ICHR requests for the US 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.

July 23, 2002

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

Dear Sirs and Madams:

On behalf of the Inter-American Commission on Human Rights, I wish to inform you that in a communication dated July 15, 2002, the Government of the United States replied to the Commission´s May 28, 2002 request for information in the above matter, following the granting to the State by the Commission of an extension of time within which to deliver its observations. A copy of the State´s response is appended to this communication.

I also wish to inform you that in a note of today´s date, the President of the Commission acknowledged receipt of the State´s second response and addressed the State in the following terms:

    The Commission has had an opportunity to review and consider the information provided by the parties respecting the Commission´s March 12, 2002 observations concerning your government´s first response, and the United States second response, referred to above.

    Based upon its review of this information, the Commission has decided to maintain the precautionary measures requested in its March 12, 2002 communication to Your Excellency´s government, and to reiterate its request for information concerning the measures taken to implement the Commission´s request.

    In proceeding in this manner, the Commission remains of the view that it has the competence and the responsibility to monitor the human rights situation of the detainees at issue and in so doing to look to and apply definitional standards and relevant rules of the international humanitarian law in interpreting and applying the provisions of the Inter-American human rights instruments in times of armed conflict.

    More particularly, as the Commission indicated in its initial request in this matter the interrelationship between international human rights and humanitarian law in situations of armed conflict is variable. In some respects the protections may complement and reinforce one another sharing as they do a common nucleus of non-derogable rights and a common purpose of promoting human life and dignity. In other respects, the test for evaluating the observance of a particular right in a situation of armed conflict may be distinct from that applicable in time of peace. The proper consequence of this circumstance is not. as the State would suggest, the exclusion of the Commission's competence to consider the situation of potential victims of human rights violations in armed conflict situations. Rather, international law. including the principles articulated in the jurisprudence of the International Court of Justice, |1| the Inter-American Court of Human Rights |2| and this Commission, |3| dictates that it may be necessary for the Commission to deduce the applicable human rights standard by reference to international humanitarian law as the applicable lex specials. But in all circumstances, the minimum regime of non-derogable human rights remain applicable and subject to supervision by the Commission.

    In this connection, the Commission must emphasize the importance of ensuring the availability of effective and fair mechanisms for determining the status of individual falling under the authority and control of a state, as it is upon the determination of this status that the rights and protections under domestic and international law to which those persons may be entitled depend. This fundamental prerequisite is reflected in the provisions of numerous international Instruments, including Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration, which must be interpreted and applied so as to be given practical effect. Partly for this reason, human rights supervisory bodies such as this Commission may raise doubts concerning the status of persons detained in the course of an armed conflict, as it has in the present matter, and require that such status be clarified to the extent that such clarification is essential to determine whether their human rights are being respected. In light of the principle of efficacy, it is not sufficient for a detaining power to simply assert its view as to the status of a detainee to the exclusion of any proper or effectual procedure for verifying that status.

    Notwithstanding this basic precept which underlies the Commission's present request for precautionary measures, the United States has not provided the Commission with any information concerning steps that have been taken to clarify the legal status of each of the detainees at Guantanamo Bay. Rather, it has reiterated the view asserted by the United States prior to the adoption of the Commission's measures, namely that the legal status of the detainees is clear because the Executive Branch of the US government considers that neither the Taliban nor the al Qaeda detainees meet the criteria applicable to lawful combatants under the Third Geneva Convention. The Commission has already determined, however, that doubts continue to exist concerning the legal status of the detainees, and that it remains entirely unclear from their treatment by the United States what minimum rights under international human rights and humanitarian law the detainees are entitled to. The United States has only said that it "is treating and will continue to treat ail of the individual detained at Guantanamo Bay humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention]." |4| While the Commission is encouraged that the United States intends to treat the detainees humanely, this statement appears to confirm the Commission's previous finding that, in the State's view, the nature and extent of rights afforded to the detainees remain entirely at the discretion of the US government. And as indicated by the Commission in its initial request, this is not sufficient to comply with the United States' international obligations.

    The additional information provided by the Petitioners in their observations May 13,2002, to which the United States chose not to respond in substance, have augmented the Commission's concerns. In particular, as indicated by the Petitioners and as reported in the media, the manner in which certain detainees at Guantanamo Bay were captured raises reasonable doubts concerning whether they belong to the enemy's armed forces or related groups. These detainees are alleged to include, for example, six Algerian citizens arrested by US authorities in Bosnia and ten Kuwaiti nationals arrested in Pakistan, Without more, this information raises further serious concerns regarding the legal status of each of the detainees at Guantanamo Bay and the international rights and protections to which they may be entitled.

    In light of the above considerations, the Commission hereby reiterates the request contained. In its communication of March 12, 2002 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.

Any observations that you may have with respect to the State´s second response, as well as information concerning implementation by the State of the Commission's March 12, 2002 request for precautionary measures should be sent within 30 days of receipt in order that the Commission may determine how to proceed in the matter.

Sincerely yours,
Ariel Dulitzky
In-charge of the Executive Secretariat


1. ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para. 25

2. I/A Court KR., Bamaca Velasquez Case, Judgment of November 25, 2000, Ser. C no, 70, para. 209.

3. Case No. 10.951, Report No. 109/99. Coard et al. v. United States, Annual Report of the IACHR 1999, para. 42: Case No. 11.137, Report No, 5/97, Abella v, Argentina. Annual Report of the IACHR 1997, para. 161.

4. Response of the United States dated April 11, 2002, pp. 32-33. citing White House Fact Sheet. Feb. 7, 2002. At 1.

Documentation Note: This communication was sent to Jennifer M. Green, Michael Ratner, Bill Goodman, Anthony DiCaprio & Beth Stephens from the Center for Constitutional Rights, on July 23, 2002.

State of Exception and Human Rights

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This document has been published on 22Jan04 by the Equipo Nizkor and Derechos Human Rights