48
●●●
Guantánamo
and no access to evidence or allegations against them, other than a summaryprepared by an officer. The boards do not apply international law, not even IHL.32. On 8 November 2004, the Columbia District Court ruled in the case of
Hamdan v. Rumsfeld
. In relation to a preliminary issue, the court stated that “theCSRT was not established to address detainees’ status under the Geneva Conventions.It was established to comply with the Supreme Court’s mandate in Hamdi to decide‘whether the detainee is properly detained as an enemy combatant’ for the pur-poses of continued detention … The government must convene a competenttribunal and seek a specific determination as to Hamdan’s status under the Genevaconventions. Until or unless such a tribunal decides otherwise, Hamdan has, andmust be accorded, the full protection of a prisoner of war.”
71
In the case of In reGuantánamo detainee cases (see above), the same court found that “the CSRT’sextensive reliance on classified information …, the detainee’s inability to reviewthat information, and the prohibition of assistance by counsel jointly deprive thedetainees of sufficient notice of the factual bases of their detention and deny thema fair opportunity to challenge their incarceration. These grounds alone are suf-ficient to find a violation of due process rights.”
Preliminary conclusions
33. The rapporteur agrees with the judgment in Hamdan, in so far as it relatesto the period during which the United States was at war with Afghanistan. TheUnited States acted unlawfully in refusing to acknowledge tribunals for determina-tion of the issue.
72
More generally, the rapporteur also concurs with detainees’status as POWs and in failing to convene competent tribunals, the In re Guantánamodetainee cases ruling that the CSRTs fail to provide minimum guarantees of dueprocess, and considers that the Administrative Review Boards are even moredeficient in this respect.ii. The absolute prohibition on torture and cruel, inhuman or degrading treat-ment or punishment34. The prohibition on torture and cruel, inhuman or degrading treatment is
juscogens
and is codified in Article 7 of the ICCPR; Article 10 of the ICCPR statesthat all persons deprived of their liberty shall be treated with humanity and with
71. Civil Action No. 04-1519, pp. 18-19.72. Since the international armed conflict in Afghanistan has now ceased, all detainees arenow entitled to the normal protections of international human rights law, regardless of whattheir status under IHL may previously have been.
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49
respect for the inherent dignity of the human person. Numerous relevant provi-sions are to be found in the Geneva Conventions.
73
35. “Cruel, inhuman or degrading treatment or punishment” is not defined inthe ICCPR. The rapporteur considers that these terms should be interpreted pri-marily in accordance with their ordinary meaning, as required by Article 31 of the1969 Vienna Convention on the Law of Treaties. The United Nations HumanRights Committee, in General Comment No. 20 on the prohibition on torture andcruel treatment or punishment, has given additional guidance, stating that Article7 “relates not only to acts that cause physical pain but also to acts that causemental suffering to the victim”. (It also stated that “prolonged solitary confinementof the detained or imprisoned person may amount to acts prohibited under Article7.”) In relation to Article 3 of the ECHR, the European Court of Human Rights hasruled that, in order to constitute a violation, mistreatment “must attain a minimumdegree of severity”, assessed by reference to “all the circumstances of the case,and in particular the nature and context, and the duration of the treatment, itsphysical or mental effects and, sometimes, the sex, age and state of health of theperson concerned”.
74
36. Torture is defined in international law by Article 1 of the United NationsConvention Against Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes asobtaining from him or a third person information or a confession, punishing himfor an act he or a third person has committed or is suspected of having committed,or intimidating or coercing him or a third person, or for any reason based ondiscrimination of any kind, when such pain or suffering is inflicted by or at theinstigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arisingonly from, inherent in or incidental to lawful sanctions.”37. On 16 April 2003, the Secretary of Defence, Donald Rumsfeld, approved alist of “counter-resistance techniques” for use during interrogations at Guantánamo.The latter document made clear the administration’s appreciation of the fact thatcertain of the techniques could contravene the Geneva Conventions. The approvedtechniques, which could be applied simultaneously and cumulatively, included thefollowing: significantly increasing the fear level in a detainee (using unspecified
73. See Common Article 3; Articles 13, 14, 17, 20, 46 and 87 of GC III; Articles 27, 32,
37 and 127 of GC IV; Articles 10 and 75 of the First Additional Protocol of 1949
(Protocol I); and Articles 4, 5 and 7 of the Second Additional Protocol of 1949 (Protocol II).Article 75 of Protocol I is broadly accepted to represent customary international law (seeMatheson, M.J., “The US position on the relation of customary international law to the 1977Protocols”, 2 AM. U. J. INT’L L. and POL’Y 415).74.
B. v. France
, judgment of 25 March 1992.
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Guantanamo: violation of human rights and international law?
What are the rights of the prisoners held by the United States at the base in Guantánamo Bay? Is their imprisonment lawful? Should we be thinking about strengthening the Geneva Conventions and changing international law? The…
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