in order to ensure that they know that it is their dutyto respect international human rights standards for the treatment of persons indetention, including the right to freedom of religion, and to enhance their sensitivity ofcultural issues.
E/CN.4/2006/120page 40102.The United States Government should revise the United States Department of
Defense Medical Program Principles to be consistent with the United Nations Principlesof Medical Ethics.103.The United States Government should ensure that the authorities in
Guantánamo Bay do not force-feed any detainee who is capable of forming a rationaljudgement and is aware of the consequences of refusing food. The United StatesGovernment should invite independent health professionals to monitor hunger strikers,in a manner consistent with international ethical standards, throughout the hungerstrike.104.All five mandate holders should be granted full and unrestricted access to the
Guantánamo Bay facilities, including private interviews with detainees.
E/CN.4/2006/120page 41Annex 1NotesThese interviews were carried out with the consent of the Governments concerned (France, Spain and theUK). Similar request have been addressed by the five mandate holders to Afghanistan, Morocco andPakistan in order to meet with former detainees currently residing in the three respective countries. Noresponse has been received so far.Response of the United States of America, dated October 21, 2005 to the inquiry of the SpecialRapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 52. For more updatedinformation, see the fact sheets of the US Department of Defense (available athttp://www.defenselink.mil/news/Aug2005/d20050831sheet.pdf>), according to which, as of 31 August2005, there were four “cases where detainees are charged and the case is underway”, with another eightsubject to the president’s jurisdiction under his November 2001 military order. According to further factsheets posted by the Department of Defense on its web site, in December 2005 five further detainees had“charges … referred to a military commission”, bringing the total of detainees referred to a militarycommission to nine as of the end of December 2005.Declaration annexed to Security Council resolution 1456 (2003). Relevant General Assembly resolutionson this issue are 57/219, 58/187 and 59/191.The most recent resolution adopted by the Security Council is1624 (2005), in which the Security Council reiterated the importance of upholding the rule of law andinternational human rights law while countering terrorism.Statement delivered by the Secretary-General at the Special Meeting of the Counter-Terrorism Committeewith Regional Organizations, New York, 6 March 2003,http://www.un.org/apps/sg/sgstats.asp?nid=275.Speech delivered by the United Nations High Commissioner for Human Rights at the BiennialConference of the International Commission of Jurists (Berlin, 27 August 2004),http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet.675431
2
See Commission on Human Rights resolutions 2003/68, 2004/87 and 2005/80.
The United States has entered reservations, declarations and understandings with regard to a number ofprovisions of these treaties. Most relevant are the reservations to article 7 of ICCPR and article 16 of theConvention against Torture, as noted in paragraph 45."The United States Position on the Relation of Customary International Law to the 1977 ProtocolsAdditional to the 1949 Geneva Conventions", Remarks of Michael J. Matheson, Deputy Legal Adviser,United States Department of State, in The Sixth Annual American Red Cross-Washington College of LawConference on International Humanitarian Law: "A Workshop on Customary International Law and the1977 Protocols Additional to the 1949 Geneva Conventions",The American University Journal ofInternational Law and Policy,Vol. 2, No. 2 (Fall 1987), pp. 419-431.98
Human Rights Committee, General Comment No. 31 (2004), CCPR/C/21/Rev.1/Add.13, para. 10.
10
International Court of Justice,Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territories,Advisory Opinion, I.C.J. Reports 2004 (9 July 2004).
Ibid, para. 111. The ICJ reached the same conclusion with regard to the applicability of the Conventionon the Rights of the Child (para. 113). As far as the Convention against Torture is concerned, articles 2(1)and 16(1) refer to each State party’s obligation to prevent acts of torture “in any territory under itsjurisdiction”. Accordingly, the territorial applicability of the Convention to United States activities at
11
E/CN.4/2006/120page 42Guantánamo Bay is even less disputable than the territorial applicability of ICCPR, which refers (article2(1)) to “all individuals within its territory and subject to its jurisdiction”.12131415
Human Rights Committee, General Comment No. 29 (2001), CCPR/C/21/Rev.1/Add.11, para. 3.Ibid.Ibid, para. 15-16.
International Court of Justice,Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,I.C.J. Reports 1996,p. 226, at p. 240 (8 July 1996), para. 25.International Court of Justice,Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territories, Advisory Opinion,I.C.J. Reports 2004 (9 July 2004), para 106.The Commission on Human Rights resolutions governing the Working Group mandate it “to investigatecases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards”(1991/42, 1997/50 and 2003/31). In its report to the Commission on Human Rights at its fifty-ninth session,the Working Group gave a Legal Opinion regarding deprivation of liberty of persons detained atGuantánamo Bay (E/CN.4/2003/8, paras. 61 to 64). On 8 May 2003, the Working Group issued its OpinionNo. 5/2003 concerning the situation of four men held at Guantánamo Bay, finding that it constitutedarbitrary detention. The Working Group also reflected developments in United States litigation relating toGuantánamo Bay in its report to the Commission in 2005 (E/CN.4/2005/6, para. 64).
16
17
18
This Military Order has been complemented by several subsequent Military Commissions Orders, i. a.Military Commission Order No. 1 of 21 March 2002, which was superseded on 31 August 2005 by theRevised Military Commission Order No. 1, Military Commission Order No. 2 of 21 June 2003(subsequently revoked), Military Commission Order No. 3 of 5 February 2004 (superseded by MilitaryCommission Order No. 3 of 21 September 2005), Military Commission Order No. 4 of 30 January 2004(subsequently revoked), Military Commission Order No. 5 of 15 March 2004, and Military CommissionOrder No. 6 of 26 March 2004: reference to the “Military Order” in the text should be read as referring tothe series of Military Commissions Orders.Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR SpecialRapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 3.
19
See Official Statement of the International Committee of the Red Cross (ICRC) dated 21 July 2005regarding “The relevance of IHL in the context of terrorism” (available at<http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism-ihl-210705?OpenDocument>): “Internationalhumanitarian law (the law of armed conflict) recognizes two categories of armed conflict: international andnon-international. International armed conflict involves the use of armed force by one State against another.Non-international armed conflict involves hostilities between government armed forces and organizedarmed groups or between such groups within a state. When and where the "global war on terror" manifestsitself in either of these forms of armed conflict, international humanitarian law applies, as do aspects ofinternational human rights and domestic law. For example, the armed hostilities that started in Afghanistanin October 2001 or in Iraq in March 2003 are armed conflicts. When armed violence is used outside thecontext of an armed conflict in the legal sense or when a person suspected of terrorist activities is notdetained in connection with any armed conflict, humanitarian law does not apply. Instead, domestic laws,as well as international criminal law and human rights govern. […] The designation "global war on terror"does not extend the applicability of humanitarian law to all events included in this notion, but only to thosewhich involve armed conflict.”21
20
Third Geneva Convention relative to the Treatment of Prisoners of War, art. 118, and Fourth GenevaConvention relative to the Treatment of Civilian Persons, art. 133(1).
E/CN.4/2006/120page 43
222324
Third Geneva Convention, art. 119 (5), and Fourth Geneva Convention, art. 133.Third Geneva Convention, art. 17(3), and Fourth Geneva Convention, art. 31.
For the circumstances of the arrest and transfer to Guantánamo Bay of the six men see the decision of theHuman Rights Chamber for Bosnia and Herzegovina of 11 October 2002 in case no. CH/02/8679 et al.,Boudellaa & Others v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,available atwww.hrc.baSee also the report of Mr. Amir Pilov of 10 August 2004 on his visit to Guantanamo Bay from26 to 29 July 2004 as official representative of Bosnia and Herzegovina in accordance with the respectiveorder of the Human Rights Chamber.See,Rasul v. Bush,542 U.S. 446, 124 S.Ct. 2686 (2004).
2526
See US District Court for the district of Columbia, decision of 31 January 2005In re GuantanamoDetainees Cases,355 F. Supp. 2d 443, at 468-478.Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR SpecialRapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 47.
27
28
The CSRT and ARB rules do not provide detainees with the right to receive legal assistance, but provideinstead for a “personal representative” with no legal training required and no duty of confidentialitywhatsoever. See also US District Court for the district of Columbia, decision of 31 January 2005In reGuantanamo Detainees Cases,355 F. Supp. 2d 443, at 468-478, where the District Court says (at 472) that“there is no confidential relationship between the detainee and the Personal Representative, and thePersonal Representative is obligated to disclose to the tribunal any relevant inculpatory information heobtains from the detainee. Id. Consequently, there is inherent risk and little corresponding benefit shouldthe detainee decide to use the services of the Personal Representative.”See supra note 2.
2930
According to the information available, it appears that already in 2003 the United States Department ofDefense determined that the 15 Uighurs did not present a threat to the security of the United States. In2004, the Department of Defense determined that the 15 Uighurs do not have any intelligence value for theUnited States and should be released. According to the information provided by US lawyers acting onbehalf of the Uighur detainees, in March 2005 the CSRT decided that six of the Uighurs were not “enemycombatants”. The Response of the United States to the Special Rapporteurs states that “arrangements areunderway” for the release of fifteen detainees determined not to be “enemy combatants” by the CSRT byMarch 2005 (Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHRSpecial Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, p. 47), whichcould be an indication that in fact all fifteen Uighurs have been found by the CSRT not to be “enemycombatants”. However, the United States neither intend to return the fifteen prisoners to the People’sRepublic of China, where it is feared that they would be at risk of being killed, tortured or ill-treated, norallow them to settle in the US. The existence of prisoners whose release poses problems because theyreasonably fear repatriation is acknowledged in the Response of the United States (p. 50). In the habeascorpus case brought by two of the Uighurs before the United States District Court for the District ofColumbia (Qassimv. Bush),the US Government first failed to inform the court and the detainees’ attorneysthat thehabeas corpuspetitioners had been found not to be “enemy combatants”. It then argued that it iscontinuing their detention on the basis of “the Executive’s necessary power to wind up war time detentionsin an orderly fashion” (Qassimv. Bush,Opinion Memorandum of 22 December 2005,2005 U.S. Dist.LEXIS 34618,para. 4). The District Court concluded that “[t]he detention of these petitioners has by nowbecome indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.” (Ibid., para. 8) Despitethis finding, the District Court concluded that it had no relief to offer, i.e. it could not order their release(Ibid., para. 16).
E/CN.4/2006/120page 44
31
Detainee Treatment Act of 2005, included in the Department of Defense Appropriations Act 2006,Section 1005.Ibid.,Section 1005 (2) (A), (B), and (C).
3233
See also article 9 (4):” Anyone who is deprived of his liberty by arrest or detention shall be entitled totake proceedings before a court, in order that that court may decide without delay on the lawfulness of hisdetention and order his release if the detention is not lawful.”
34
Principle No.5 of the Basic Principles on the independence of the Judiciary, endorsed by GeneralAssembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
35
Human Rights Committee, General Comment No. 13 (1984), para. 4, andKurbanov v. Tajikistan,Communication no. 1096/2002, Views of the Human Rights Committee of 6 November 2003, para. 7.6.General Comment No. 13, supra note 35, para. 4.Principle 10, Basic Principles on the Independence of the Judiciary (see supra note 34).See supra note 8.
3637
3839
General Comment No. 29, supra note 12, paras 10-11: “States parties may in no circumstance invokearticle 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms ofinternational law, for instance by taking hostages, by imposing collective punishments, through arbitrarydeprivations of liberty or by deviating from fundamental principles of fair trial, including the presumptionof innocence”.United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congresson the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September1990.Principle 1 and 5 as well as 16 and 21 of the Basic Principles on the Role of Lawyers (see note supra 40).
40
41
42
See Rule 100 of the List of Customary Rules of International Humanitarian Law, published as an annexto the ICRC Study on customary international law: “No one may be convicted or sentenced, exceptpursuant to a fair trial affording all essential judicial guarantees.”(http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf)4344
General Comment No. 13, supra note 13, para. 10.See supra note 2.
See, e.g., CCPR/CO/77/EST (Estonia), para. 8; CCPR/CO/76/EGY (Egypt), para. 16;CCPR/CO/75/YEM (Yemen), para. 18; CCPR/CO/75/NZL (New Zealand), para. 11; CCPR/75/MDA(Moldova), para. 8; CCPR/CO/74/SWE (Sweden), para. 12; CCPR/CO/73/UK (United Kingdom), para. 6;CAT/C/XXIX/Misc.4 (Egypt), para. 4; CAT/C/CR/28/6 (Sweden), para. 6 (b).Articles 6 (b) and (c) of the 1945 Charter of the Nuremberg International Military Tribunal; Principle IV(b) and (c) of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal andthe Judgment of the Tribunal; Articles 2 (b) and 5 (f) of the 1993 Statute of the International CriminalTribunal for the Former Yugoslavia; Articles 7 (1) (f) and 8 (2) (a) (ii) of the 1998 Rome Statute for theInternational Criminal Court.46
45
E/CN.4/2006/120page 45
47
See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1, 183and Vol.1, 286. Reservations to ICCPR athttp://www.ohchr.org/english/countries/ratification/4_1.htm"(3)That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degradingtreatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth,Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Reservations to ICCPR athttp://www.ohchr.org/english/countries/ratification/9.htm#reservations(1) That the United States considersitself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment orpunishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means thecruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or FourteenthAmendments to the Constitution of the United States. See Multilateral Treaties deposited with the SecretaryGeneral, Status as at 31 Dec. 2004. Vol. 1, 183 and Vol.1, 286.
48
Conclusions and Recommendations of the Committee against Torture : United States of America.15/05/2000. A/55/44,paras.175-180. "179. The Committee expresses its concern about: (a) The failure ofthe State party to enact a federal crime of torture in terms consistent with article 1 of the Convention;(b) The reservation lodged to article 16, in violation of the Convention, the effect of which is to limit theapplication of the Convention;[...] 180. The Committee recommends that the State party: (a) Although ithas taken many measures to ensure compliance with the provisions of the Convention, also enact a federalcrime of torture in terms consistent with article 1 of the Convention and withdraw its reservations,interpretations and understandings relating to the Convention;" and Concluding Observations of the HumanRights Committee: United States of America. 03/10/95. CCPR/C/79/Add.50; A/50/40,paras.266-304. "279.The Committee regrets the extent of the State party's reservations, declarations and understandings to theCovenant. It believes that, taken together, they intended to ensure that the United States has accepted onlywhat is already the law of the United States. The Committee is also particularly concerned at reservations toarticle 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the objectand purpose of the Covenant. […] 292. The Committee recommends that the State party review itsreservations, declarations and understandings with a view to withdrawing them, in particular reservations toarticle 6, paragraph 5, and article 7 of the Covenant."E.g. US President in a February 2002 memorandum reiterated the standard of “humane treatment” (seeChurch report p. 3); also: During a visit to Panama on 7 November 2005 President Bush said: “Our countryis at war, and our government has the obligation to protect the American people.[…] And we areaggressively doing that. […] Anything we do to that effort, to that end, in this effort, any activity weconduct, is within the law. We do not torture.” See at:http://www.whitehouse.gov/news/releases/2005/11/20051107.html(accessed on 8 December 2005), but formore ambiguous statements see also Amnesty International, “United States of America. Guantánamo andbeyond: The continuing pursuit of unchecked executive power,” AI Index: AMR 51/063/2005 (May 13,2005) and Human Rights Watch, Getting Away with torture? Command Responsibility for the U.S. Abuseof Detainees, Vol. 17, No. 1(G) (April 2005).
49
50
“For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure.Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injurysuch as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction butit also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stressdisorder. Additionally, such severe mental pain can arise only from the predicate acts listed on Section2340. Because the acts inflicting torture are extreme, there is significant range of acts that though theymight constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.[…] Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense couldprovide justifications that would eliminate any criminal liability.”Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on“Counter Resistance Techniques in the War on Terror”.
51
E/CN.4/2006/120page 46
5253
http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0
“Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Divisionat Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17months, he struggled to get answers from his chain of command to a basic question: What standards applyto the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads withCongress, asking us to take action to establish standards to clear up the confusion, not for the good of theterrorists but for the good of our soldiers and our country. […] The advantage of setting a standard forinterrogation based on the field manual is to cut down on the significant level of confusion that still existswith respect to which interrogation techniques are allowed. The Armed Services Committee has heldhearings with a slew of high-level Defense Department officials, from regional commanders to judgeadvocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearingswas what specific interrogation techniques are permitted, in what environments, with which DODdetainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's topminds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expectour enlisted men and women to do so? Confusion about the rules results in abuses in the field. We need aclear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That isnot just my opinion but that of many more distinguished military minds than mine.” To be found at:http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0.
See also Press Briefing with National Security Advisor Stephen Hadley on the McCain Amendment of15 December 2005 at:http://www.whitehouse.gov/news/releases/2005/12/20051215-5.html(last accessedon 21 December 2005): “As you know, our policy has been not to use cruel, inhuman or degradingtreatment at home or abroad. That has been our policy. The legislative agreement that we've worked outwith Senator McCain now makes that a matter of law, not just policy. And it makes it a matter of law thatapplies worldwide, at home and abroad.”55
54
Jerald Phifer to Commander of Joint Task Force 170, memorandum of 11 October 2002,, “Request forApproval of Counter-resistance Techniques,” which was attached to William J. Haynes II to Secretary ofDefense, memorandum of 27 November 2002, “Counter-resistance Techniques,” and approved bySecretary Rumsfeld on 2 December 2002 (http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf).Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on“Counter Resistance Techniques in the War on Terror”.Ibid., p. 1. See also overview given by the Executive Summary of the Church report (“ExecutiveSummary,” U.S. Department of Defense, available to the public since March 2005,http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf)
56
57
58
The technique of using dogs, as confirmed in various interviews with ex-Guantanamo Bay detainees, wasexplicitly authorised as part of the “First Special Interrogation Plan” (p. 13 and 14) - see in ArmyRegulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay,Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). See also point 12”“Using detainees individual phobias (such as fear of dogs) to induce stress” of the Jerald Phifer toCommander of Joint Task Force 170, memorandum, “Request for Approval of Counter-resistanceTechniques,” October 11, 2002, which was attached to William J. Haynes II to Secretary of Defense,memorandum, “Counter-resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeldon December 2, 2002available athttp://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf.Dept. of Defense, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, CubaDetention Facility, Army Regulation 15-6: Final Report (Apr. 1, 2005; amended Jun. 9, 2005; published
59
E/CN.4/2006/120page 47Jul. 14, 2005); also: “Whatwere the measures most difficult to cope with in your view? - Sleep deprivation.They were forcing us to change the cells, the boxes we were held in, for every 15 minutes. And that wasgoing on for three to four months. Every 15 minutes we were supposed to change. No sleep, nothing. Sosleep deprivation.”Interview with Airat Vakhitov on 18 November 2005 in London.606162
Cases of Moazzam Begg, Rustam Akhmiarov, Airat Vakhitov – interviews of 18 November 2005.Resolution 1433 of 26 April 2005, para. 7 ii.
Opinions of the Lords of Appeal for Judgment in the case A (FC) and others (FC) (Appellants) v.Secretary of State for the Home Department (Respondent) of 8 December 2005. Session 2005-06- UKHL71para. 126.63
“The ICRC feels that interrogators have too much control over the basic needs of detainees. That theinterrogators attempt to control the detainees through use of isolation. Mr. Cassard stated that theinterrogators have total control of the level of isolation in which the detainees were kept; the level ofcomfort items detainees can receive; and also the access of basic needs to the detainees.” DoD, ICRCMeeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003).Ibid.
6465
“Check into lowering the lights at night to help with sleeping.” DoD, General observations and meetingnotesinmemo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observations fromICRC concerning treatment of detainees (Jan. 21, 2002).
66
Detainees feel some rules, i.e. no talking, cause higher stress, and feel talking would help to releasestress.” DoD, General observations and meeting notesinmemo from Staff Judge Advocate to CommanderJoint Task Force 160, Initial observations from ICRC concerning treatment of detainees (Jan. 21, 2002).See also: “The detainees request that the “no talking rule” be lifted. 22 Jan 02: Approved in part as of thatdate. Detainees may carry on normal conversations.” DoD, memo from Staff Judge Advocate to file,Concerns voiced by the International Committee of the Red Cross (ICRC) on behalf of the detainees (Jan.24, 2002).See also Chapter IV of this report.See also Chapter V(1) of this report.
676869
“The ICRC concern is that the caged cells plus the maximum-security regime exerts too much pressureon detainees.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA toRecord (Oct. 9, 2003); see also: “Mr. Cassard continued with his report by stating that the MaximumSecurity Unit (MSU) has not changed since their last visit. According to Mr. Cassard, detainees are in MSUfor 30 days, released for a short period of time, and then put back into MSU for another 30 days. Mr.Cassard stated that this type of punishment is harsh and that some detainees are put in MSU at the requestof interrogators.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA toRecord (Oct. 9, 2003)See e.g. interview with Moazzam Begg of 18 November 2005.
7071
Human Rights Committee, General Comment No. 20 (1992), para 6; andPolay Campos v. Peru,Communication no. 577/1994, Views of the Human Rights Committee of 6 November 1997, para 8.4. Onthe extensive case law of the Human Rights Committee on conditions of detention see also ManfredNowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, 2nd revised edition, N.P.EngelPublisher, Kehl/Strasbourg/Arlington 2005, at pages 172 et seq. and 244 et seq.
E/CN.4/2006/120page 4872
See section 2 about authorized interrogation techniques; see also picture on cover of Michael Ratner andEllen Ray: “Guantanamo. What the World Should Know.” June 2004.
73
“They are being force-fed through the nose. The force-feeding happens in an abusive fashion as the tubesare rammed up their noses, then taken out again and rammed in again until they bleed. For a while tubeswere used that were thicker than a finger because the smaller tubes did not provide the detainees withenough food. The tubes caused the detainees to gag and often they would vomit blood. The force-feedinghappens twice daily with the tubes inserted and removed every time. Not all of the detainees on hungerstrike are in hospital but a number of them are in their cells, where a nurse comes and inserts the tubesthere.” Accounts given by Attorney Julia Tarver (28 October 2005). On the qualification of certain methodsof force-feeding as amounting to torture see, e.g., the judgment of the European Court of Human Rights inNevmerzhitsky v. Ukraine (Appl. No. 54825/00), para. 98.See also:http://www.thememoryhole.org/mil/gitmo-pows.htm.
7475
See Human Rights Watch,Getting Away with Torture? Report,available atwww.hrw.org/reports/2005/us0405/)page. 75 and footnote 306citingPaisley Dodds, “Guantánamo TapesShow Teams Punching, Stripping Prisoners,” Associated Press, February 1,2005.
“Recently-revealed videotapes of so-called “Immediate Reaction Forces” (or “Extreme Reaction Force”(ERF)) reportedly show guards punching some detainees, a guard kneeing a detainee in the head, tying oneto a gurney for questioning and forcing a dozen to strip from the waist down.” Human Rights Watch,Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees,vol. 17, No. 1(G)(April 2005), pag. 75citingPaisley Dodds, “Guantánamo Tapes Show Teams Punching, StrippingPrisoners,” Associated Press, February 1, 2005. or: “[I]f you said you didn’t want to go to interrogation youwould be forcibly taken out of the cell by the [Initial Reaction Force] team. You would be pepper-sprayedin the face which would knock you to the floor as you couldn’t breathe or see and your eyes would besubject to burning pain. Five of them would come in with a shield and smack you and knock you down andjump on you, hold you down and put the chains on you. And then you would be taken outside where therewould already be a person with clippers who would forcibly shave your hair and beard. Interrogators gavethe order for that to be done; the only way in which this would be triggered would be if you were in someway resisting interrogation, in some way showing that you didn’t want to be interrogated. Or if duringinterrogation you were non-cooperative then it could happen as well.” Center for Constitutional Rights,Statement of Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, “Detention in Afghanistan and GuantanamoBay”(Aug. 4, 2004), para290,available athttp://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf ; See also the Al Dossari incident reported by several NGOs and inthe book “Inside the Wire” by Erik Saar, a former Guantanamo Bay military intelligence interpreter.77
76
“He stayed there for 13 months in solitary confinement in an underground cell. He was routinely beatenand received only rotten food and was prevented from using the toilet. He was then temporarily transferredto Ta’iz prison, where he was also not provided food and had to rely on his family to feed him. In June2005 he was transferred back to Sana’a prison, where he is still held without being aware of any charges.”Allegation based on Declaration of Attorney Tina M. Foster of 17 November 2005.The same assessment was made by the Council of Europe’s Parliamentary Assembly, which found that“the United States has, by practicing “rendition” (removal of persons to other countries, without judicialsupervision, for purposes such as interrogation or detention), allowed detainees to be subjected to tortureand to cruel, inhuman or degrading treatment, in violation of the prohibition on non-refoulement”Resolution 1433 of 26 April 2005, para. 7 vii.
78
See also the response of the US Government to the questionnaire of 21 October 2005, which indicatedthat allegations were investigated by officials of the Department of Defense.
79
E/CN.4/2006/120page 4980
See also: Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse atGuantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). Ascan be seen from it, practically no action was taken in response to acts of inhuman or degrading treatmenteven if the practice was unauthorized.
E.g. a leaked FBI e-mail stated “If this detainee is ever released or his story made public in any way,DOD interrogators will not be held accountable because these torture techniques were done by the “FBI”interrogators. Email from Unknown to G. Bald, et.al, Re.: Impersonating FBI at GTMO (Dec. 5, 2003),available athttp://www.aclu.org/torturefoia/released/FBI_3977.pdf.European Parliament resolution on Guantanam. P 6_TA(2004)0050. At:http://www.europarl.eu.int/omk/sipade3?PUBREF=-//EP//NONSGML+TA+P6-TA-2004-0050+0+DOC+WORD+V0//EN&L=EN&LEVEL=0&NAV=S&LSTDOC=Y&LSTDOC=N.838482
81
Human Rights Committee, General Comment 22 (1993), CCPR/C/21/Rev.1/Add.4, para 8.
In her previous report to the General Assembly (A/60/399), the Special Rapporteur analyzed, in thecontext of her mandate, the international standards applicable to persons deprived of their liberty.ICCPR, Art. 18(3). See similarly, Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief, Art. 1(3) (Nov. 25, 1981).General Comment 22, supra note 83, para. 8.
85
8687
See, inter alia, article 3 common to the four Geneva Conventions: articles 34 and 35 of the Third GenevaConvention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of AdditionalProtocol I and articles 4 and 5 of Additional Protocol II.Techniques such as the use dogs were explicitly authorized as part of the “First Special InterrogationPlan” (p. 13 and 14) - see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations ofDetainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (TheSchmidt Report).
88
89
A technique that the Schmidt Report, supra note 88, found to be authorized (FM 34-52) and approved bySECDEF as mild, non-injurious physical touching. The same report found the rubbing of perfume to havebeen authorized, as well as leaning over detainees and whispering in their ears that the situation was futile.In addition, the wiping of menstrual blood on a detainee in March 2003 was considered authorized to showthe futility of the situation.Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on“Counter Resistance Techniques in the War on Terror”. See supra, para. 50.
90
91
Response of the United States of America, dated October 21, 2005 to the inquiry of the SpecialRapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 21 et seq..92Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations Congresson the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by theEconomic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May1977.The Convention of the Rights of the Child defines a child as “every human being below the age ofeighteen years unless, under the law applicable to the child, majority is attained earlier. CRC, article 1.Three juveniles, under the age of 16 years, were transferred from Guantanamo Bay to their home country inearly 2004 after over one year in detention. US Department of Defense, News Release, ‘Transfer of93
E/CN.4/2006/120page 50Juvenile Detainees Completed’ accessed athttp://www.defenselink.mil/releases/2004/nr20040129-0934.html (20December 2005); CNN World, “U.S. Frees Teens at Guantanamo Bay” (29 January 2004).It is unknown how many juveniles remain in Guantanamo Bay. Omar Ahmed Khadr, a Canadian, who wasfifteen years old at the time of his arrest and his transfer to Guantanamo Bay in 2002, remains inGuantanamo Bay today. Defence Counsel Questionnaires.94
Vienna Convention on the Law of Treaties, article 18. Although the United States has not ratified theVienna Convention, it is generally recognized as a restatement of previous law.Constitution of the World Health Organization, preamble setting forth principles accepted by ContractingParties.Commission on Human Rights res. 2005/24, para 20(c).Ibid, para 7.Ibid, para 5.
95
96979899
Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), E/C.12/2000/4,para. 42.Ibid, para. 5.
100101
See United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders,A/CONF/611, annex I, E.S.C. res. 663C, 24 UN ESCOR Supp. (No.1) at 11, E/3048 (1957), amendedE.S.C. res. 2067, 62 UN ESCOR Supp. (No.1) at 35, E/5988 (1977) paras 9-22.The Special Rapporteur received information from, among other sources, interviews with formerdetainees, family members of current detainees and lawyers representing former and current detainees.US Department of Defense, Joint Task Force 170, Guantanamo Bay, Memorandum for the Record:ICRC Meeting with MG Miller on 09 Oct 03 (indicating ICRC was concerned about mental health ofdetainees due to pressures imposed by, among other conditions, interrogator control over detainees’ basicneeds, duration of interrogations, cage type cells, isolation, restrictions on books and shaving aspunishment); Neil A. Lewis, ‘Red Cross Finds Detainee Abuse in Guantanamo’ The New York Times (30November 2004) (reporting ICRC stated that keeping detainees indefinitely without knowing their fatewould lead to mental health problems); Physicians for Human Rights,Break Them Down: Systematic Useof Psychological Torture(2005) pp 52-54.Neil A. Lewis, supra note 103; Physicians for Human Rights, supra note 103; Tipton Report accessed athttp://www.ccr-ny.org/v2/reports/report.asp?ObjID=UNuPgz9pc0&Content=577(2 December 2005);Presentations of Former Detainees, Conference: The Global Struggle Against Torture: Guantanamo Bay,Bagram and Beyond, hosted by Reprieve and Amnesty International on London, UK (19-21 November2005).105106107108104103102
Physicians for Human Rights, supra note 103, pp 52-53.Ibid at 50.E/CN.4/2003/58, para 95.A/60/348, para. 9.
E/CN.4/2006/120page 51Article 7(2). A commentator has described the detention facilities at Guantánamo Bay as an experiment.Jane Meyer, “The Experiment”,The New Yorker(11 and 18 July, 2005).Human Rights Committee, General Comment No. 21 (1992, replaces General Comment No. 9concerning humane treatment of persons deprived of liberty). State parties report to both the HumanRights Committee and the Committee against Torture on the implementation of international standards formedical ethics. See, e.g., the fourth periodic report of Uruguay to the Human Rights Committee(CCPR/C/95/Add.9, paras 65-69) and the second periodic report of Algeria (CAT/C/25/ADD.8, para 6).The World Medical Association is an independent confederation of professional associations,representing approximately 80 national medical associations.These principles are consistent with medical ethics applicable under international humanitarian law.See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protectionof Victims of International Armed Conflicts (Protocol I), 8 June 1977, article 16; Protocol Additional to theGeneva Conventions of 12 August 1949, and relating to Protection of Victims of Non-International ArmedConflicts (Protocol II), 8 June 1977, article 10.113114115112111110109
International Council of Nurses, “Nurses Role in the Care of Prisoners and Detainees” adopted 1998.Ibid.
Office of the Surgeon General Army, “Final Report: Assessment of the Detainee Medical Operations forOEF, GTMO, and OIF (13 April 2005) (The Kiley Report); Army Regulation 15-6, Final Report:Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April2005, amended 9 June 2005) (The Schmidt Report).116
See Neil A. Lewis, supra note 103 (ICRC report stated “medical files of detainees were ‘literally open’to interrogators); G Bloche and J Marks, “Doctors and Interrogators at Guantanamo Bay” 353;1 NewEngland Journal of Medicine 6, 6 (7 July 2005); Interview with former detainee Rustam Akhmiarov,London (18 November 1005).
The Kiley Report, supra note 115, at 1-8 (Behavioral Science Consultation Teams (BSCT) “consisted ofphysicians/psychiatrists and psychologists who directly support detainee interrogation activities”); Neil A.Lewis, supra note 103 (ICRC workers “asserted that some doctors and other medical workers atGuantanamo were participating in planning for interrogations, in what the report called “a flagrant violationof medical ethics”); The Schmidt Report, supra 115, at 17 (medical records indicated monitoring of bodytemperature of detainee being exposed to extreme cold); G Bloche and J Marks, supra note 116.M Sullivan and J Colangelo-Bryan, “Guantanamo Bay Detainee Statements: Jum’ah MohammedAbdulLatif Al Dossari, Isa Ali Abdulla Al Murbati, Abdullah Al Noaimi and Adel Kamel Abdulla Haji”(May 2005) at 16 (statement of Mr. Al Noaimi); ); Interviews with former detainees Rustam Akhmiarovand Airat Vakhitov, London (18 November 2005); Defence Counsel Questionnaires (reporting non-consensual drugging, including injections, and force-feeding through nasal tubes, as well as participation ofhealth professionals in monitoring health for interrogations).119120118
117
See Neil A. Lewis, supra note 103 (quoting ICRC report).
US Department of Defence, Medical Program Principles and Procedures for the Protection andTreatment of Detainees in the Custody of the Armed Forces of the United States (3 June 2005).121
The Kiley Report, supra note 115, 1-8.
E/CN.4/2006/120page 52They have included, among others, subjecting detainees to sleep deprivation, twenty-hour interrogationsday after day, months of isolation, loud music and strobe lights, extremes of heat and cold, short shacklingto an eye-bolt on the floor, and exploiting phobias, such as instilling fear with military dogs. Interrogatorsalso sexually and culturally humiliate detainees, subjecting them to forced nudity in front of females,forcing them to wear a woman’s bra on the head and calling female relatives whores. The Schmidt Report,supra note 115. See also Chapter III (2) supra.L. Rubenstein, C. Pross, F Davidoff and V. Iacopino, “Coercive US Interrogation Policies: A Challengeto Medical Ethics”, 294:12 Journal of the American Medical Association 1544, 1545 (28 Sept. 2005).124125123122
UN Principles, Principle 5 (emphasis added).
See e.g.,Majid Abdulla Al-Joudi v. George W. Bush,Civil action no. 05-301, US District Court for theDistrict of Columbia (26 October 2005); Charlie Savage, ‘Guantanamo medics accused of abusive force-feeding: Detainees’ Lawyers go before Judge’ The Boston Globe (15 October 2005); Tim Golden “ToughU.S. Steps in Hunger Strike at Camp in Cuba” The New York Times (9 February 2006).126127
See supra para 54.
Declaration of Tokyo, supra para. 74 and note 111; World Medical Association, Declaration of Malta(1992); see generally, Reyes Hernan, “Medical and Ethical Aspects of Hunger Strikes in Custody and theIssue of Torture” extract from “Maltreatment and Torture” (1998) (providing the history and rationale forthe prohibition against doctors participating in force feeding of prisoners) accessed at ICRC,http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList302/92B35A6B95E0A5A3C1256B66005953D5(8February 2006).American Medical Association, Policy H-65.997 Human Rights (AMA endorses World MedicalAssociation’s Declaration of Tokyo) accessed at American Medical Association,http://www.ama-assn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/H-65.997.HTM(10 February 2006).
128
“Israel: Visits to detainees on hunger strike” accessed at ICRChttp://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/75579B6BB769D3B5C1256EFD0047576F(9February 2006)See, e.g.,Secretary of State for the Home Department v. Robb[1995] Fam 127 (United Kingdom);Thorv. Superior Court,21 California Reporter 2d 357, Supreme Court of California (1993);Singletary v.Costello,665 So.2d 1099, District Court of Appeal of Florida (1996).See, generally, Mara Silver, “Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation,” 58 Stanford Law Review 631 (2005) (collecting US jurisprudence on force-feeding ofdetainees).Response of the United States of America Dated October 21, 2005 to Inquiry of the UNCHR SpecialRapporteurs Dated August 8 2005 Pertaining to Detainees at Guantanamo Bay, at 19.133134132131130
129
CESCR, General Comment No. 14, supra note 99, paras. 8, 34.
SeeCruzan v. Director Missouri Department of Health,497 U.S. 261, 269-70 (1990) (recognizing theright to refuse treatment as the logical corollary to the doctrine of informed consent).135
SeeSecretary of State for the Home Department v. Robb,supra note 130; see also Chair of the Board ofTrustees of the American Medical Association, Duane M. Cady, M.D.,AMA to the Nation, AMAunconditionally condemns physician participation in torture,(20 December 2005) accessed athttp://www.ama-assn.org/ama/pub/category/15937.html (10 February 2006) (clarifying that “every patient
E/CN.4/2006/120page 53deserves to be treated according to the same standard of care whether the patient is a civilian, a US soldier,or a detainee” and acknowledging that the AMA position on forced feeding of detainees is set forth in theDeclaration of Tokyo.
Annex II.
Letter dated 31 January 2006, addressed to the Office of the High Commissioner forHuman Rights, by the Permanent Representative of the United States of America to theUnited Nations and Other International Organizations in Geneva.“We have received your letter dated January 16, 2006, enclosing an advanceunedited copy of the report of four Special Rapporteurs and the Working Group onArbitrary Detention on the situation of detainees in Guantanamo Bay (“UneditedReport”). Your letter asked for any factual clarifications regarding the Unedited Reportby January 31 and noted that “changes made will not be of a substantive nature.”The United States Government regrets that it has not received sufficientopportunity to provide a fuller response to the factual and legal assertions andconclusions in the Unedited Report. Despite the substantial informational materialpresented by the United States to the Special Rapporteurs in 2005 regarding Guantanamoand the offer to three of the Special Rapporteurs to visit the facility to observe first handthe conditions of detention, there is little evidence in the Unedited Report that the SpecialRapporteurs have considered the information provided by the United States. We offeredthe Special Rapporteurs unprecedented access to Guantanamo, similar to that which weprovide to U.S. congressional delegations. It is particularly unfortunate that the SpecialRapporteurs rejected the invitation and that their Unedited Report does not reflect thedirect, personal knowledge that this visit would have provided. Rather, the UneditedReport is presented as a set of conclusions -- it selectively includes only those factualassertions needed to support those conclusions and ignores other facts that wouldundermine those conclusions. As a result, we categorically object to most of theUnedited Report’s content and conclusions as largely without merit and not based clearlyin the facts.An example of this problematic approach is how the Unedited Report deals withthe force-feeding of detainees. The U.S. Government has provided information that in thecase of detainees who have gone on hunger strikes, Guantanamo authorities haveauthorized involuntary feeding arrangements, monitored by health care professionals, topreserve the life and health of the detainees. Rather than reporting the factual informationprovided by the United States on when and how involuntary feeding is authorized andhow it is carried out, the Unedited Report simply states categorically that “excessiveforce was used routinely” for this purpose and that “some of the methods used for forcefeeding definitely amount to torture.” This is untrue, and no such methods are describedin the Unedited Report. Moreover, it is bewildering to the United States Government thatits practice of preserving the life and health of detainees is roundly condemned by theSpecial Rapporteurs and is presented as a violation of their human rights and of medicalethics.
E/CN.4/2006/120page 54
We are equally troubled by the Unedited Report’s analysis of the legal regimegoverning Guantanamo detention. Nowhere does the report set out clearly the legalregime that applies according to U.S. law. The United States has made clear its positionthat it is engaged in a continuing armed conflict against Al Qaida, that the law of warapplies to the conduct of that war and related detention operations, and that theInternational Covenant on Civil and Political Rights, by its express terms, applies only to“individuals within its territory and subject to its jurisdiction.” (ICCPR Article 2(1)). TheReport’s legal analysis rests on the flawed position that the ICCPR applies toGuantanamo detainees because the United States “is not currently engaged in aninternational armed conflict between two Parties to the Third and Fourth GenevaConventions.” This, of course, leads to a manifestly absurd result; that is, during anongoing armed conflict, unlawful combatants receive more procedural rights than wouldlawful combatants under the Geneva Conventions. Numerous other discussions in theUnedited Report are similarly flawed.The United States is a country of laws with an open system of constitutionalgovernment by checks and balances, and an independent judiciary and press. These issuesare fully and publicly debated and litigated in the United States. To preserve theobjectivity and authority of their own Report, the Special Rapporteurs should review andpresent objective and comprehensive material on all sides of an issue before stating theirown conclusions. Instead, the Special Rapporteurs appear to have reached their ownconclusions and then presented an advocate’s brief in support of them. In the process theyhave relied on international human rights instruments, declarations, standards, or generalcomments of treaty bodies without serious analysis of whether the instruments by theirterms apply extraterritorially; whether the United States is a State Party -- or has filedreservations or understandings -- to the instrument; whether the instrument, declaration,standard or general comment is legally binding or not; or whether the provisions citedhave the meaning ascribed to them in the Unedited Report. This is not the basis on whichinternational human rights mechanisms should act.The Special Rapporteurs have not provided a meaningful opportunity to theUnited States to consult on the draft report or to rebut factual and legal assertions andconclusions with which we fundamentally disagree. The United States reserves theopportunity to reply in full to the final Report, but in the meantime requests that this letterbe attached to the Report as an interim reply.Regards,”Signed:Kevin Edward MoleyAmbassadorPermanent Representativeof the United States of America
