COLONMUN 2008

Human Rights Council

TOPIC A: THE SITUATION IN GUANTANAMO BAY

Guantanamo Bay detention camp is a joint military prison and interrogation camp under the leadership of Joint Task Force Guantanamo since 2002. The prison, established at Guantanamo Bay Naval Base, holds people accused by the executive branch of the U.S. government of being al-Qaeda and Taliban operatives, as well as those no longer considered suspects who are being held pending relocation elsewhere. The detainment areas consist of three camps in the base: Camp Delta (which includes Camp Echo), Camp Iguana, and the now-closed Camp X-Ray. The facility is often referred to as Guantanamo, or Gitmo (derived from the abbreviation "GTMO").The detainees held by the United States were classified as "enemy combatants" - a term often criticized for being used in place of "Prisoners of War" after President Bush signed a memorandum stating that no Taliban or al-Qaeda detainee will qualify as a prisoner of war and that Article 3 common to the four Geneva Conventions will not apply to them either. Common Article 3 requires fair trial standards and prohibits torture, cruelty, and "outrages upon personal dignity, in particular humiliating and degrading treatment." Since the War in Afghanistan (2001–present) 775 detainees who have been brought to Guantanamo, approximately 420 have been released. As of August 09, 2007, approximately 355 detainees remained at Guantánamo Bay, Cuba. More than a fifth have been cleared for release but may have to wait months or years for their freedom because U.S. officials are finding it increasingly difficult to line up places to send them, according to Bush administration officials and defense lawyers. Of the roughly 355 still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest. Conditions Red Cross inspectors and released detainees have alleged acts of torture, including sleep deprivation, the use of so-called truth drugs, beatings and locking in confined and cold cells. Human rights groups argue that indefinite detention constitutes torture. The use of Guantánamo Bay as a military prison had started discussions from human rights organizations and other critics, who cite reports that detainees have been tortured or otherwise poorly treated. Supporters of the detention argue that trial review of detentions has never been afforded to prisoners of war, and that it is reasonable for enemy combatants to be detained until the cessation of hostilities. However, the detainees' status as potential or active terrorists, and the lack of any ratified treaties regarding treatment of captured terrorists, makes the situation particularly complicated.

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COLONMUN 2008
Human Rights Council

A U.S. district court partially agreed with the Bush administration, finding that the Geneva Conventions apply to Taliban fighters, but not to Al Qaeda terrorists. Amnesty International has called the situation "a human rights scandal" in a series of reports. Its also said there exist different types of religious intolerance inside the camp within the prisioners. Amnesty International said the apparent suicides "are the tragic results of years of arbitrary and indefinite detention" and called the prison "an indictment" of the Bush administration's human rights record. Saudi Arabia's state-sponsored Saudi Human Rights group blamed the U.S. for the deaths. Guantanamo officials have reported 41 unsuccessful suicide attempts by 25 detainees since the U.S. began taking prisoners to the base in January 2002. Defense lawyers contend the number of suicide attempts is higher. A U.N. panel said May 19 that holding detainees indefinitely at Guantanamo violated the world's ban on torture and the United States should close the detention center. As of August 2003, at least 29 inmates of Camp Delta had attempted suicide in protest. The U.S. officials would not say why they had not previously reported the incident. After this event the Pentagon reclassified suicides as "manipulative self-injurious behaviors" because it is alleged by camp physicians that detainees do not genuinely wish to end their lives. Civilians who directly engage in hostilities, are considered unlawful combatants or unprivileged combatants/belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action. Once a combatant is found by a competent tribunal to be an unlawful combatant, he or she no longer has the rights and privileges accorded to a prisoner of war (POW), but he retains all the rights any other civilian would have under municipal and international law in the same situation. Article 5 of the GCIII (Third Geneva Convention) states that the status of detainee may be determined by a "competent tribunal". Until such time, he is to be treated as a prisoner of war. After a "competent tribunal" has determined his status, the "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of the POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial". The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII). However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties which deny lawful combatant status for - 2-

COLONMUN 2008
Human Rights Council

mercenaries and children. In the United States, the Military Commissions Act of 2006 codified the legal definition of this term. The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law," because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action". Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. [...] [...] (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Mercenaries do not have the full protection of the Third Geneva Convention. The legal question on which the United States and many of its allies differ is the status of alQaeda members captured in combat. Taliban members could be and were released from U.S. custody, but the U.S. does not recognize al-Qaeda members as falling under this convention. According to the Conventions, a competent tribunal must determine whether the Guantanamo detainees have prisoner-of-war status or not. The U.S. has not done so as of date.

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COLONMUN 2008
Human Rights Council

Under international law, POWs can be held until the armed conflict has ended. The US claims to be applying the same duration to the people it is detaining. Once the war on terrorism has ended, the U.S. is obliged to return them to their countries of origin or charge them with crimes. Since the "War on Terror" is not a declared war against a specific state, it is unknown when that would be, and leaves open the possibility of detainees being held indefinitely. Camp Delta is comprised of at least 7 detention camps. These are Camps 1, 2, 3, 4, 5, 6 and Echo. Camps are numbered acording to the order of in which they were built; not based on their order of precedence or level of security. Three of these (Camps 3, 2, 1) are maximum-security camps that can house about 800 detainees who live in solitary confinement. Camp 5 and 6, more permanent concrete and steel structures, have a separate entrance then the camps contained in Camp Delta. Camp Iguana is also separate from Camp Delta. As of January 2005, Officials were also looking to build an improved facility to house detainees who have a serious mental illness (about 8% of the detainee population). They were also planning on building a high tech fence that surrounds the perimeter of Camp Delta, in an effort to reduce the number of guards that are needed. Camp X-Ray was a temporary detention facility located at the Joint Task Force Guantanamo on the U.S. Naval Base in Guantánamo Bay, Cuba. It was named Camp X-Ray because various temporary camps in the station were named sequentially from the beginning and then from the end of the NATO phonetic alphabet. The legal status of detainees at the camp has been a significant source of controversy, ultimately reaching the United States Supreme Court. Camp 3 Camp 3 is the highest level maximum-security facility at Camp Delta. When an enemy combatant first arrives, he is held at Camp 3. Camp 3 hold about 10% of the total detainees at Camp Delta.

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