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The ICHR reiterates its request that the US take the urgent measures necessary to have the legal status of the Guantanamo detainees determined by a competent tribunal.


WASHINGTON, D.C. 2 0 0 0 6 U.S.A.

March 18, 2003

Ref. Detainees in Guantanamo Bay, Cuba
Precautionary Measures and Request for Information

Dear Sirs and Madams:

On behalf of the Inter-American Commission on Human Rights, I wish to acknowledge receipt of your communications dated March 4, 2003, in which you provided additional information regarding your February 13, 2003 request for precautionary measures concerning unnamed persons detained and interrogated by the United States.

I also wish to inform you that after deliberating upon your request, the Commission, in a note to the United States dated March 14, 2003, decided to reiterate its March 12, 2002 precautionary measures concerning the detainees in Guantanamo Bay, Cuba, and to request additional information, in the following terms:

    In a communication dated February 13, 2003, the Petitioners in this matter submitted additional information to the Commission concerning the situation of individuals detained by the United States at its facilities at Guantanamo Bay, Cuba. They also provided the Commission with information pertaining to the situation of individuals detained for investigative purposes in other locations in relation to the United States' post-September 11, 2001 anti-terrorism initiatives. In response to a request by the Commission for additional information, the Petitioners submitted a further communication to the Commission on March 4, 2003. The pertinent parts of the Petitioners' submissions of February 13, 2003 and March 4, 2003 are attached to this note.

    The Petitioners allege in particular that persons described in their communications have been the victims of torture and other cruel, inhuman or degrading punishment or treatment at the hands of U.S. agents, or have been transferred by the United States for Interrogation to third countries known to practice such punishment or treatment. Based upon these allegations, the Petitioners have asked the Commission to adopt precautionary measures requesting, inter alia, that the United States government afford each detainee the right to humane treatment and to be free from torture and other inhuman and degrading treatment as guaranteed under the American Declaration of the Rights and Duties of Man and international humanitarian law.

    After carefully considering the information provided by the Petitioners, the Commission decided during its 117th. regular period of sessions to address Your Excellency's government in the following terms.

    On March 12, 2002, the Commission adopted precautionary measures in which it requested that Your Excellency's government take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. The Commission reiterated its request in a communication dated July 23, 2002. In adopting these measures, the Commission emphasized that no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and nonderogable rights, In its responses to the Commission's request, Your Excellency's government disputed the Commission's competence to consider the matter and has not submitted any information indicating that the legal status of each of the detainees at Guantanamo Bay has been properly determined and their corresponding legal rights and protections clarified.

    In addition, the Petitioners' most recent observations as well as other information in the public realm, |1| although limited, raise questions concerning the extent to which the United States' policies and practices in detaining and interrogating persons in connection with its anti-terrorist initiatives clearly and absolutely prohibit treatment that may amount to torture or may otherwise be cruel, inhuman or degrading as defined under applicable international norms. In this connection, the Commission wishes to recall the recommendations contained in the Commission's December 2002 Report on Terrorism and Human Rights pertaining the right to humane treatment, which state in part as follows:

      9. Both within and outside of situations of armed conflict, member states must comply with minimum standards of humane treatment prescribed under the applicable regime of international human rights or International humanitarian law. While the applicable regimes of law are discrete, they similarly require that member States ensure that

      (a) the conditions of detention of detainees satisfy minimum standards of humanity and personal dignity, with due regard for the requirements of particular categories of persons, including families, women and children, and remain subject to continuous and effective supervision by regularly constituted courts through habeas corpus or equivalent relief or, in cases of armed conflict, through pertinent mechanisms under international humanitarian law;

      (b) detainees who are subject to disciplinary or penal sanctions are treated humanely at all times and never subjected to torture or inhumane treatment, including, for example, corporal punishment and prolonged periods of time in solitary confinement;

      (c) detainees are not be subjected to any method of interrogation that may amount to torture or other inhumane treatment, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatment such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance.

    Based upon the above considerations, and in the absence of information indicating that its precautionary measures pertaining to the detainees at Guantanamo Bay have been implemented, the Commission hereby reiterates its request that Your Excellency's government take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal

    In addition, the Commission hereby requests information from Your Excellency's government concerning the location, status and treatment of individuals detained by the United States in other facilities in connection with its post-September 11, 2001 anti-terrorist initiatives. This should include information as to the United States' policies and practices governing the prohibition of any form of treatment that may amount to torture or other cruel, inhumane or degrading in nature in the detention or interrogation of such persons.

In its communication to the United States, the Commission asked that the State provide information concerning compliance with its precautionary measures, together with the additional information requested, within 30 days.

Sincerely yours,
Santiago A. Canton
Executive Secretary

Final Notes:

1. See, e.g., Don Van Natta Jr., Questioning Terror Suspects in a Dark and Surreal World, N.Y. TIMES (March 9, 2003); Carlotta Gall, U.S. Military Investigating Death of Afghan in Custody, N.Y. TIMES (March 4,2003); Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations: "Stress and Duress" Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. P. (December 26, 2002); John Mintz. R.I. Guard Relieves a Top Officer, General, Head of MP's at Guantanamo, Clashed with Detainee Interrogators, WASH. P., (October 16. 2002). [Back]

Documentation Note: This communication was sent to Michael Ratner, Jennifer M. Green, Barbara Olshansky and William H. Goodman, from the Center for Constitutional Rights, on March 18, 2003.

State of Exception and Human Rights

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This document has been published on 09Jul03 by the Equipo Nizkor and Derechos Human Rights