Request For Precautionary Measures under Article 25 of the Commission’s Regulations on Behalf of Unnamed Persons Detained and Interogated by the US Government.
By The Center For Constitutional Rights And The International Human Rights Law Group
TO THE HONORABLE MEMBERS OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
ORGANIZATION OF AMERICAN STATES
REQUEST BY THE CENTER FOR CONSTITUTIONAL RIGHTS
AND THE INTERNATIONAL HUMAN RIGHTS LAW GROUP
FOR PRECAUTIONARY MEASURES UNDER
ARTICLE 25 OF THE COMMISSION'S REGULATIONS ON BEHALF OF UNNAMED PERSONS DETAINED AND INTEROGATED BY THE UNITED STATES GOVERNMENT
By the undersigned, appearing as counsel for Petitioners under the provisions of Article 23 of the Commission's Regulations:
Petitioners seek the urgent intervention of this Commission in order to prevent continued unlawful acts of torture and other inhuman and degrading treatment that threaten the rights of individuals detained for investigative purposes by the United States government at its detention facilities at Baghram Air Force Base, Afghanistan, Diego Garcia, Guantanamo Bay and other such facilities operated by the United States and its agencies, including the military, the Central Intelligence Agency (CIA), and the Federal Bureau of Investigation (FBI), worldwide. The United States has also sent individuals under their control for interrogation to third countries known to practice torture and other inhuman and degrading treatment. These acts also threaten the rights of the individuals concerned.
In this Request, Petitioners do not seek broad ranging Measures. Nor do Petitioners seek to undermine the United States' counter-terrorism efforts. Indeed, Petitioners recognize that the United States has an obligation and the right to seek to obtain information from persons that might assist it to prevent future terrorist attacks and that might lead to the arrest and trial of those responsible for the horrendous crimes of September 11.
Rather Petitioners seek Measures to ensure that all persons held in U.S. custody or under U.S. control, wherever they are held, are treated in a humane manner, and in particular are not subject to torture or other inhumane and degrading treatment. The right of everyone to be free from such treatment applies equally during peace and war and during war applies irrespective of an individual's legal status, be they a prisoner of war, interned civilian or unlawful or unprivileged combatant. In failing to abide by these fundamental principles in its treatment of persons under its control, the United States is causing irreparable harm to those detained and establishing a dangerous precedent for the actions of other States. States will see U.S. actions as supporting their own violations of international law and human dignity, which in turn will have adverse impacts on the rights of everyone, including its own citizens.
Petitioners request Precautionary Measures to protect the detainees' rights to be free from torture and other cruel inhuman and degrading treatment, rights protected pursuant to Articles I, XXV, XXVI and XXVII of the American Declaration on the Rights and Duties of Man (American Declaration).
II. STATEMENT OF FACTS
Since the defeat of Taliban and Al Qaeda armed forces in Afghanistan, the United States military, together with personnel from the FBI and the CIA have arrested and detained persons whom they suspect of being either members of Al Queda or the Taliban armed forces. |1| The objective behind these measures has been to secure information on the Al Qaeda terrorist network and possible future terrorist attacks. |2| According to U.S. officials, nearly 3,000 suspected Al Qaeda members and their supporters have been detained worldwide since September 11, 2001. |3| 649 are known to be incarcerated and subject to interrogation at Guantanamo Bay, Cuba. |4| The number held elsewhere is not known. The U.S. government has refused to recognize those detained as prisoners of war and to extend to them the protections of the Third Geneva Convention. It has also failed to treat them under its own domestic criminal law. None of them has been charged with a crime nor brought before a tribunal, military or otherwise. Although the official position of the government is that all persons under the control of the United States, wherever they are held, are to be treated as enemy combatants in a manner consistent with the principles of the Third Geneva Convention, |5| none of them have been permitted access to counsel or family members. Apart from those detained at Guantanamo Bay, none have had access to the International Committee of the Red Cross (ICRC). All apparently are to be held until the conclusion of the "war on terrorism." Suspects are detained at U.S. government detention facilities at Baghram Air Force Base, Afghanistan, Diego Garcia, Guantanamo Bay, Cuba, and other undisclosed secret facilities operated by the United States and its agencies in other regions of the world. |6| Since January 2002, there have been numerous reports that detainees have been subjected to mistreatment at the hands of the U.S. military both prior to and after their capture. |7| Recently, an in-depth article in The Washington Post on the interrogations of persons detained at the U.S. base at Baghram indicated that persons interrogated have been subjected to treatment which amounts to torture, or at the very least, inhuman or degrading treatment. |8|
The report was compiled following a visit by The Washington Post reporters to Afghanistan and interviews with ten current U.S. national security officials and several former intelligence officials. The CIA, which has primary responsibility for the interrogations, declined to comment. U.S. officials, when asked for comment on the report after its publication, without elaborating on specifics simply stated that it contained "many inaccuracies." |9|
Moreover, neither President Bush, nor any other high ranking official in the U.S. administration has responded to the specific allegations made, much less denied the report's veracity. On December 26, 2002, Human Rights Watch wrote to the President asking that he clarify U.S. policy vis-à-vis torture, commit to carrying out an investigation into the allegations and hold accountable persons found responsible of torture or impermissible renditions to third countries. |10| To date, Human Rights Watch has not received a comprehensive response to this letter.
Although senior government officials have insisted that the United States is conducting the interrogations in compliance with international law, officials directly involved in the interrogations have suggested otherwise. U.S. officials told reporters that during interrogations they routinely resort to the use of violence, considering such an approach to be "just and necessary." One official interviewed is quoted as saying, "If you don't violate someone's human rights some of the time, you probably aren't doing your job." |11|
U.S. officials interviewed stated that persons interrogated were routinely subjected to what they termed "stress and duress" techniques, including "standing or kneeling for hours" while wearing black hoods or opaque goggles, being "held in awkward, painful positions" and deprived of sleep with a 24 hour bombardment of lights. Prior to their incarceration and interrogation, the report states that captives are often "softened up" by members of the Military Police and U.S. Army Special Forces troops, by being beaten and confined in tiny rooms. Some have also been blind-folded and thrown into walls by U.S. military personnel as well as being subjected to loud noises and deprived of sleep. |12|
In December 2002, two prisoners are reported to have died, one from pulmonary embolism and the other of a heart attack, while in U.S. custody at the Baghram facility. Criminal investigations into the incidents have been initiated by the military. |13|
Detainees who have refused to cooperate have been transferred or "rendered" to governments in Jordan, Egypt and Morocco. These transfers are effected notwithstanding the fact that human rights organizations as well as the U.S. government itself have documented that intelligence services in these countries regularly employ torture techniques in the interrogation of prisoners. The rationale behind this process was explained by one U.S. official actually involved in it: "We don't kick the [expletive] out of them. We send them to other countries so that they can kick the [expletive] out of them." |14| Another official interviewed and also involved in renditions said that he knew that captives who were rendered would probably be tortured: "I … do it with my eyes open," he said. |15|
The transfer of terrorism suspects by the United States is not a new phenomenon. In March 2002, The Washington Post published an article detailing U.S. involvement in seizing terrorist suspects in third countries and shipping them with few legal proceedings to the United States or other countries, including Pakistan and Egypt . |16| Transfers have also occurred directly from the United States. For example, in October 2002, in the face of strong diplomatic protests by the Canadian government, the U.S. government deported Maher Arar, a Canadian citizen of Syrian descent, to Syria. Mr. Arar was arrested, detained and questioned by officials from the U.S. Immigration and Naturalization Service and FBI when transiting through John F. Kennedy Airport, New York, on his way back to Canada from Tunisia where he was visiting with his wife and her family. For reasons unknown, Mr. Arar was deported to Syria despite the fact that he had left that country fifteen years previously and was traveling on his Canadian passport. Since being removed from the U.S., Mr. Arar has been in the custody of Syrian authorities. |17| Although Syrian authorities have allowed officials from the Canadian Embassy to meet with him, they have no means of determining whether or not he is being mistreated as they are not permitted to meet together in private to discuss his treatment. Both U.S. Department of State Reports and reports of non-governmental human rights organizations, such as Amnesty International, note that the use of torture and other inhuman and degrading treatment in Syria is commonplace. |18|
All persons detained by the United States, even those persons rendered by the U.S. to other countries, remain under the ultimate control of the United States. The Washington Post article quotes a senior U.S. official discussing interrogations of terrorist suspects rendered to Saudi Arabia as saying that the CIA are "still very much in control" and that they will often "feed questions to their investigators." |19| The extensive press reports on mistreatment have, as yet, not been substantiated. One explanation for this is that none of the detainees have access to consular officials, |20| lawyers, courts or organizations independent of the U.S. government. Although the ICRC has been permitted access to the detention facility at Guantanamo, the organization has publicly stated that its visits should not be taken to mean that "…it either approves or disapproves of the conditions of internment there." |21| The facilities where they are held as well as the detainees themselves are under the exclusive jurisdiction and control of the United States.
Petitioners seek the urgent intervention of this Commission, in order to prevent continued unlawful acts by the United States that threaten the detainees' rights under the American Declaration. Under Article 25 of its regulations, the Commission may intercede in "serious and urgent cases, and whenever necessary according to the information available ... to prevent irreparable harm to persons." This is such an urgent case.
THE LEGAL BASIS FOR THE ADOPTION OF PRECAUTIONARY MEASURES
A. The Commission Has Jurisdiction to Adopt Precautionary Measures
Although some of the detainees for whom Measures are sought are held by the United States outside the western hemisphere, the Commission has jurisdiction in this matter nonetheless. Neither the Charter of the Organization of American States (OAS) nor the Commission's Statute expressly restricts the exercise of the Commission's jurisdiction to this region. The Commission views its jurisdiction in relation to the American Declaration as extending to all OAS Member States and in respect of persons "subject to their authority and control." |22|
In Coard v. United States, several individuals filed a petition against the United States, alleging violations of the prohibition of arbitrary detention under the American Declaration. The detentions were alleged to have taken place during the U.S. military incursion in Grenada. In its report, the Commission set forth the "authority and control test":
Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state - usually through the acts of the latter's agents abroad. In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority andcontrol. |23|
The Commission referenced the Coard decision with approval in its recent Request for Precautionary Measures Concerning the Detainees at Guantanamo Bay, Cuba said that "[t]he determination of a state's responsibility for violations of the international human rights of a particular individual turns not on that individual's nationality or presence within a particular geographic area, but rather on whether under the specific circumstances, that person fell within the state's authority or control." |24|
In its decisions, the Commission has referenced the case law of the European Commission in support of its "authority and control" test for jurisdiction, including the cases of Cyprus v. Turkey, |25| and Loizidou v. Turkey. |26| In both cases, the European Commission set forth an "effective overall control" test as a basis for the jurisdictional reach of the European Convention. Importantly, the Inter-American Commission did not cite as additional authority for its "authority and control" test the more recent European Court case to address the issue of jurisdiction, Bankovic v. Belgium. |27|
In Bankovic, the applicants, all of whom were citizens of the Federal Republic of Yugoslavia (FRY) filed against members states of NATO (states that were also party to the European Convention) on behalf of themselves and relatives who had been killed or seriously injured following the NATO bombing of a radio station in Belgrade. The applicants relied on violations of Article 2 (Right to Life), Article 10 (Freedom of Expression) and Article 13 (Right to a national remedy and compensation) of the European Convention. The European Court declined to exercise jurisdiction in the circumstances. Significantly, the Court did not do so because it considered that the reach of the Convention was restricted to the control of territory within the European public order (espace juridique). As the FRY did not fall within this "legal space" of the Convention, the Court found that it did not apply to govern the actions of Belgium and the other Member States. |28| By omitting to refer to Bankovic, the Commission has indicated that it does not consider that similar territorial restrictions apply in regards to the scope of the protections afforded by the American Declaration.
Interestingly, in Bankovic, although the Court declined to exercise extra territorial jurisdiction it did so based on the particular facts of the case. It did not, however, dismiss outright the possibility of it exercising such jurisdiction under "exceptional" circumstances. Referring to its earlier decisions in Loizidou v. Turkey |29| and Cyprus v. Turkey, |30| the Court considered that exceptional circumstances would exist when "the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government." |31| This definition of "exceptional circumstances" would clearly cover the United States' presence and actions in areas outside the western hemisphere, such as the detentions at Baghram in Afghanistan and Diego Garcia.
Thus, the prior case law of this Commission supports the exercise of jurisdiction in this case over persons detained and controlled by the United States both in the western hemisphere and elsewhere.
In addition to its case law, the Inter-American Commission has also recognized its ability to address actions that occur beyond the geographic scope of the western hemisphere. In its 1985 Report on Suriname, the Commission commented on Suriname's attacks on and harassment of Surinamese citizens living in Holland. The Commission had convened a Special Commission and spent two days taking testimony from various victims of human rights violations in Holland. In its report following the Special Commission, the Commission did not exclude the possibility of taking some form of action in relation to these events, stating: "The Commission, before adopting any measure on this matter, will await the findings of the Dutch judicial investigation." |32|
In sum, the jurisprudence of the Inter-American system, as well as the case law of other jurisdictions, recognize the exercise of jurisdiction regardless of where an individual is detained. The key determination is whether a state has "authority and control" over the affected individuals.
In this matter, it is particularly important that the Commission exercise jurisdiction as the United States is holding the detainees outside of what it deems U.S. sovereign territory, thereby circumventing the protections that would be otherwise afforded them under U.S. domestic law. Moreover, it is appropriate that this Commission assume jurisdiction as there is no other regional human rights institution available to them to assert their rights to be free from torture and other inhumane and degrading treatment.
B. The Treatment of the Detainees Constitutes Torture and Cruel, Inhuman or Degrading Treatment or Punishment
As discussed above, newspaper reports from the beginning of 2002 to date provide clear evidence of a pattern of mistreatment inflicted on persons arrested, detained and interrogated by U.S. officials at U.S. run detention facilities in Afghanistan and elsewhere. Abuses include:
- Transfer to detention facilities in unventilated boxes,
- Pre-incarceration solitary confinement in small rooms,
- Sensory deprivation during transfer, including blind-folding and hooding,
- Shackling of detainees' hands and feet,
- Forced standing or kneeling for extended periods of time,
- Holding in awkward, painful positions,
- Sensory deprivation techniques, including hooding and the wearing of blackened goggles,
- Sleep deprivation,
- Prolonged incommunicado detention and,
- Transfers to countries that the U.S. Department of State reports as employing torture.
The right to humane treatment and the prohibitions against torture and inhuman and degrading treatment are provided for under Articles I, XXV and XXVI of the American Declaration. Although the American Declaration does not contain a general provision on the right to humane treatment, the Commission has interpreted Article I of the Declaration as containing a prohibition similar to that under the American Convention on Human Rights. |33| The Commission has also found the prohibition of torture to be a jus cogens norm |34| As such, interrogation methods that amount to torture and inhuman or degrading treatment are strictly prohibited under these Articles. The Commission has also found that both international human rights law and humanitarian law "provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority of control of the state." |35|
In its assessment as to whether the interrogation methods used by U.S. officials violate these articles, this Commission should have recourse not only to its own jurisprudence, but also to those standards established under both conventional and customary international human rights law and humanitarian law. |36|
Conceptually, international law distinguishes between treatment that constitutes torture and that which constitutes inhuman or degrading treatment or punishment. In the case of Ireland v. United Kingdom |37| the European Court of Human Rights indicated that the difference between torture and inhuman or degrading treatment derived principally from the intensity of the suffering inflicted. The Court suggested that the distinction between the two is generated by a special "stigma" attaching to torture and that it was restricted to those acts of "deliberate inhuman treatment causing very serious and cruel suffering." |38| The circumstances under which acts are perpetrated against a victim have an important bearing on whether such acts constitute torture or the less severe, inhuman or degrading treatment. Thus if certain acts are deliberately inflicted, carefully thought through before being administered and carried out with the express purpose of obtaining admissions or information from the victim, then it will constitute torture. |39| The Commission has followed this analysis. |40| Under this definition of torture, although the acts listed above when applied in isolation may constitute the lesser violation of inhuman and degrading treatment, when administered together as they are and under the given circumstances, they constitute torture.
Prohibitions of torture and inhuman or degrading treatment are incorporated in every universal and regional human rights treaty and also form part of customary international law. |41| Indeed, the prohibition of torture has the status of jus cogens. |42| The right to humane treatment and the prohibition of torture are also provided for under international humanitarian law instruments and the corresponding rules of customary international law. The prohibition applies to interned civilians |43| as well as to captured combatants irrespective of their legal status, be they prisoners of war |44| or unprivileged combatants. |45|The willful torture or inhuman treatment of prisoners of war or other detainees also constitutes a "grave breach" of the Geneva Conventions.
The Inter-American Commission in its recent Report on Terrorism and Human Rights cites a number of specific examples of acts committed in the context of interrogation that constitute inhumane treatment, including prolonged incommunicado detention, and keeping detainees hooded and naked in cells. The Report also states that the Commission will look for guidance on this issue to treatment listed by the United Nations Special Rapporteur on Torture as constituting torture. Among the acts listed are "exposure to excessive light and noise … prolonged denial of rest or sleep … total isolation and sensory deprivation, being held in constant uncertainty in terms of space and time…." |46| These particular acts have all been experienced by the detainees.
The Commission has found further guidance on what constitutes torture and inhuman and degrading treatment by reference to the decisions of the United Nations Human Rights Committee. The Committee has found that beatings, forced standing for long periods of time and holding persons incommunicado for prolonged periods constituted torture and cruel, inhuman or degrading treatment in violation of Article 7 and 10(1) of the ICCPR. |47| The Committee in its analysis of Article 7, unlike the European Court, does not draw such a hard and fast distinction between treatment that amounts to torture and that which constitutes, inhuman or degrading treatment: "The Covenant does not contain any definition of the concepts covered by Article 7, nor does the Committee consider it necessary to draw up a prohibited list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied." |48|
In El Megreisi v. Libya, the Committee found "prolonged incommunicado detention in an unknown location" to be "torture and cruel, inhuman treatment in violation of Articles 7 and 10(1)." In this case, the individual had effectively 'disappeared', having been detained, apparently by Libyan security police, for three years in unacknowledged detention until his wife was allowed to visit him. His subsequent location was unknown. Rodley has said that atypical and flagrant as this case may be, it stands for the proposition that prolonged incommunicado detention can violate Article 7, even to the extent of constituting torture. Rodley suggests that the underlying logic of the Committee's position would appear to be that the detention of persons in circumstances that give them or others grounds for fearing serious threat to their physical or mental integrity will violate Article 7. |49| Such an analysis is also in line with the jurisprudence of the Inter-American Court on Human Rights. |50|
In numerous reports, the Commission has also looked to specific provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners |51| as a benchmark in its evaluation of what types of treatment constitutes torture and cruel, inhuman and degrading treatment. |52|
Detainees being held incommunicado for prolonged periods and interrogated using the methods detailed above have been subjected to treatment which constitutes inhuman and degrading treatment rising to the level of torture. As such the treatment violates Articles I, XXV and XXVI of the American Declaration.
C. The Transfer of Detainees to Countries That Practice Torture Constitutes Torture and Other Inhuman or Degrading Treatment
Under international law, the United States has continuing responsibilities for the treatment of any person who was in U.S. custody before being handed over to another party. A State violates the prohibition against torture not only when it uses torture directly, but also when it is complicit in torture committed by another State or where it hands over a person to a State where it is likely that that person will be tortured or otherwise mistreated. |53|
The prohibition of rendering persons to countries that practice torture is incorporated in Article XXVII of the American Declaration. The Commission has found that a State that expels, returns or extradites a person to another State where there are substantial grounds for believing that this person would be in danger of being subjected to torture will be considered responsible for violating that person's right to personal security or humane treatment. |54|
This principle is also incorporated in universal human rights instruments. As well as prohibiting torture and mistreatment, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment |55| prohibits states parties from sending persons to countries where it is known that such practices are likely to occur. Specifically, Article 3 provides:
No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.
For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. |56|
The European Court of Human Rights has also found that the prohibition against returning or expelling a person to a State that practices torture remains absolute, "irrespective of the victim's conduct." |57|
The United States is well aware of the occurrence of torture and inhuman or degrading treatment in countries, including Egypt, Jordan, Morocco and Syria, to which it has "rendered" persons under its control. The U.S. Department of State Annual Reports on Human Rights Practices, ("Department of State Reports") including the most recent reports for 2002, as well as Reports by Human Rights Watch and Amnesty International frequently criticize these countries for the use of torture and other mistreatment of persons during interrogation.
For example, the 2002 Department of State Report for Egypt the 2002 Report states that "there were numerous, credible reports that security forces tortured and mistreated citizens." "Principal methods of torture employed by the police, as reported by victims, included: Being stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water. Victims frequently report being subjected to threats and forced to sign blank papers to be used against the victim or the victim's family in the future should the victim complain of abuse. Some victims, including male and female detainees, reported that they were sexually assaulted or threatened with the rape of themselves or family members." |58| In its 2002 Country Report on Egypt, Amnesty International reported that, "Torture continues to be widespread in detention centers throughout the country. The UN Special Rapporteur on Torture also concluded that 'torture is systematically practiced by the security forces in Egypt, in particular by State Security Intelligence.'" |59|
The 2002 Department of State Report on Jordan notes that "police and security forces sometimes abuse detainees physically and verbally during detention and interrogation, and allegedly also use torture ... The most frequently alleged methods of torture include sleep deprivation, beatings on the soles of the feet, prolonged suspension with ropes in contorted positions, and extended solitary confinement. Defendants in high-profile cases before the State Security Court claimed to have been subjected to physical and psychological abuse while in detention." |60| Likewise in Jordan, Amnesty International observes that, "Reports continue to be received of torture and ill-treatment by members of the security forces and prison services." |61|
The Department of State Report 2002 for Morocco notes that although "[t]he law prohibits torture, some members of the security forces still tortured or otherwise abused detainees." |62|
Similarly in Syria the 2002 Report notes that, "... there was credible evidence that security forces continued to use torture, although to a lesser extent than in previous years. Former prisoners and detainees report that torture methods include administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyper-extending the spine; and using a chair that bends backwards to asphyxiate the victim or fracture the victim's spine." Further, "Although torture occurs in prisons, torture is most likely to occur while detainees are being held at one of the many detention centers run by the various security services throughout the country, and particularly while the authorities are attempting to extract a confession or information regarding an alleged crime or alleged accomplices." |63| Amnesty International reported that "Torture and ill-treatment continued to be inflicted routinely on political prisoners…" |64|
Accordingly, the actions of the United States in "rendering" persons under its control to countries where it is aware torture or mistreatment of persons occurs violates Articles I, XXV, XXVI and XXVII of the American Declaration.
PRECAUTIONARY MEASURES ARE NECESSARY TO AVERT IRREPARABLE HARM
Precautionary Measures are warranted whenever a petitioner faces a serious threat to his or her physical, psychological or moral integrity. |65| In the Loayza Tamayo Case, the Court issued Provisional Measures to end solitary confinement and incommunicado detention imposed on a person who had been committed for the crime of terrorism against Peru. "[I]rreparable harm" may also be shown by demonstrating the existence of a serious risk to life or personal integrity. |66|
Petitioners have cited to credible press reports which provide evidence that the detainees are being subject to torture and inhuman or degrading treatment. Such treatment clearly poses an imminent and serious risk to both their physical and psychological integrity.
Although there is generally a need when seeking Precautionary Measures to identify individually the persons who are in danger of suffering irreparable harm, |67| this is not always necessary. For example, in the Peace Community of San José de Apartadó Case, |68| the Court did not require that each individual be identified since they formed part of an organized community, located in a determined geographic place, whose members could be identified and individualized and who, due to their membership in the community, faced a similar risk of suffering acts of aggression against their personal integrity and lives. Thus, the community could be dealt with collectively.
Here, the detainees are all located in specific detention facilities under the control of United States authorities and their identities are known to the United States. In addition, they are all in a situation of similar risk of continuing injury to their fundamental rights. Precautionary Measures may therefore be issued for them as a group. In light of the United States' complete and unfettered control over the detainees, including their names and locations, adoption of Precautionary Measures for the detainees as a group is especially important.
The detainees will suffer irreparable harm to their physical and psychological integrity if the Precautionary Measures requested are not adopted. The requested Measures are directed and narrowly tailored toward the avoidance of this harm.
The facts set forth in this Request for Precautionary Measures establish prima facie violations of Articles I, XXV and XXVI of the American Declaration and the risk of irreparable harm has been amply demonstrated.
CONCLUSION AND PETITION
Petitioners respectfully seek the Commission's intervention and the issuance of the following Precautionary Measures, requesting that the United States government:
- Adopt those measures necessary to protect the right to personal integrity of the detainees.
- Afford each detainee the right to humane treatment and to be free from torture and other inhuman and degrading treatment, as provided under the American Declaration and international humanitarian law.
- Identify the detainees by name, nationality, and address.
- Cease sending persons subject to its control to third countries where it is known, or there is a reasonable belief, that torture or other inhuman and degrading treatment occurs.
- Permit the Commission to conduct an on-site investigation, through a Special Commission named under Articles 40 and 51-55 of its Regulations.
Dated: February 13, 2003 Respectfully submitted,
- Michael Ratner, Jennifer M. Green, Barbara Olshansky, William H. Goodman (Center for Constitutional Rights)
- Gay McDougall, Thomas Lynch (International Human Rights Law Group)
- Sidiki Kaba, President International Federation for Human Rights – FIDH
- Arturo Carillo, Esq.
- William J. Aceves, Professor of Law, California Western School of Law
1. See e.g. U.S. Department of Defense News Briefing (January 30, 2002) per Secretary of Defense Rumsfeld: "there's thousands of these people that are being held by the Afghans, they're being held by the Afghans, they're being held by the Pakastanis, they're being held by us … And as we go through and look at them, we're … trying to sort out the al-Qa'ida and the more senior Taleban.") cited in Amnesty International, Memorandum on the Rights of People in U.S Custody in Afghanistan and Guantanamo Bay, (April 15, 2002) p. 17. [back]
2. Id. [back]
3. 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,The Washington Post (December 26, 2002). [back]
4. Mike Mount, New Detainees Held at Guantanamo Bay, CNN (February 8, 2003). [back]
5. See Statement of U.S. National Security Spokesman, Sean McCormack, quoted in Priest and Gellman, supra n.3. [back]
6. Priest and Gellman, supra n..3; See also Federal News Service Inc., Remarks by Secretary of State Colin Powell to the U.N. Security Council re: Iraq's Weapons of Mass Destruction (February 6, 2003) and Patrick E. Tyler, Intelligence Break Led U.S. to Tie Envoy Killing to Iraq Qaeda Cell, The New York Times (February 6, 2003). [back]
7. See e.g. Molly Moore, Villagers Released by American Troops Say They Were Beaten, Kept in "Cage", The Washington Post (February 11, 2002); Carlotta Gall, Released Afghans Tell of Beatings, The New York Times (February 11, 2002) (Villagers mistakenly identified by U.S. forces as Taliban or Al Queda members, claimed that during a raid on Uruzgan village they had their hands and feet tied, were blindfolded and hooded and flown to the U.S. base at Kandahar. Upon arrival at the base they claim to have been beaten and otherwise physically assaulted. One boy claimed that he was kept in solitary confinement in a shipping container for eight days.); John Ward, Afghans Falsely Held By US Tried to Explain, The Washington Post (March 26, 2002); Afghans Say US Troops Abused Them, The Associated Press (March 23, 2002) (During a raid on compound near Kandahar, villagers claimed to have their hands and feet bound, hands tied and black hoods placed over their heads while being beaten by U.S. troops. Thirty four of them taken in to custody alleged that they were assaulted and held in tiny cages.) There was an investigation carried out by U.S military in to the Uruzgan allegations, but the results of these investigations were inconclusive on a number of fronts. See generally, Amnesty International, Memorandum on the Rights of People in U.S Custody in Afghanistan and Guantanamo Bay, (April 15, 2002). [back]
8. Priest and Gellman, supra n.3; see also Duncan Campbell, U.S. Interrogators Turn to "Torture Lite" The Guardian (London) (January 25, 2003). [back]
9. David Ensor, U.S. Officials: "Inaccuracies" in Reports of Tough Interrogations, CNN (December 27, 2002); See also: Ends, Means and Barbarity - Torture - The Use and Abuse of Torture, The Economist (London) (January 11, 2003) (describing the report as "well documented" and seeing "little reason to doubt [its] veracity.") [back]
10. http://www.hrw.org/press/2002/12/us1227.htm [back]
11. Priest and Gellman, supra n.3. [back]
12. See also, Paul Harris and Burhan Wazir, Al Queda Suspect "Is Starved of Food and Sleep at Army Base Where Two Have Died, The Observer (London) (December 29, 2002) (reporting that the parents of British citizen, Mozzam Begg, who has been detained at the U.S. military base in Bagram since his arrest at the end of 2001, had received a letter in which he complained of hunger and of being kept awake by bright lights). [back]
13. Also, during the trial of U.S national John Walker Lindh his lawyers alleged that upon capture "he was blindfolded and bound with plastic cuffs so tight they cut off the circulation to his hands," threatened with death and torture and that when he was held at the U.S base he was "blindfolded and restrained in a metal shipping container without heat or light, immobilized by shackles and bound naked to a stretcher" for two or three days. Photographs of Lindh bound and tied to a stretcher appeared in national newspapers, see www.konformist.com/images/2002/john-walker-lindh.jpg [back]
14. Priest and Gellman, supra n.3. [back]
15. Id. [back]
16. Rajiv Chandrasekaran and Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, The Washington Post (March 11, 2002); see also, Scores of Al-Qa'ida Arab Prisoners Reportedly Flown to Egypt, Jordan, BBC, citing text of a report carried in a Jordanian Newspaper, AL-Majid on April 1, 2002. [back]
17. Daniel J. Wakin, Tempers Flare After U.S. Sends a Canadian Citizen Back to Syria on Terror Suspicions, The New York Times (November 11, 2002). [back]
18. See e.g., http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8298.htm ; http://web.amnesty.org/web/ar2002.nsf/mde/syria!Open [back]
19. Priest and Gellman, supra n.3. [back]
20. See Harris and Wazir, supra n. 12 (reporting that "Foreign Office officials admit that after 11 months of asking they have still not been able to see him to check on his health. 'We are still pressing the Americans, but as yet we have not been allowed access.'") [back]
21. See Antonella Notari, spokesman for ICRC, in a letter to The Economist in relation to ICRC visits to detainees at Guantanamo Bay, The Economist (London) (January 23, 2002). [back]
22. IACHR, Request for Precautionary Measures Concerning the Detainees at Guantanamo Bay, Cuba (March 12, 2002) at p. 2. [back]
23. Case No. 10.951, Report No. 109/99, Annual Report of the IACHR 1999. para. 37. [back]
24. Supra n. 22 at fn. 7. [back]
25. 18 Y.B.Eur.Conv.Hum. Rgts. 83 (1975) at para. 118. [back]
26. Eur. Comm. H. R. Judgment of 23 March 1995, Series A. No. 310, paras. 59-64. [back]
27. Bankovic et. al. v. Belgium et. al. (Grand Chamber) Application No. 52207/99. [back]
28. Id. para. 80. [back]
29. Loizidou v. Turkey ECHR (preliminary objections) Judgment (March 23, 1995). [back]
30. Cyprus v. Turkey ECHR (Grand Chamber) Judgment (May, 10, 2001). [back]
31. Supra n.28 at. para. 71, see also Bankovic at para. 70 "the responsibility of a Contracting Party may also arise when as a consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration." citingLoizidou (preliminary objections) [back]
32. IACHR, Second Report on the Situation of Human Rights in Suriname, OAS/Ser.L/V/II.66, doc. 21, rev. 1 (Oct. 2, 1985) at pp. 14 and 40. [back]
33. Juan Antonio Aguirre Ballesteros (Chile), Case 9437, Report 5/85, Annual Report of IACHR 1984-1985. [back]
34. IACHR, Report on Canada OEA/Ser.L./V/II.106 (2000) paras. 118/154. [back]
35. IACHR, Report on Terrorism and Human Rights (2002), para. 147, citing The Prosecutor v. Furundzija, No. IT-95-17/1-T, Judgment, December 19, 1998 (Trial Chamber II), para. 183, appealed to the ICTY Appeals Chamber, Prosecutor v. Anto Furundzija, Case No. IT-95-17/1A, Judgment, July 21 2000 (ICTY Appeals Chamber.) [back]
36. As the Commission has repeatedly observed, the application of international humanitarian law does not "exclude or displace" the application of international human rights law, since both share a "common nucleus of non-derogable rights and a common purpose of protecting human life and dignity." See e.g. Coard et al. v United States, supra n. 23 para. 39. [back]
37. E.Ct.H.R., Series A, No. 25, 41. [back]
38. Id. at para. 167. [back]
39. Aksoy v. Turkey, Judgment, Report of Judgments and Decisions (December 18, 1996) at para. 64. [back]
40. See e.g. Victor Rosario Congo (Ecuador), Case No. 11.427, Report No. 63/99, Annual Report of the IACHR (1999) at para. 82. [back]
41. See Universal Declaration of Human Rights, G.A. res. 217A (III), art. 5, U.N. Doc A/810 at 71 (1948); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, art. 7, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 (ICCPR); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984),entered into force June 26, 1987; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975); American Convention on Human Rights, O.A.S. Treaty Series No. 36, art. 5, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force Feb. 28, 1987, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 83 (1992); [European] Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, and 8 which entered into force on 21 September 1970, 20 December 1971 and 1 January 1990 respectively;European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, E.T.S. 126, entered into force Feb. 1, 1989. [back]
42. See e.g. Restatement (Third) of Foreign Relations Law of the United States (1987). [back]
43. Art. 32, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, art. 32, entered into force Oct. 21, 1950. [back]
44. Art., 17, Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, art. 17, entered into force Oct. 21, 1950. [back]
45. Art. 75, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 75, 8 June 1977; Common Article 3, Geneva Conventions. [back]
46. IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116 (2002) citing "Torture and other Cruel, Inhuman or Degrading Treatment or Punishment", Report of the Special Rapporteur, Mr. P Kooijmans, appointed pursuant to Commission on Human Rights res. 1985/33 E/CN.4/1986/15, 19 Feb. 1986, para. 119. [back]
47. Bouton v. Uruguay (3711978), Report of the Human Rights Committee, GAOR, 36th. Session, Supplement No. 40 (1981), Annex XIV, para. 13. (Victim forced to stand for 35 hours, with minor interruptions; her wrists were bound with a strip of coarse cloth which hurt her and her eyes were continuously kept bandaged; she could hear the cries of other detainees being tortured; and she was verbally threatened at para. 2.3)); Birindwa and Tshisekedi v. Zaire (241 and 242/1987), Report of the Human Rights Committee, Vol. II, GAOR, 45th Session, Supplement No. 40 (1990), Annex I, para. 13(b) (Victim "deprived of food and drink for four days after arrest" and kept under unacceptable sanitary conditions.) See also Muteba v. Zaire, (124/1982) Report of the Human Rights Committee, UN Official Records of the General Assembly, 22nd Session, Supplement Nº 40, (1984), Communication Nº 124/1982, Democratic Republic of the Congo, 24/07/84. CCPR/C/22/D/124/1982, para.10.2; Setelich v. Uruguay, (63/1979) Report of Human Rights Committee, UN Official Records of the General Assembly, 14th Session, Communication Nº 63/1979 : Uruguay. 28/10/81 CCPR/C/14/D/63/1979, para. 16.2; Weinberger v. Uruguay, (28/1978) Report of Human Rights Committee, UN Official Records of the General Assembly, 31st Session, Communication Nº 28/1978, UN Doc. CCPR/C/11/D/28/1978, para. 12. [back]
48. Report of the Human Rights Committee, UN doc. A/47/40 (1990), Annex VI A, para.4, general comment 20(44) replacing and reflecting upon general comment 7(16). See also, Report of the Human Rights Committee, GAOR, 37th Session Supplement No. 40 (1982), Annex V, general comment 7(16), para. 2. [back]
49. Nigel S. Rodley, The Treatment of Prisoners Under International Law (1999) at p. 349. [back]
50. Inter-Am. Ct. H. R., Velasquez-Rodriguez case, Judgment of 29 July 1988, Series C, No. 4, para. 156 ("prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the [American] Convention on Human Rights [prohibition against torture etc.]"See alsopara. 187. [back]
51. UN Standard Minimum Rules for the Treatment of Prisoners, August 30, 1955, First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663c, 24 UN ESCOR Supp. (Nº 1) at 11, UN Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 UN ESCOR Supp. (Nº 1) at 35, UN Doc E/5988 (1977). [back]
52. IACHR, Report on Terrorism and Human Rights, supra n.46. [back]
53. See e.g., Arts. 3 and 4, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987). [back]
54. IACHR, Report on Canada (2000), supra n. 44, at para. 154. [back]
55. Supra n.41. Ratified by U.S, November 20, 1994. [back]
56. Similar provisions under the Third Geneva Convention prohibit a State Party from making such transfers in relation to prisoners of war. See, supra n. 44, Article 12. [back]
57. Chahal v. United Kingdom, Eur. Ct. H.R,(15 November 1996) 1996-V Nº 22 (1996), at para. 1831. [back]
58. http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8248.htm [back]
59. http://web.amnesty.org/web/ar2002.nsf/mde/egypt!Open [back]
60. http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8266.htm [back]
61. http://web.amnesty.org/web/ar2002.nsf/mde/jordan!Open [back]
62. http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8277.htm [back]
63. http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8298.htm [back]
64. http://web.amnesty.org/web/ar2002.nsf/mde/syria!Open [back]
65. Loayza Tamayo Case, Provisional Measures, Inter-Am. Ct. H.R. (July 2, 1996) [back]
66. See, e.g., Loayza Tamayo Case, Provisional Measures, Inter-Am. Ct. H.R. (February 3, 2001) [back]
67. See e.g. Case of Haitians and Dominicans of Haitian Origin In the Dominican Republic,Provisional Measures, Inter-Am. Ct. H. R. (August 18, 2000) [back]
68. http://www.corteidh.or.cr/publicaciones_ing/..%5Cserieeing%5Cindex.html [back]
This document has been published on 26May03 by the Equipo Nizkor and Derechos Human Rights