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UNITED

NATIONS

Economic and Social

Council

Distr.

GENERAL

Future E/CN.4/2006/120

15 February 2006

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS

Sixty-second session

Items 10 and 11 of the provisional agenda

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

CIVIL AND POLITICAL RIGHTS

Situation of detainees at Guantánamo Bay

Report of the Chairperson of the Working Group on Arbitrary Detention, Ms. Leila

Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr.

Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, Mr. Manfred Nowak; the Special Rapporteur

on freedom of religion or belief, Ms. Asma Jahangir and the Special Rapporteur on

the right of everyone to the enjoyment of the highest attainable standard of physical

and mental health, Mr. Paul Hunt.

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Contents

Introduction

THE LEGAL FRAMEWORK

Human Rights and Counter-Terrorism Measures

The United States obligations under international law

Scope of the United States obligations under international human rights

law

Limitations and Derogations

The complementarity of international humanitarian law and human rights

law

II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND

LAWYERS

Deprivation of liberty at Guantánamo Bay

Detainees captured in the course of an armed conflict

Detainees captured in the absence of an armed conflict

The right to challenge the legality of detention before a judicial body

The right to be tried by a competent and independent tribunal

The right to a fair trial

III. TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT

Lack of clarity/confusing rules

Interrogation techniques

Conditions of detention

Use of excessive violence

Transfer, extraordinary rendition, non-refoulement

Lack of impartial investigation/impunity

IV. RELIGIOUS INTOLERANCE

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Applicable international standards

Reported human rights allegations

THE RIGHT OF EVERYONE TO THE ENJOYMENT OF THE HIGHEST

ATTAINABLE STANDARD OF PHYSICAL AND MENTAL HEALTH

Mental health

Ethical obligations of health professionals, including in relation to force-

feeding

VI. CONCLUSIONS

AND

RECOMMENDATIONS

Annex I: Endnotes

Annex II. Letter dated 31 January 2006, addressed to the Office of the High

Commissioner for Human Rights, by the Permanent Representative of the

United States of America to the United Nations and Other International

Organizations in Geneva

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Introduction

The present report is the result of a joint study conducted by the Chairperson of the

Working Group on Arbitrary Detention, the Special Rapporteur on the independence of

judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, the Special Rapporteur on freedom of religion or belief and the

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health (the right to the highest attainable standard of health

or the right to health).

Since January 2002, the five mandate holders have been following the situation of

detainees held at the United States Naval Base at Guantánamo Bay. In June 2004, they

decided to continue this task as a group because the situation falls under the scope of each of

the mandates. The focus of each mandate holder is on the law, allegations and

recommendations relevant to his or her mandate as defined by the relevant resolutions of the

Commission on Human Rights establishing the respective mechanism. However, the

mandate holders consider that they can better discharge their reporting obligations to the

Commission by submitting one joint report on this subject rather than five individual reports.

In studying the situation, they have continuously sought the cooperation of the United

States authorities and on 25 June 2004, they sent a letter, followed by several reminders,

requesting the United States Government to allow them to visit Guantánamo Bay in order to

gather first hand information from the prisoners themselves. By letter dated 28 October

2005, the Government of the United States of America extended an invitation for a one-day

visit to three of the five mandate holders, inviting them “to visit the Department of Defense’s

detention facilities [of Guantánamo Bay]”. The invitation stipulated that “the visit will not

include private interviews or visits with detainees”. In their response to the Government

dated 31 October 2005, the mandate holders accepted the invitation, including the short

duration of the visit and the fact that only three of them were permitted access, and informed

the United States Government that the visit was to be carried out on 6 December 2005.

However, they did not accept the exclusion of private interviews with detainees, as that

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would contravene the terms of reference for fact-findings missions by special procedures and

undermine the purpose of an objective and fair assessment of the situation of detainees held

in Guantánamo Bay. In the absence of assurances from the Government that it would comply

with the terms of reference, the mandate holders decided on 18 November 2005 to cancel the

visit.

The present report is therefore based on the replies of the Government to a

questionnaire concerning detention at Guantánamo Bay submitted by the mandate holders,

interviews conducted by the mandate holders with former detainees currently residing or

detained in France, Spain and the United Kingdom

and responses from lawyers acting on

behalf of some Guantánamo Bay detainees to questionnaires submitted by the mandate

holders. It is also based on information available in the public domain, including reports

prepared by non-governmental organizations (NGOs), information contained in declassified

official United States documents and media reports. The report raises a number of important

and complex international human rights issues. In view of the fact that an on-site visit was

not conducted and owing to page limitations, the report should be seen as a preliminary

survey of international human rights law relating to the detainees in Guantánamo Bay. In

accordance with usual practice, the United States Government was provided with a draft of

this report on 16 January 2006. In its reply of 31 January 2006, the Government requested

that its response be attached to the finalized report (see Annex). A number of revisions were

made to the draft report in the light of the Government’s reply of 31 January 2006.

According to the information provided by the United States Government as of 21

October 2005, approximately 520 detainees were held in Guantánamo Bay. From the

establishment of the detention centre in January 2002 until 26 September 2005, 264 persons

were transferred from Guantánamo, of whom 68 were transferred to the custody of other

Governments, including those of Pakistan, the Russian Federation, Morocco, the United

Kingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had designated

17 detainees eligible for trial by a military commission. Of those, the United States has since

transferred three to their country of origin, where they have been released. As of the end of

December 2005, a total of nine detainees had been referred to a military commission.

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THE LEGAL FRAMEWORK

Human rights and counter-terrorism measures

Following the 11September 2001 attacks on the United States, the Security Council

adopted resolution 1373 (2001) requiring all States to take a wide range of legislative,

procedural, economic, and other measures to prevent, prohibit, and criminalize terrorist acts.

The preamble of the resolution reaffirms “the need to combat by all means, in accordance

with the Charter of the United Nations, threats to international peace and security caused by

terrorist acts.”

In subsequent resolutions, the Security Council, as well as the General Assembly,

while recognizing the importance of the fight against terrorism, called for all “States [to]

ensure that any measure[s] taken to combat terrorism comply with all their obligations under

international law, in particular international human rights, refugee and humanitarian law”

This fundamental principle has been reaffirmed by the Secretary-General,

the High

Commissioner for Human Rights

and the Commission on Human Rights, which has called

on all relevant special procedures and mechanisms of the Commission, as well as the United

Nations human rights treaty bodies, to consider, within their mandates, the protection of

human rights and fundamental freedoms in the context of measures to combat terrorism.

The obligations of the United States under international law

The United States is party to several human rights treaties relevant to the situation of

persons held at Guantánamo Bay, most importantly the International Covenant on Civil and

Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Convention against Torture) and the International

Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

. On 5

October 1977, the United States signed the International Covenant on Economic, Social and

Cultural Rights (ICESCR), which it has not yet ratified. Some of the provisions of these

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treaties reflect norms of customary international law. The prohibition of torture moreover

enjoys

jus cogens

status.

The United States is also party to several international humanitarian law treaties

pertinent to the situation in Guantánamo Bay, primarily the Geneva Convention relative to

the Treatment of Prisoners of War (Third Convention) and the Geneva Convention relative

to the Protection of Civilian Persons in Time of War (Fourth Convention), of 12 August

1949, many provisions of which are considered to reflect customary international law.

Although the United States is not a party to the Additional Protocols I and II to the Geneva

Conventions, some of their provisions – in particular article 75 of Additional Protocol I – are

regarded as applicable as they have been recognized as declaratory of customary

international law.

Scope of the obligations of the United States under international human

rights law

10.

In accordance with article 2 of ICCPR, “each State Party …undertakes to respect and

to ensure to all individuals within its territory and subject to its jurisdiction the rights

recognized in the [ICCPR] without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other

status.”

11.

While article 2 refers to persons “within [a State Party’s] territory and subject to its

jurisdiction”, the Human Rights Committee, which monitors implementation of the

Covenant, has clarified that “a State party must respect and ensure the rights laid down in the

Covenant to anyone within the power or effective control of that State party, even if not

situated within the territory of the State party” .

Similarly, the International Court of Justice

(ICJ) in its advisory opinion on the

Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territories

recognized that the jurisdiction of States is primarily

territorial, but concluded that the ICCPR extends to “acts done by a State in the exercise of

its jurisdiction outside of its own territory”.

Accordingly, the particular status of

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Guantánamo Bay under the international lease agreement between the United States and

Cuba and under United States domestic law does not limit the obligations of the United

States under international human rights law towards those detained there. Therefore, the

obligations of the United States under international human rights law extend to the persons

detained at Guantánamo Bay.

Limitations and derogations

12.

ICCPR and other international human rights instruments include specific provisions

allowing States to limit, restrict or, in highly exceptional circumstances, derogate from

certain rights contained therein. Derogations are provided for under specific circumstances

that threaten the life of the nation. Article 4 (1) of ICCPR sets out a number of procedural

and substantive safeguards regarding derogation measures: the State must have officially

proclaimed a state of emergency; the derogation measures must be limited to those strictly

required by the exigencies of the situation; they must not be inconsistent with other

international obligations of the State; and they must not be discriminatory.

13.

Derogations are exceptional and temporary measures: “The Covenant requires that

even during an armed conflict measures derogating from the Covenant are allowed only if

and to the extent that the situation constitutes a threat to the life of the Nation” .

Derogation

measures must be lifted as soon as the public emergency or armed conflict ceases to exist.

Most importantly, derogation measures must be “strictly required” by the emergency

situation. This requirement of proportionality implies that derogations cannot be justified

when the same aim could be achieved through less intrusive means.

Following the events

of 11 September 2001, the United States has not notified any official derogation from

ICCPR, as requested under article 4 (3) of the Covenant, or from any other international

human rights treaty.

14.

Not all rights can be derogated from, even during a public emergency or armed

conflict threatening the life of a nation. Article 4 (2) of ICCPR stipulates which rights cannot

be subject to derogation. These include the right to life (art. 6), the prohibition of torture or

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cruel, inhuman or degrading treatment or punishment (art. 7), the recognition of everyone as

a person before the law (art. 16), and freedom of thought, conscience and religion (art. 18).

Although article 9 of the Covenant, enshrining the right to liberty and its corresponding

procedural safeguards, and article 14, providing for the right to a fair trial, are not among the

non-derogable rights enumerated in article 4, the Human Rights Committee has indicated in

its general comment No. 29 (2001) that “procedural safeguards may never be made subject

to measures that would circumvent the protection of non-derogable rights.” Thus, the main

elements of articles 9 and 14, such as habeas corpus, the presumption of innocence and

minimum fair trial rights, must be fully respected even during states of emergency.

The complementarity of international humanitarian law and human

rights law

15.

The application of international humanitarian law and of international human rights

law are not mutually exclusive, but are complementary. As stated by the Human Rights

Committee in general comment No. 31 (2004):

“the Covenant applies also in situations of armed conflict to which the rules of

international humanitarian law are applicable. While in respect of certain Covenant

rights, more specific rules of international humanitarian law may be especially

relevant for the purpose of the interpretation of the Covenant rights, both spheres of

law are complementary, not mutually exclusive.”

16.

In its advisory opinion on the

Legality of the Threat or Use of Nuclear Weapons,

ICJ

clearly affirmed the applicability of ICCPR during armed conflicts. The Court stated that

“the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of

what constitutes an arbitrary deprivation of life, however, then must be determined by the

applicable

lex specialis

, namely, the law applicable in armed conflict”.

The Court

confirmed its view in its advisory opinion on the

Legal Consequences of the Construction of

a Wall in the Occupied Palestinian Territories

: “the protection offered by human rights

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conventions does not cease in case of armed conflict, save through the effect of provisions

for derogation of the kind to be found in article 4 of the [ICCPR]”

II.

ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND

LAWYERS

17.

The Chairperson of the Working Group on Arbitrary Detention

and the Special

Rapporteur on the independence of judges and lawyers are deeply concerned about the

legal regime applied by the United States to the detainees in the Guantánamo Bay

detention centre. In their view, the legal regime applied to these detainees seriously

undermines the rule of law and a number of fundamental universally recognized human

rights, which are the essence of democratic societies. These include the right to challenge

the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair

trial by a competent, independent and impartial court of law (ICCPR, art. 14); they

protect every person from arbitrary detention and unjust punishment and safeguard the

presumption of innocence.

18.

The legal regime imposed on detainees at Guantánamo is regulated by the

Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War

Against Terrorism of 13 November 2001

(hereafter referred to as the “Military Order”).

It allows suspects to be detained indefinitely without charge or trial, or to be tried before

a military commission. This section assesses the legal basis for detention and the

remedies available to challenge detention from the perspective of the two above-

mentioned mandates. It then assesses whether these military commissions satisfy the

minimum international law requirements of a fair trial and an independent tribunal, in

particular as set out in article 14 of ICCPR and in the Basic Principles on the

Independence of the Judiciary and the United Nations Basic Principles on the Role of

Lawyers.

Deprivation of liberty at Guantánamo Bay

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19.

The fundamental proposition of the United States Government with regard to the

deprivation of liberty of persons held at Guantánamo Bay is that “[t]he law of war allows

the United States – and any other country engaged in combat – to hold enemy combatants

without charges or access to counsel for the duration of hostilities. Detention is not an act

of punishment but of security and military necessity. It serves the purpose of preventing

combatants from continuing to take up arms against the United States”.

While the

Chairperson of the Working Group and the Special Rapporteur would not use the term

“enemy combatant”, they share the understanding that any person having committed a

belligerent act in the context of an international armed conflict and having fallen into the

hands of one of the parties to the conflict (in this case, the United States) can be held for

the duration of hostilities, as long as the detention serves the purpose of preventing

combatants from continuing to take up arms against the United States. Indeed, this

principle encapsulates a fundamental difference between the laws of war and human

rights law with regard to deprivation of liberty. In the context of armed conflicts covered

by international humanitarian law, this rule constitutes the

lex specialis

justifying

deprivation of liberty which would otherwise, under human rights law as enshrined by

article 9 of ICCPR, constitute a violation of the right to personal liberty.

20.

The United States justifies the indeterminate detention of the men held at

Guantánamo Bay and the denial of their right to challenge the legality of the deprivation

of liberty by classifying them as “enemy combatants”. For the reasons the Chairperson of

the Working Group and the Special Rapporteur will elaborate, to the extent permitted by

the constraints of this report, the ongoing detention of the Guantánamo Bay detainees as

“enemy combatants” does in fact constitute arbitrary deprivation of the right to personal

liberty.

21.

Because detention “without charges or access to counsel for the duration of

hostilities” amounts to a radical departure from established principles of human rights

law, it is particularly important to distinguish between the detainees captured by the

United States in the course of an armed conflict and those captured under circumstances

that did not involve an armed conflict. In this context, it is to be noted that the global

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struggle against international terrorism does not, as such, constitute an armed conflict for

the purposes of the applicability of international humanitarian law.

Detainees captured in the course of an armed conflict

22.

The Third Geneva Convention provides that where, in the context of “cases of

declared war or of any other armed conflict which may arise between two or more of the

High Contracting Parties” (art. 2(1)), a person “having committed a belligerent act and

having fallen into the hands of the enemy” may be detained as prisoner of war until the

end of the hostilities. The Fourth Geneva Convention allows a party to the conflict to

detain (“intern”) civilians because they constitute a threat to the security of the Party or

intend to harm it (arts. 68, 78 and 79), or for the purposes of prosecution on war crimes

charges (art. 70). Once the international armed conflict has come to an end, prisoners of

war and internees must be released,

although prisoners of war and civilian internees

against whom criminal proceedings for an indictable offence are pending may be

detained until the end of such proceedings.

As the rationale for the detention of

combatants not enjoying prisoner of war status is to prevent them from taking up arms

against the detaining power again, the same rule should be applied to them. In other

words, non-privileged belligerents must be released or charged once the international

armed conflict is over.

23.

The indefinite detention of prisoners of war and civilian internees for purposes of

continued interrogation is inconsistent with the provisions of the Geneva Conventions

Information obtained from reliable sources and the interviews conducted by the special

procedures mandate holders with former Guantánamo Bay detainees confirm, however,

that the objective of the ongoing detention is not primarily to prevent combatants from

taking up arms against the United States again, but to obtain information and gather

intelligence on the Al-Qaeda network.

24.

The Chairperson of the Working Group and the Special Rapporteur note that,

while United States Armed Forces continue to be engaged in combat operations in

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Afghanistan as well as in other countries, they are not currently engaged in an

international armed conflict between two Parties to the Third and Fourth Geneva

Conventions. In the ongoing non-international armed conflicts involving United States

forces, the

lex specialis

authorizing detention without respect for the guarantees set forth

in article 9 of ICCPR therefore can no longer serve as basis for that detention.

Detainees captured in the absence of an armed conflict

25.

Many of the detainees held at Guantánamo Bay were captured in places where

there was – at the time of their arrest – no armed conflict involving the United States. The

case of the six men of Algerian origin detained in Bosnia and Herzegovina in October

2001 is a well-known and well-documented example,

but also numerous other detainees

have been arrested under similar circumstances where international humanitarian law did

not apply. The legal provision allowing the United States to hold belligerents without

charges or access to counsel for the duration of hostilities can therefore not be invoked to

justify their detention.

26.

This does not of course mean that none of the persons held at Guantánamo Bay

should have been deprived of their liberty. Indeed, international obligations regarding the

struggle against terrorism might make the apprehension and detention of some of these

persons a duty for all States. Such deprivation of liberty is, however, governed by human

rights law, and specifically articles 9 and 14 of ICCPR. This includes the right to

challenge the legality of detention before a court in proceedings affording fundamental

due process rights, such as guarantees of independence and impartiality, the right to be

informed of the reasons for arrest, the right to be informed about the evidence underlying

these reasons, the right to assistance by counsel and the right to a trial within a reasonable

time or to release. Any person deprived of his or her liberty must enjoy continued and

effective access to habeas corpus

proceedings, and any limitations to this right should be

viewed with utmost concern.

The right to challenge legality of detention before a judicial body

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27.

The Chairperson of the Working Group and the Special Rapporteur recall that

detainees at Guantánamo Bay were deprived of their right to challenge the lawfulness of

their detention and of their right to legal counsel for several years, until a United States

Supreme Court decision granted detainees access to federal courts. In June 2004, the

Supreme Court, in

Rasul v. Bush,

held that United States courts have the jurisdiction to

consider challenges to the legality of the detention of foreign nationals detained at the

Guantánamo Bay Naval Base. However, at the time of writing (i.e. more than four years

after detention at Guantánamo Bay started), not a single habeas corpus

petition has been

decided on the merits by a United States Federal Court.

28.

In light of the

Rasul

judgement, the Government, on 7 July 2004, created the

Combatant Status Review Tribunal (CSRT), a body composed of three non-

commissioned officers, to examine the legality of detentions. Thereafter, the United

States District Court dealing with the habeas corpus petitions of the Guantánamo

detainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity to

challenge their incarceration” and thus fail to comply with the terms of the Supreme

Court’s ruling

. According to information received from the Government, all persons

currently held at Guantánamo Bay had their status reviewed by the CSRT.

The United

States further established, on 11 May 2004, Administrative Review Boards (ARBs) to

provide an annual review of the detention of each detainee. These institutions do not

satisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … detained on a criminal

charge shall be brought promptly before a judge or other officer authorized by law to

exercise judicial power and shall be entitled to trial within a reasonable time or to

release”: the requirement in article 9 (4) of ICCPR that “[a]nyone who is deprived of his

liberty by arrest or detention shall be entitled to take proceedings before a court, in order

that that court may decide without delay on the lawfulness of his detention and order his

release if the detention is not lawful”, or the requirements of article 14 of ICCPR, as:

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(a)

The CSRTs and ARBs do not comprise the guarantees of independence

essential to the notions of a “court” (art. 9 (4)) or “exercise of judicial power” (art.

9(3));

(b)

Detainees’ defence counsel whom the mandate holders met raised serious

concerns regarding CSRT and ARB procedural rules, which do not provide the

detainees with a defence counsel.

Moreover, the restrictions on detainees’ right

to be present at hearings in their case and on their access to the information and

evidence on which the allegation that they are unlawful belligerents is based

undermine the legality and legitimacy of the process;

(c)

The interviews conducted by the mandate holders with detainees

corroborated allegations that the purpose of the detention of most of the detainees

is not to bring criminal charges against them but to extract information from them

on other terrorism suspects. Indeed, four years after the establishment of the

detention facility, none of the inmates has been tried and the proceedings of only

nine persons detained at Guantánamo Bay are close to the trial stage;

(d)

It would appear that in determining the status of detainees the CSRT has

recourse to the concepts recently and unilaterally developed by the United States

Government, and not to the existing international humanitarian law regarding

belligerency and combatant status; and

(e)

Even where the CSRT determines that the detainee is not an “enemy

combatant” and should no longer be held, as in the case of the Uighurs held at

Guantánamo Bay nine months after the CSRT determined that they should be

freed, release might not ensue.

29.

The concerns raised by the shortcomings of the CSRT and ARB procedures are

aggravated by the Detainee Treatment Act of 2005, which provides that “no court, or

judge shall have jurisdiction to hear or consider (1) an application for a writ of habeas

corpus filed by or on behalf of an alien detained by the Department of Defense at

Guantanamo Bay, Cuba”.

The exception hereto is that the United States Court of

Appeals for the District of Columbia retains jurisdiction to determine the validity of any

final decision of a CSRT. However, the jurisdiction of the Court of Appeals only extends

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to examining whether the procedures were properly followed, and not to the merits of the

CSRT decision.

Right to be tried by a competent and independent tribunal

30.

Article 14 (1) of ICCPR states that in criminal proceedings “everyone shall be

entitled to a fair and public hearing by a competent, independent and impartial tribunal

established by law”.

The Basic Principles on the Independence of the Judiciary also

recognize that “everyone shall have the right to be tried by ordinary courts or tribunals

using established legal procedures. Tribunals that do not use the duly established

procedures of the legal process shall not be created to displace the jurisdiction belonging

to the ordinary courts or judicial tribunals”

. The Military Order provides that detainees

must be tried by the Military Commission created ad hoc for Guantánamo detainees and

denies them the well-established procedures of ordinary civilian courts or military

tribunals.

31.

The Human Rights Committee in general comment No. 13 (1984) interpreted

article 14 of ICCPR to mean that the basic requirements for a fair trial within article 14

apply both to ordinary and specialized tribunals.

In noting the existence in certain

countries of military tribunals which try civilians, the Committee considered that “this

could present serious problems as far as the equitable, impartial and independent

administration of justice is concerned” and that “quite often the reason for the

establishment of such courts is to enable exceptional procedures to be applied which do

not comply with normal standards of justice”. The Committee concludes that “the trying

of civilians by such courts should be very exceptional and take place under conditions

which genuinely afford the full guarantees stipulated in article 14”

. Military

commissions should therefore also fully comply with the provisions set out in article 14

and respect the guarantees for a fair trial.

32.

The proceedings before military commissions at Guantánamo Bay are hard to

reconcile with article 14 of ICCPR. According to the military order, the judges of the

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commissions are appointed by the “Appointing Authority”, which is under the authority

and the responsibility of the Department of Defense and ultimately of the President.

Judges should be commissioned officers of the armed forces and may be removed by the

Appointing Authority. Such provisions suggest not only interference by but full control

over the commissions’ judges by the executive: the requirement of an independent

judiciary is clearly violated. In addition, there appears to be no impartial judicial

mechanism for resolving conflict of jurisdiction: decisions on issues of jurisdiction and

competence are made by the Appointing Authority, leaving the military commissions

outside the control of judicial authorities.

33.

Finally, the Military Order requires only a minimum level of legal knowledge for

appointment to the commissions. The inadequate qualifications of the members impede

the regular and fair conduct of the hearings, violating the essential requirement that

“persons selected for judicial office shall be individuals of integrity and ability with

appropriate training or qualifications in law”.

The detainees’ right to be tried by judges

sufficiently competent in law is violated although Revised Military Commission Order

No.1 mitigates this by allocating responsibility for ruling on most questions of law to the

presiding officer, who must be a judge advocate of any of the United States Armed

Forces.

The right to a fair trial

34.

The right to a fair trial is recognized in article 14 of ICCPR, as well as articles 105

and 106 of the Third Geneva Convention and article 75 of the Additional Protocol I (this

last article is considered to be declaratory of customary law)

. The fundamental

principles of the right to a fair trial cannot be derogated from by any State, under any

circumstances, as affirmed by the Human Rights Committee in its general comment No.

29.

The Military Order recognizes the duty to “provide a full and fair trial”, but its

provisions do not guarantee that right.

35.

The Military Order limits the right to be tried in one’s presence. Also, the right of

the accused to defend himself/herself in person or through legal assistance of his/her own

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choosing is violated since, as noted above, the Military Commissions provide for a

defence counsel to be appointed directly by the Appointing Authority, and for the

possibility of his/her removal by the same authority “for good reason”. Under the

Military Order the accused may retain the services of a civilian attorney of his own

choosing, but that attorney has to satisfy a number of requirements, including being

determined eligible for access to classified information

signing confidentiality

agreements regarding the procedures and the cases he or she is involved with, traveling to

Guantánamo at his own expenses, and agreeing not to leave the base without

authorization. In addition, certain information and evidence may be kept from the civilian

lawyer and he or she may be excluded from the hearing for reasons of national security.

All of these requirements imperil the right to a fair trial under article 14(1) of ICCPR and

specific “minimum guarantees” set forth in article 14(3)(b) and (d): to be allowed to

adequately prepare one’s defense, with the assistance of counsel of one’s own choosing,

and to test evidence adduced against one. They further clearly violate the Basic Principles

on the Role of Lawyers

36.

The right adequately to prepare one’s defence (ICCPR, art. 14(3) (b) and the

Basic Principles on the Role of Lawyers)

, which includes access to documents and

other evidence and to examine witnesses against oneself and have witnesses examined on

one’s behalf is not guaranteed, since the Military Order provides that “[t]he Accused

may obtain witnesses and documents for the Accused's defense, to the extent necessary

and reasonably available as determined by the Presiding Officer”.

The grounds for

denying the accused and the defence counsel of his choice access to “protected

information” remain excessively broad also under Revised Military Commission Order

No. 1 of August 2005, which brought some improvement to the Military Order of March

2002 in this respect. However, by virtue of the Detainee Treatment Act of December

2005 a United States Court of Appeals now has jurisdiction to assess whether the

commission provided the defendant a “full and fair trial”, and whether the admission of

evidence the accused has not seen was compatible with his right to a fair trial.

Nonetheless, the Chairperson of the Working Group and the Special Rapporteur remain

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highly concerned that the right adequately to prepare one’s defence is insufficiently

protected in proceedings before military commissions.

37.

The Chairperson of the Working Group and the Special Rapporteur are also

concerned about the conditions under which information is obtained from detainees at

Guantánamo Bay. They have been informed by former detainees that the power to

mitigate the harsh conditions of detention is in the hands of interrogators and depends on

the degree of “cooperation” with them. Detainees are subjected to regular interrogations

and put under strong pressure to confess that they are members of Al-Qaeda and/or to

incriminate other persons. The gathering of evidence in such conditions affects the

credibility of any charges brought against them or against other persons.

38.

The right to be tried without undue delay (ICCPR, art.14 (3) (c)) relates both to

the time by which the trial should commence and the time by which it should end

. Out

of a total of more than 500 detainees presently held at Guantánamo Bay, fewer than 10

have so far been referred to a military commission. The vast majority of the Guantánamo

detainees have not been charged with an offence after several years of detention.

they continue to be detained, the detainees’ right to be tried without undue delay is being

violated.

39.

Concerning the right to a public hearing, the Military Order authorizes the court,

for unspecified “national security” reasons, to conduct trials in secret.

40.

Finally, the decisions of the military commissions were previously only

reviewable by a panel appointed by the Secretary of Defense, with a final review being

available to the President of the United States. The Detainee Treatment Act of December

2005 has given the United States Court of Appeals for the District of Columbia

jurisdiction to determine the validity of any final decision rendered by a military

commission. However, the scope of such review is very limited. The right to an appeal

before an independent tribunal, enshrined in article 14 (5) of ICCPR, is consequently also

severely restricted.

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III.

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

41.

The right not to be subjected to torture or cruel, inhuman or degrading treatment

or punishment is explicitly affirmed in article 7 of ICCPR. The Convention against

Torture defines torture, and details measures to be taken by States parties to prevent acts

of torture and other cruel, inhuman or degrading treatment or punishment.

42.

Article 2 (2) of the Convention states that: “No exceptional circumstances

whatsoever, whether a state of war or a threat of war, internal political instability or any

other public emergency, may be invoked as a justification of torture.” The right to be free

from torture and cruel, inhuman or degrading treatment or punishment is a non-derogable

right, and therefore no exceptional circumstances may be invoked to justify derogation.

The Human Rights Committee and the Committee against Torture have consistently

emphasized the absolute character of the prohibition of torture and underlined that this

prohibition cannot be derogated from in any circumstances, even in war or while fighting

terrorism.

43.

The prohibition of torture and “outrages upon personal dignity, in particular

humiliating and degrading treatment” is also contained in common article 3 of the

Geneva Conventions of 1949, to which the United States is a party. Moreover, the

prohibition of torture is part of

jus cogens

. Torture and other inhumane acts causing

severe pain or suffering, or serious injury to the body or to mental or physical health are

also prohibited under international criminal law and in certain instances can amount to

crimes against humanity and war crimes.

44.

The prohibition of torture provided by the relevant international standards, in

particular the Convention against Torture, also encompasses the principle of non-

refoulement (art. 3 ), the obligation to investigate alleged violations promptly and bring

perpetrators to justice, the prohibition of incommunicado detention, and the prohibition of

the use of evidence obtained under torture in legal proceedings.

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45.

In view of the foregoing, the United States has the obligation to fully respect the

prohibition of torture and ill-treatment. The Special Rapporteur on torture notes the

reservations to the Convention and ICCPR made by the United States, indicating that it

considers itself bound by the prohibition of cruel, inhuman and degrading treatment only

to the extent that it means the cruel, unusual and inhumane treatment or punishment

prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the

United States.

In this regard, he would like to recall the concerns of the relevant treaty

bodies, which deplored the failure of the United States to include a crime of torture

consistent with the Convention definition in its domestic legislation and the broadness of

the reservations made by the United States.

A. Lack of clarity/confusing rules

46.

Beginning in 2001, the Administration of the United States, while officially

reiterating its adherence to the absolute prohibition of torture,

has put in place a number

of policies that effectively weaken the prohibition. A concrete example is the

memorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney General for

the Office of Legal Council at the Department of Justice and now federal judge, to

Alberto Gonzales, then Counsel to the President of the United States and now Attorney

General, which attempts to significantly narrow the definition of torture and claims that

the necessity of self-defence can justify violations of the law prohibiting the use of

torture.

The Special Rapporteur notes that, as indicated in the response by the United

States Government to the questionnaire of 21 October 2005, this memorandum was

superseded by a Department of Justice memorandum dated 30 December 2004.

47.

However, several subsequent internal Department of Defense memoranda have

sought to widen the boundaries of what is permissible in terms of “counter- resistance

techniques” (see also section B below). On 16 April 2003, a memorandum which is

currently in force was issued, authorizing 24 specific techniques. Its introduction states

that “US Armed Forces shall continue to treat detainees humanely and, to the extent

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appropriate and consistent with military necessity, in a manner consistent with the

principles of the Geneva Conventions.”

This formulation is ambiguous in that it implies

that military necessity may override the principles of the Geneva Conventions. In this

context, the Special Rapporteur also notes that in its reply to the questionnaire the United

States exclusively uses the term “torture” and makes no reference to “cruel, inhuman and

degrading treatment and punishment”.

48.

The debate in the Senate on 5 October 2005 is telling.

Senator McCain,

describing the confusion that exists regarding authorized and unauthorized interrogation

techniques, said: “What this also means is that confusion about the rules becomes

rampant again. We have so many differing legal standards and loopholes that our lawyers

and generals are confused. Just imagine our troops serving in prison in the field.”

The

Special Rapporteur welcomes that the acceptance made on 15 December 2005 by

President Bush of the McCain amendment to the Department of Defense Appropriations

Bill prohibiting cruel, inhuman and degrading treatment or punishment (CIDT) with

regard to persons kept in detention by the Department of Defense and in the custody or

control of the United States Government worldwide, thereby clarifying the confusing

rules and codifying the prohibition of CIDT.

He also considers a significant progress

the failure of the attempts of Vice-President Cheney and CIA Director Goss to explicitly

exempt the CIA from the legal prohibition of CIDT.

B. Interrogation techniques

49.

Following the ambiguous interpretations of what constitutes torture and ill-

treatment detailed in Section A, the following interrogation techniques, which clearly

went beyond earlier practice (as contained in Army Field Manual FM 34-52), were

approved by the Secretary of Defense on 2 December 2002.

•

“The use of stress positions (like standing) for a maximum of four hours;

•

Detention in isolation up to 30 days;

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•

The detainee may have a hood placed over his head during transportation and

questioning;

•

Deprivation of light and auditory stimuli;

•

Removal of all comfort items;

•

Forced grooming (shaving of facial hair, etc);

•

Removal of clothing;

•

Interrogation for up to 20 hours and

•

Using detainees’ individual phobias (such as fear of dogs) to induce stress.”

50.

After having rescinded the above memorandum on 15 January 2005

, the

Secretary of Defense on 16 April 2003 authorised the following techniques which remain

in force

•

“B. Incentive/Removal of Incentive i.e. comfort items;

•

S. Change of Scenery Down might include exposure to extreme temperatures and

deprivation of light and auditory stimuli;

•

U. Environmental Manipulation: Altering the environment to create moderate

discomfort (e.g. adjusting temperature or introducing an unpleasant smell).

•

V. Sleep Adjustment; Adjusting the sleeping times of the detainee (e.g. reversing

sleep cycles from night to day) This technique is not sleep deprivation.

•

X. Isolation: Isolating the detainee from other detainees while still complying

with basic standards of treatment.”

51.

These techniques meet four of the five elements in the Convention definition of

torture (the acts in question were perpetrated by government officials; they had a clear

purpose, i.e. gathering intelligence, extracting information; the acts were committed

intentionally; and the victims were in a position of powerlessness). However, to meet the

Convention definition of torture, severe pain or suffering, physical or mental, must be

inflicted. Treatment aimed at humiliating victims may amount to degrading treatment or

punishment, even without intensive pain or suffering. It is difficult to assess in abstracto

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whether this is the case with regard to acts such as the removal of clothes. However,

stripping detainees naked, particularly in the presence of women and taking into account

cultural sensitivities, can in individual cases cause extreme psychological pressure and

can amount to degrading treatment, or even torture. The same holds true for the use of

dogs, especially if it is clear that an individual phobia exists.

Exposure to extreme

temperatures, if prolonged, can conceivably cause severe suffering.

52.

On the interviews conducted with former detainees, the Special Rapporteur

concludes that some of the techniques, in particular the use of dogs, exposure to extreme

temperatures, sleep deprivation for several consecutive days

and prolonged isolation

were perceived as causing severe suffering.

He also stresses that the simultaneous use

of these techniques is even more likely to amount to torture. The Parliamentary Assembly

of the Council of Europe also concluded that many detainees had been subjected to ill-

treatment amounting to torture, which occurred systematically and with the knowledge

and complicity of the United States Government.

The same has been found by Lord

Hope of Craighead, member of the United Kingdom’s House of Lords, who stated that

“some of [the practices authorized for use in Guantánamo Bay by the United States

authorities] would shock the conscience if they were ever to be authorized for use in our

own country”.

C. Conditions of detention

53.

Whereas it is conceivable that in the beginning the conditions of detention put in

place

were determined for reasons of order and security, they then seem to have been

used to “counter resistance” and to cause stress.

Moreover, they were closely linked

with investigation techniques.

There is plentiful evidence indicating that policies aimed

at forcing detainees to cooperate such as withholding of clothes or of hygienic products,

permanent light in the cells,

no talking,

cultural and religious harassment,

sensory

deprivation, intimidation, and the deliberate uncertainty generated by the indeterminate

nature of confinement and the denial of access to independent tribunals, were used and

led to serious mental health problems

. Moreover, prolonged detention in Maximum

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Security Units clearly had the effect of putting pressure on detainees.

Reports indicate

that although 30 days of isolation was the maximum period permissible, detainees were

put back in isolation after very short breaks, so that they were in quasi-isolation for up to

18 months.

According to the jurisprudence of the Human Rights Committee, prolonged

solitary confinement and similar measures aimed at causing stress violate the right of

detainees under article 10 (1) ICCPR to be treated with humanity and with respect for the

inherent dignity of the human person, and might also amount to inhuman treatment in

violation of article 7 ICCPR.

D. Use of excessive violence

54.

There are recurrent reports of three contexts in which excessive force was

routinely used: during transportation,

with regard to operations by the “Initial Reaction

Forces” (IRF), and by force-feeding during hunger strikes. The last is briefly dealt with in

section V on the right to health. According to reports by the defence counsels, some of

the methods used to force-feed definitely amounted to torture.

In the absence of any

possibility of assessing these allegations in situ by means of private interviews with

detainees subjected to forced feeding, as well as with doctors, nurses and prison guards,

the allegations, which are well substantiated, must be held to be accurate. Treatment

during transport and IRF operations is documented by photo

and video material.

These pictures indicate that during transport and IRF operations, detainees shackled,

chained, hooded, forced to wear earphones and goggles. They also show beating, kicking,

punching, but also stripping and force shaving by IRF where detainees resisted, which

have been corroborated by testimonies of former detainees.

The Special Rapporteur

considers that such treatment amounts to torture, as it inflicts severe pain or suffering on

the victims for the purpose of intimidation and/or punishment.

E. Transfer, extraordinary rendition, non-refoulement

55.

There have been consistent reports about the practice of rendition and forcible

return of Guantánamo detainees to countries where they are at serious risk of torture. An

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example is the transfer of Mr. Al Qadasi to Yemen in April 2004. He has since been

visited by his lawyer and international NGOs. According to his lawyer, he was not

warned about his imminent return to Yemen and therefore had no possibility to appeal. In

early April he received an injection against his will, which led to loss of consciousness

and hallucinations. When he woke up several days later, he found himself in prison in

Sana’a , where he alleges he was been beaten and deprived of food.

On the basis of the

information available to him, the Special Rapporteur takes the view that the United States

practice of “extraordinary rendition” constitutes a violation of article 3 of the Convention

against Torture and article 7 of ICCPR.

F. Lack of impartial investigation/impunity

56.

As noted elsewhere in this report, detainees did not have access to judicial

procedures for prolonged periods. Investigations into allegations of torture or CIDT were

conducted by different parts of the executive branch,

and lacked impartiality. No

independent judicial investigation seems to have taken place into any allegations of

torture or ill-treatment, a clear violation of international minimum standards.

Consequently, no one was brought to justice for having committed acts of torture.

It is

of concern that there appear to have been attempts to ensure impunity for perpetrators of

torture or ill-treatment.

The Special Rapporteur takes the view that the lack of any

independent investigation into the various allegations of torture and ill-treatement at

Guantánamo Bay amount to a violation of the obligations of the United States under

articles 12 and 13 of the Convention against Torture. He therefore agrees with the

European Parliament’s call on the United States administration to “allow an impartial and

independent investigation into allegations of torture and mistreatment for all persons

deprived of their liberty in US custody”.

IV. FREEDOM OF RELIGION OR BELIEF AND RELIGIOUS INTOLERANCE

A. Applicable international standards

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57.

The right to freedom of religion or belief is protected by article 18 of ICCPR and the

1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief. In its general comment No. 22, the Human

Rights Committee interprets article 18 to the effect that “persons already subject to certain

legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their

religion or belief to the fullest extent compatible with the specific nature of the constraint.”

A person deprived of his or her liberty cannot be deprived of his or her right to freedom or

religion or belief. These standards must be applied to every person, regardless of their

religion or belief, and in all detention facilities.

58.

Article 18 (3) ICCPR provides that “[f]reedom to manifest one's religion or beliefs

may be subject only to such limitations as are prescribed by law and are necessary to protect

public safety, order, health, or morals or the fundamental rights and freedoms of others.”

On these limitations, the Committee “observes that paragraph 3 of article 18 is to be strictly

interpreted: restrictions are not allowed on grounds not specified there, even if they would be

allowed as restrictions to other rights protected in the Covenant, such as national security.”

Moreover, under article 4 of ICCPR, the right to freedom of religion or belief may in no

circumstances be subject to derogation.

59.

Finally, the Third and Fourth Geneva Conventions oblige parties to respect the

religion and religious practices of persons deprived of their liberty in the context of an armed

conflict, including prisoners of war, interned persons and other types of detainees. This

includes the freedom to practise one’s religion, the access to clergy, and the prohibition of

discrimination on the basis of religion.

B. Reported allegations

60.

The review of a number of official documents and reports as well as information

obtained on the basis of interviews reveal that certain interrogation techniques that were

especially degrading for members of certain religions were authorized by the United States

authorities.

Other treatments which may have been specifically designed to offend the

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religious sensitivities of the detainees, were repeatedly used by those involved in the

custody, interrogation and treatment of detainees (e.g. use of female interrogators, who

performed, inter alia, “lap dances during interrogations”

). It was also reported that these

techniques were used before prayer times and that in some cases, detainees were not allowed

to wash themselves before and therefore were not able to pray.

61.

The list of officially approved interrogation techniques in force today

allows for the

removal of religious items (e.g. the Holy Koran). This constitutes an impermissible

limitation on the right to freedom of religion or belief of detainees.

62.

There was particular concern at reports of possible mishandling of religious objects,

such as the Holy Koran. The Special Rapporteur on freedom of religion or belief sent a

communication on this matter to the Government of the United States on 23 May 2005. The

Government reply of 18 August 2005 provided detailed information on the investigations

that were conducted following these allegations, as well as on the existing measures and

guidelines for the personnel of the detention facilities. As a result of their investigations, the

Government indicated that it had identified five confirmed cases of mishandling of the Holy

Koran by guards and interrogators, either intentionally or unintentionally, including kicking

and stepping on the Holy Koran.

63.

A number of detainees have alleged that they were subjected to forced grooming,

including shaving of beards, heads and eyebrows.

64.

Further concerns were raised by the removal of a military Muslim cleric from his

position at Guantánamo Bay. He later was arrested on suspicion of espionage and held in

solitary confinement for 76 days. It has been alleged that he has not been replaced, leaving

the Muslim detainees unattended, in violation of the Standard Minimum Rules for the

Treatment of Prisoners.

65.

Finally, there are also concerns about reports that the United States Government has,

either implicitly or explicitly, encouraged or tolerated the association of between Islam and

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terrorism, for example, by interrogating detainees on the extent of their faith in Islamic

teachings.

THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF

HEALTH

66.

The right to health derives from the dignity of the human person and is reflected

in the following international instruments relevant in the current situation: article 25(1) of

the Universal Declaration of Human Rights, article 12 of the International Covenant on

Economic, Social and Cultural Rights (ICESCR), article 5(e)(iv) of the International

Convention on the Elimination of All Forms of Racial Discrimination and article 24 of

the Convention on the Rights of the Child.

Although the United States has ratified

neither ICESCR nor the Convention on the Rights of the Child, it is a signatory of both

and therefore “is obliged to refrain from acts which would defeat the object and purpose”

of either treaty.

The United States is also a Contracting Party to the World Health

Organization, and thus has accepted the principle that the “enjoyment of the highest

attainable standard of health is one of the fundamental rights of every human being.”

67.

The mandate of the Special Rapporteur covers reporting on the status of the

realization of the right to health “throughout the world”,

and States are called upon to

cooperate fully with the Special Rapporteur in the implementation of this mandate,

paying particular attention to the health of vulnerable groups.

The mandate of the

Special Rapporteur, therefore, extends to alleged violations of the right to health in

Guantánamo Bay.

68.

In addition to States having duties arising from the right to health, health

professionals also have some right-to-health responsibilities deriving from international

human rights law.

69.

The right to health includes the right to timely and appropriate health care, as well

as to the underlying determinants of health, such as safe drinking water and adequate

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food and sanitation.

100

International human rights instruments also impose specific

obligations on States to provide prisoners with healthy living conditions and quality

health care, including mental health care.

101

70.

The Special Rapporteur on the right to health has received serious and credible

reports of violations of the right to health – both health care and the underlying

determinants of health – at Guantánamo Bay.

102

The reports allege, inter alia, that (i) the

conditions of confinement have had devastating effects on the mental health of the

detainees; (ii) provision of health care has been conditioned on cooperation with

interrogators; (iii) health care has been denied, unreasonably delayed and inadequate; (iv)

detainees have been subjected to non-consensual treatment, including drugging and force-

feeding; and (v) health professionals systematically violate professional ethical standards,

precluding the provision of quality health care for detainees. Although all these

allegations are serious, given the limited length of this report, the Special Rapporteur will

consider two issues: mental health, and the ethical responsibilities of health professionals,

including those arising from force-feeding.

A. Mental health

71.

Reports indicate that the treatment of detainees since their arrests, and the

conditions of their confinement, have had profound effects on the mental health of many

of them.

103

The treatment and conditions include the capture and transfer of detainees to

an undisclosed overseas location, sensory deprivation and other abusive treatment during

transfer; detention in cages without proper sanitation and exposure to extreme

temperatures; minimal exercise and hygiene; systematic use of coercive interrogation

techniques; long periods of solitary confinement; cultural and religious harassment;

denial of or severely delayed communication with family; and the uncertainty generated

by the indeterminate nature of confinement and denial of access to independent

tribunals.

104

These conditions have led in some instances to serious mental illness, over

350 acts of self-harm in 2003 alone, individual and mass suicide attempts and

widespread, prolonged hunger strikes.

105

The severe mental health consequences are

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likely to be long term in many cases, creating health burdens on detainees and their

families for years to come.

106

B. Ethical obligations of health professionals, including in relation to force-

feeding

72.

In his reports, the Special Rapporteur has emphasized that health professionals

play an indispensable role in promoting, protecting and fulfilling the right to health.

107

Nonetheless, in the past, some health professionals participated, often under duress, in

violations of the right to health and other human rights.

108

In response to these abuses,

international human rights instruments have addressed the conduct of health

professionals. ICCPR, for example, states that “no one shall be subjected without his free

consent to medical or scientific experimentation”.

109

Further, the Human Rights

Committee has invited States parties to report on the extent to which they apply the

United Nations Principles of Medical Ethics relevant to the Role of Health Personnel,

particularly Physicians, in the Protection of Prisoners and Detainees against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General

Assembly resolution 37/194 of 18 December 1982.

110

73.

The United Nations Principles of Medical Ethics apply to all health professionals.

They state that it is a contravention of medical ethics for health personnel (a) to be in any

relationship with detainees “the purpose of which is not solely to evaluate, protect or

improve their physical and mental health”, (b) to use their knowledge and skills to assist

in the interrogation of detainees “in any manner that may adversely affect physical or

mental health”, or (c) to certify the fitness of detainees for any “treatment or punishment

that may adversely affect their physical or mental health”. The United Nations Principles

also state that there may be no derogation from these principles on any ground, including

public emergency.

74.

The World Medical Association adopted similar ethical standards in the

Declaration of Tokyo (1975), which was subsequently adopted by the American Medical

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Association.

111

The Declaration prohibits doctors from participating in, or being present

during, any form of torture or other form of cruel, inhuman or degrading treatment and

from providing any knowledge to facilitate such acts. The doctor’s fundamental role is to

alleviate distress and no other motive shall prevail against this purpose.

112

The

International Council of Nurses also condemns interrogation procedures harmful to

mental and physical health, as well as inhumane treatment of detainees:

113

“Nurses have

a fundamental responsibility to promote health, to prevent illness, to restore health and to

alleviate suffering.”

114

These internationally agreed ethical norms are implied in, and

form an essential part of, the right to health. Compliance by health professionals with

such ethical standards is essential to realizing the right to health.

75.

The Special Rapporteur has received reports, many confirmed by investigations of

the United States military,

115

that health professionals in Guantánamo Bay have

systematically violated widely accepted ethical standards set out in the United Nations

Principles of Medical Ethics and the Declaration of Tokyo, in addition to well-established

rules on medical confidentiality. Alleged violations include: (a) breaching confidentiality

by sharing medical records or otherwise disclosing health information for purposes of

interrogation;

116

(b) participating in, providing advice for or being present during

interrogations;

117

and (c) being present during or engaging in non-consensual treatment,

including drugging and force-feeding.

118

In sum, reports indicate that some health

professionals have been complicit in abusive treatment of detainees detrimental to their

health. Such unethical conduct violates the detainees’ right to health, as well as the duties

of health professionals arising from the right to health.

76.

A report of the International Committee of the Red Cross indicates that the

“apparent integration of access to medical care within the system of coercion meant that

inmates were not cooperating with the doctors. Inmates learn from their interrogators

that they have knowledge of their medical histories and the result is that prisoners no

longer trust the doctors”.

119

The Special Rapporteur is concerned that the information

detainees disclose to health professionals has been used to punish and coerce, and

therefore detainees have learned that they cannot trust health professionals. As a result,

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detainees may not seek health care or, if they do, may not disclose to health professionals

all information necessary to receive adequate and appropriate health care. In the context

of the hunger strikes, a trusting relationship between the detainee and the health

professional is essential for the health professional to provide health information and

advice to the hunger striker consistent with ethical principles.

77.

The United States Department of Defense has promulgated Medical Program

Principles that parallel the United Nations Principles of Medical Ethics, yet differ

significantly in several respects. Most importantly, the United States Principles apply

only to health professionals in a “professional provider-patient treatment relationship”.

120

Consistent with this role distinction, the United States acknowledges that psychiatrists

and psychologists have participated in Behavioural Science Consultation Teams, which

provide expertise for interrogations, but justifies their participation on the grounds that

these health professionals are not in provider-patient relationships with detainees. It

contends, moreover, that the purpose of such Teams is to assist “in conducting safe, legal,

ethical and effective interrogations”.

121

78.

Interrogation techniques that have been approved and used at Guantánamo Bay,

however, are not consistent with the objective of safe, legal, ethical and effective

interrogations,

122

and they have adversely affected the mental health of detainees.

Further, the United Nations Principles and other codes of ethics for health professionals

make no distinctions based on the role of the health professional. Their premise is that

the knowledge and skills of health professionals should not be used to the detriment of

humans; the particular position the professional holds therefore is not relevant.

123

To the

extent that health professionals “apply their knowledge and skills” to assist in any manner

with interrogations that “

may

adversely affect” (emphasis added) the physical or mental

health of the detainee, they violate professional ethics and the right to health of

detainees.

124

79.

Reports from Guantanamo Bay confirm that doctors and other health

professionals are participating in force-feeding detainees.

125

The force-feeding of hunger

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strikers raises several distinct human rights issues. One issue concerns the manner in

which detainees are force-fed, which is addressed in this report in the section on

torture.

126

Another issue concerns the ethics and legality of force-feeding, regardless of

how it is undertaken, which the following remarks address only briefly given the severe

space constraints.

80.

The Declarations of Tokyo and Malta prohibit doctors from participating in force-

feeding a detainee, provided the detainee is capable of understanding the consequences of

refusing food.

127

This position is informed by the fundamental principle, which recurs

throughout human rights law, of individual autonomy. As well as the World Medical

Association, the American Medical Association and many others have endorsed the

Declaration of Tokyo.

128

Additionally, during 2004, in the context of a hunger strike by

Palestinian security detainees, the ICRC reported that its doctors will “urge the authorities

not to subject detainees to force-feeding”.

129

Further, some domestic courts have

decided, based on an individual’s right to refuse medical treatment, that a state may not

force feed a prisoner.

130

While some other domestic courts have taken a different

position, it is not clear that they have all given due consideration to the relevant

international standards.

131

81.

According to the United States Government, Department of Defence policy

allows health professionals to force feed a detainee in Guantanamo Bay when the hunger

strike threatens his life or health.

132

However, the United States policy is inconsistent

with the principle of individual autonomy, the policy of the World Medical Association

and the American Medical Association, as well as the position of ICRC doctors (as

signalled in the previous paragraph), some domestic courts, and many others.

82.

From the perspective of the right to health, informed consent to medical treatment

is essential,

133

as is its “logical corollary” the right to refuse treatment.

134

A competent

detainee, no less than any other individual, has the right to refuse treatment.

135

summary, treating a competent detainee without his or her consent – including force-

E/CN.4/2006/120
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feeding – is a violation of the right to health, as well as international ethics for health

professionals.

VII. CONCLUSIONS

AND

RECOMMENDATIONS

A. Conclusions

83.

International human rights law is applicable to the analysis of the situation of

detainees in Guantánamo Bay. Indeed, human rights law applies at all times, even

during situations of emergency and armed conflicts. The war on terror, as such,

does not constitute an armed conflict for the purposes of the applicability of

international humanitarian law. The United States of America has not notified to

the Secretary-General of the United Nations or other States parties to the treaties

any official derogation from the International Covenant on Civil and Political

Rights or any other international human rights treaty to which it is a party.

84.

The persons held at Guantánamo Bay are entitled to challenge the legality of

their detention before a judicial body in accordance with article 9 of ICCPR, and to

obtain release if detention is found to lack a proper legal basis. This right is

currently being violated, and the continuing detention of all persons held at

Guantánamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.

85.

The executive branch of the United States Govenrment operates as judge,

prosecutor and defence counsel of the Guantánamo Bay detainees: this constitutes

serious violations of various guarantees of the right to a fair trial before an

independent tribunal as provided for by article 14 of the ICCPR.

86.

Attempts by the United States Administration to redefine “torture” in the

framework of the struggle against terrorism in order to allow certain interrogation

techniques that would not be permitted under the internationally accepted

definition of torture are of utmost concern. The confusion with regard to authorized

E/CN.4/2006/120

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and unauthorized interrogation techniques over the last years is particularly

alarming.

87.

The interrogation techniques authorized by the Department of Defense,

particularly if used simultaneously, amount to degrading treatment in violation of

article 7 of ICCPR and article 16 of the Convention against Torture. If in individual

cases, which were described in interviews, the victim experienced severe pain or

suffering, these acts amounted to torture as defined in article 1 of the Convention.

Furthermore, the general conditions of detention, in particular the uncertainty

about the length of detention and prolonged solitary confinement, amount to

inhuman treatment and to a violation of the right to health as well as a violation of

the right of detainees under article 10 (1) of ICCPR to be treated with humanity and

with respect for the inherent dignity of the human person.

88.

The excessive violence used in many cases during transportation, in

operations by the Initial Reaction Forces and force-feeding of detainees on hunger

strike must be assessed as amounting to torture as defined in article 1 of the

Convention against Torture.

89.

The practice of rendition of persons to countries where there is a substantial

risk of torture, such as in the case of Mr. Al Qadasi, amounts to a violation of the

principle of non-refoulement and is contrary to article 3 of the Convention against

Torture and Article 7 of ICCPR.

90.

The lack of any impartial investigation into allegations of torture and ill-

treatment and the resulting impunity of the perpetrators amount to a violation of

articles 12 and 13 of the Convention against Torture.

91.

There are reliable indications that, in different circumstances, persons

detained in the Guantánamo Bay detention facilities have been victims of violations

of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the

E/CN.4/2006/120
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1981 Declaration. It is of particular concern that some of these violations have even

been authorized by the authorities. In addition, some interrogation techniques are

based on religious discrimination and are aimed at offending the religious feelings of

detainees.

92.

The totality of the conditions of their confinement at Guantánamo Bay

constitute a right-to-health violation because they derive from a breach of duty and

have resulted in profound deterioration of the mental health of many detainees.

93.

There are also serious concerns about the alleged violations of ethical

standards by health professionals at Guantánamo Bay and the effect that such

violations have on the quality of health care, including mental health care, the

detainees are receiving.

94.

The treatment of the detainees and the conditions of their confinement has

led to prolonged hunger strikes. The force-feeding of competent detainees violates

the right to health as well as the ethical duties of any health professionals who may

be involved.

B. Recommendations

95.

Terrorism suspects should be detained in accordance with criminal procedure

that respects the safeguards enshrined in relevant international law. Accordingly, the

United States Government should either expeditiously bring all Guantánamo Bay

detainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release them

without further delay. Consideration should also be given to trying suspected terrorists

before a competent international tribunal.

96.

The United States Government should close the Guantánamo Bay detention

facilities without further delay. Until the closure, and possible transfer of detainees to

pre-trial detention facilities on United States territory, the Government should refrain

E/CN.4/2006/120

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from any practice amounting to torture or cruel, inhuman or degrading treatment or

punishment, discrimination on the basis of religion, and violations of the rights to

health and freedom of religion. In particular, all special interrogation techniques

authorized by the Department of Defense should immediately be revoked.

97.

The United States Government should refrain from expelling, returning,

extraditing or rendering Guantánamo Bay detainees to States where there are

substantial grounds for believing they would be in danger of being tortured.

98.

The United States Government should ensure that every detainee has the right

to make a complaint regarding his treatment and to have it dealt with promptly and, if

requested, confidentially. If necessary, complaints may be lodged on behalf of the

detainee or by his legal representative or family.

99.

The United States Government should ensure that all allegations of torture or

cruel, inhuman or degrading treatment or punishment are thoroughly investigated by

an independent authority, and that all persons found to have perpetrated, ordered,

tolerated or condoned such practices, up to the highest level of military and political

command, are brought to justice.

100.

The United States Government should ensure that all victims of torture or cruel,

inhuman or degrading treatment or punishment are provided with fair and adequate

compensation, in accordance with article 14 of the Convention against Torture,

including the means for as full a rehabilitation as possible.

101.

The United States Government should provide the personnel of detention

facilities with adequate training, in order to ensure that they know that it is their duty

to respect international human rights standards for the treatment of persons in

detention, including the right to freedom of religion, and to enhance their sensitivity of

cultural issues.

E/CN.4/2006/120
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102.

The United States Government should revise the United States Department of

Defense Medical Program Principles to be consistent with the United Nations Principles

of Medical Ethics.

103.

The United States Government should ensure that the authorities in

Guantánamo Bay do not force-feed any detainee who is capable of forming a rational

judgement and is aware of the consequences of refusing food. The United States

Government should invite independent health professionals to monitor hunger strikers,

in a manner consistent with international ethical standards, throughout the hunger

strike.

104.

All five mandate holders should be granted full and unrestricted access to the

Guantánamo Bay facilities, including private interviews with detainees.

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Annex 1

Notes

These interviews were carried out with the consent of the Governments concerned (France, Spain and the

UK). Similar request have been addressed by the five mandate holders to Afghanistan, Morocco and
Pakistan in order to meet with former detainees currently residing in the three respective countries. No
response has been received so far.

Response of the United States of America, dated October 21, 2005 to the inquiry of the Special

Rapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 52. For more updated
information, see

the fact sheets of the US Department of Defense (available at

http://www.defenselink.mil/news/Aug2005/d20050831sheet.pdf>), according to which, as of 31 August
2005, there were four “cases where detainees are charged and the case is underway”, with another eight
subject to the president’s jurisdiction under his November 2001 military order. According to further fact
sheets posted by the Department of Defense on its web site, in December 2005 five further detainees had
“charges … referred to a military commission”, bringing the total of detainees referred to a military
commission to nine as of the end of December 2005.

Declaration annexed to Security Council resolution 1456 (2003). Relevant General Assembly resolutions

on this issue are 57/219, 58/187 and 59/191.The most recent resolution adopted by the Security Council is
1624 (2005), in which the Security Council reiterated the importance of upholding the rule of law and
international human rights law while countering terrorism.

Statement delivered by the Secretary-General at the Special Meeting of the Counter-Terrorism Committee

with Regional Organizations, New York, 6 March 2003,

http://www.un.org/apps/sg/sgstats.asp?nid=275

Speech delivered by the United Nations High Commissioner for Human Rights at the Biennial

Conference of the International Commission of Jurists (Berlin, 27 August 2004),

http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet

See Commission on Human Rights resolutions 2003/68, 2004/87 and 2005/80.

The United States has entered reservations, declarations and understandings with regard to a number of

provisions of these treaties. Most relevant are the reservations to article 7 of ICCPR and article 16 of the
Convention against Torture, as noted in paragraph 45.

"The United States Position on the Relation of Customary International Law to the 1977 Protocols

Additional to the 1949 Geneva Conventions", Remarks of Michael J. Matheson, Deputy Legal Adviser,
United States Department of State, in The Sixth Annual American Red Cross-Washington College of Law
Conference on International Humanitarian Law: "A Workshop on Customary International Law and the
1977 Protocols Additional to the 1949 Geneva Conventions",

The American University Journal of

International Law and Policy

, Vol. 2, No. 2 (Fall 1987), pp. 419-431.

Human Rights Committee, General Comment No. 31 (2004), CCPR/C/21/Rev.1/Add.13, para. 10.

International Court of Justice,

Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territories

, Advisory Opinion, I.C.J. Reports 2004 (9 July 2004).

Ibid, para. 111. The ICJ reached the same conclusion with regard to the applicability of the Convention

on the Rights of the Child (para. 113). As far as the Convention against Torture is concerned, articles 2(1)
and 16(1) refer to each State party’s obligation to prevent acts of torture “in any territory under its
jurisdiction”. Accordingly, the territorial applicability of the Convention to United States activities at

E/CN.4/2006/120
page 42

Guantánamo Bay is even less disputable than the territorial applicability of ICCPR, which refers (article
2(1)) to “all individuals within its territory and subject to its jurisdiction”.

Human Rights Committee, General Comment No. 29 (2001), CCPR/C/21/Rev.1/Add.11, para. 3.

Ibid.

Ibid, para. 15-16.

International Court of Justice,

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,

I.C.J. Reports 1996,

p. 226, at p. 240 (8 July 1996), para. 25.

International Court of Justice,

Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territories, Advisory Opinion,

I.C.J. Reports 2004 (9 July 2004), para 106.

The Commission on Human Rights resolutions governing the Working Group mandate it “to investigate

cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards”
(1991/42, 1997/50 and 2003/31). In its report to the Commission on Human Rights at its fifty-ninth session,
the Working Group gave a Legal Opinion regarding deprivation of liberty of persons detained at
Guantánamo Bay (E/CN.4/2003/8, paras. 61 to 64). On 8 May 2003, the Working Group issued its Opinion
No. 5/2003 concerning the situation of four men held at Guantánamo Bay, finding that it constituted
arbitrary detention. The Working Group also reflected developments in United States litigation relating to
Guantánamo Bay in its report to the Commission in 2005 (E/CN.4/2005/6, para. 64).

This Military Order has been complemented by several subsequent Military Commissions Orders, i. a.

Military Commission Order No. 1 of 21 March 2002, which was superseded on 31 August 2005 by the
Revised Military Commission Order No. 1, Military Commission Order No. 2 of 21 June 2003
(subsequently revoked), Military Commission Order No. 3 of 5 February 2004 (superseded by Military
Commission Order No. 3 of 21 September 2005), Military Commission Order No. 4 of 30 January 2004
(subsequently revoked), Military Commission Order No. 5 of 15 March 2004, and Military Commission
Order No. 6 of 26 March 2004: reference to the “Military Order” in the text should be read as referring to
the series of Military Commissions Orders.

Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special

Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 3.

See Official Statement of the International Committee of the Red Cross (ICRC) dated 21 July 2005

regarding “The relevance of IHL in the context of terrorism” (available at
<http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism-ihl-210705?OpenDocument>): “International
humanitarian law (the law of armed conflict) recognizes two categories of armed conflict: international and
non-international. International armed conflict involves the use of armed force by one State against another.
Non-international armed conflict involves hostilities between government armed forces and organized
armed groups or between such groups within a state. When and where the "global war on terror" manifests
itself in either of these forms of armed conflict, international humanitarian law applies, as do aspects of
international human rights and domestic law. For example, the armed hostilities that started in Afghanistan
in October 2001 or in Iraq in March 2003 are armed conflicts. When armed violence is used outside the
context of an armed conflict in the legal sense or when a person suspected of terrorist activities is not
detained in connection with any armed conflict, humanitarian law does not apply. Instead, domestic laws,
as well as international criminal law and human rights govern. […] The designation "global war on terror"
does not extend the applicability of humanitarian law to all events included in this notion, but only to those
which involve armed conflict.”

Third Geneva Convention relative to the Treatment of Prisoners of War, art. 118, and Fourth Geneva

Convention relative to the Treatment of Civilian Persons, art. 133(1).

E/CN.4/2006/120

page 43

Third Geneva Convention, art. 119 (5), and Fourth Geneva Convention, art. 133.

Third Geneva Convention, art. 17(3), and Fourth Geneva Convention, art. 31.

For the circumstances of the arrest and transfer to Guantánamo Bay of the six men see the decision of the

Human Rights Chamber for Bosnia and Herzegovina of 11 October 2002 in case no. CH/02/8679 et al.,

Boudellaa & Others v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,

available at

www.hrc.ba

See also the report of Mr. Amir Pilov of 10 August 2004 on his visit to Guantanamo Bay from

26 to 29 July 2004 as official representative of Bosnia and Herzegovina in accordance with the respective
order of the Human Rights Chamber.

See

, Rasul v. Bush

, 542 U.S. 446, 124 S.Ct. 2686 (2004).

See US District Court for the district of Columbia, decision of 31 January 200

5 In re Guantanamo

Detainees Cases

, 355 F. Supp. 2d 443, at 468-478.

Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special

Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 47.

The CSRT and ARB rules do not provide detainees with the right to receive legal assistance, but provide

instead for a “personal representative” with no legal training required and no duty of confidentiality
whatsoever. See also US District Court for the district of Columbia, decision of 31 January 200

5 In re

Guantanamo Detainees Cases

, 355 F. Supp. 2d 443, at 468-478, where the District Court says (at 472) that

“there is no confidential relationship between the detainee and the Personal Representative, and the
Personal Representative is obligated to disclose to the tribunal any relevant inculpatory information he
obtains from the detainee. Id. Consequently, there is inherent risk and little corresponding benefit should
the detainee decide to use the services of the Personal Representative.”

See supra note 2.

According to the information available, it appears that already in 2003 the United States Department of

Defense determined that the 15 Uighurs did not present a threat to the security of the United States. In
2004, the Department of Defense determined that the 15 Uighurs do not have any intelligence value for the
United States and should be released. According to the information provided by US lawyers acting on
behalf of the Uighur detainees, in March 2005 the CSRT decided that six of the Uighurs were not “enemy
combatants”. The Response of the United States to the Special Rapporteurs states that “arrangements are
underway” for the release of fifteen detainees determined not to be “enemy combatants” by the CSRT by
March 2005 (Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR
Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, p. 47), which
could be an indication that in fact all fifteen Uighurs have been found by the CSRT not to be “enemy
combatants”. However, the United States neither intend to return the fifteen prisoners to the People’s
Republic of China, where it is feared that they would be at risk of being killed, tortured or ill-treated, nor
allow them to settle in the US. The existence of prisoners whose release poses problems because they
reasonably fear repatriation is acknowledged in the Response of the United States (p. 50). In the habeas
corpus case brought by two of the Uighurs before the United States District Court for the District of
Columbia (

Qassim v. Bush

), the US Government first failed to inform the court and the detainees’ attorneys

that the

habeas corpus

petitioners had been found not to be “enemy combatants”. It then argued that it is

continuing their detention on the basis of “the Executive’s necessary power to wind up war time detentions
in an orderly fashion” (

Qassim v. Bush

, Opinion Memorandum of 22 December 2005,

2005 U.S. Dist.

LEXIS 34618

, para. 4). The District Court concluded that “[t]he detention of these petitioners has by now

become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.” (Ibid., para. 8) Despite
this finding, the District Court concluded that it had no relief to offer, i.e. it could not order their release
(Ibid., para. 16).

E/CN.4/2006/120
page 44

Detainee Treatment Act of 2005, included in the Department of Defense Appropriations Act 2006,

Section 1005.

Ibid.

, Section 1005 (2) (A), (B), and (C).

See also article 9 (4):” Anyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings before a court, in order that that court may decide without delay on the lawfulness of his
detention and order his release if the detention is not lawful.”

Principle No.5 of the Basic Principles on the independence of the Judiciary, endorsed by General

Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

Human Rights Committee, General Comment No. 13 (1984), para. 4, and

Kurbanov v. Tajikistan

Communication no. 1096/2002, Views of the Human Rights Committee of 6 November 2003, para. 7.6.

General Comment No. 13, supra note 35, para. 4.

Principle 10, Basic Principles on the Independence of the Judiciary (see supra note 34).

See supra note 8.

General Comment No. 29, supra note 12, paras 10-11: “States parties may in no circumstance invoke

article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of
international law, for instance by taking hostages, by imposing collective punishments, through arbitrary
deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption
of innocence”.

United Nations Basic Principles on the Role of Lawyers, adopted

by the Eighth United Nations Congress

on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September
1990.

Principle 1 and 5 as well as 16 and 21 of the Basic Principles on the Role of Lawyers (see note supra 40).

See Rule 100 of the List of Customary Rules of International Humanitarian Law, published as an annex

to the ICRC Study on customary international law: “No one may be convicted or sentenced, except
pursuant to a fair trial affording all essential judicial guarantees.”

(http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf)

General Comment No. 13, supra note 13, para. 10.

See supra note 2.

See, e.g., CCPR/CO/77/EST (Estonia), para. 8; CCPR/CO/76/EGY (Egypt), para. 16;

CCPR/CO/75/YEM (Yemen), para. 18; CCPR/CO/75/NZL (New Zealand), para. 11; CCPR/75/MDA
(Moldova), para. 8; CCPR/CO/74/SWE (Sweden), para. 12; CCPR/CO/73/UK (United Kingdom), para. 6;
CAT/C/XXIX/Misc.4 (Egypt), para. 4; CAT/C/CR/28/6 (Sweden), para. 6 (b).

Articles 6 (b) and (c) of the 1945 Charter of the Nuremberg International Military Tribunal; Principle IV

(b) and (c) of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and
the Judgment of the Tribunal; Articles 2 (b) and 5 (f) of the 1993 Statute of the International Criminal
Tribunal for the Former Yugoslavia; Articles 7 (1) (f) and 8 (2) (a) (ii) of the 1998 Rome Statute for the
International Criminal Court.

E/CN.4/2006/120

page 45

See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1, 183

and Vol.1, 286. Reservations to ICCPR at

http://www.ohchr.org/english/countries/ratification/4_1.htm

"(3)

That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading
treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth,
Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Reservations to ICCPR at

http://www.ohchr.org/english/countries/ratification/9.htm#reservations

(1) That the United States considers

itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or
punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the
cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States. See Multilateral Treaties deposited with the Secretary
General, Status as at 31 Dec. 2004. Vol. 1, 183 and Vol.1, 286.

Conclusions and Recommendations of the Committee against Torture : United States of America.

15/05/2000. A/55/44,paras.175-180. "179. The Committee expresses its concern about: (a) The failure of
the State party to enact a federal crime of torture in terms consistent with article 1 of the Convention;
(b) The reservation lodged to article 16, in violation of the Convention, the effect of which is to limit the
application of the Convention;[...] 180. The Committee recommends that the State party: (a) Although it
has taken many measures to ensure compliance with the provisions of the Convention, also enact a federal
crime of torture in terms consistent with article 1 of the Convention and withdraw its reservations,
interpretations and understandings relating to the Convention;" and Concluding Observations of the Human
Rights Committee: United States of America. 03/10/95. CCPR/C/79/Add.50; A/50/40,paras.266-304. "279.
The Committee regrets the extent of the State party's reservations, declarations and understandings to the
Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only
what is already the law of the United States. The Committee is also particularly concerned at reservations to
article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object
and purpose of the Covenant. […] 292. The Committee recommends that the State party review its
reservations, declarations and understandings with a view to withdrawing them, in particular reservations to
article 6, paragraph 5, and article 7 of the Covenant."

E.g. US President in a February 2002 memorandum reiterated the standard of “humane treatment” (see

Church report p. 3); also: During a visit to Panama on 7 November 2005 President Bush said: “Our country
is at war, and our government has the obligation to protect the American people.[…] And we are
aggressively doing that. […] Anything we do to that effort, to that end, in this effort, any activity we
conduct, is within the law. We do not torture.” See at:

http://www.whitehouse.gov/news/releases/2005/11/20051107.html

(accessed on 8 December 2005), but for

more ambiguous statements see also Amnesty International, “United States of America. Guantánamo and
beyond: The continuing pursuit of unchecked executive power,” AI Index: AMR 51/063/2005 (May 13,
2005) and Human Rights Watch, Getting Away with torture? Command Responsibility for the U.S. Abuse
of Detainees, Vol. 17, No. 1(G) (April 2005).

“For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-

2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure.
Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury
such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but
it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress
disorder. Additionally, such severe mental pain can arise only from the predicate acts listed on Section
2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they
might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.
[…] Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could
provide justifications that would eliminate any criminal liability.”

Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on

“Counter Resistance Techniques in the War on Terror”.

E/CN.4/2006/120
page 46

http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0

“Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Division

at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17
months, he struggled to get answers from his chain of command to a basic question: What standards apply
to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with
Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the
terrorists but for the good of our soldiers and our country. […] The advantage of setting a standard for
interrogation based on the field manual is to cut down on the significant level of confusion that still exists
with respect to which interrogation techniques are allowed. The Armed Services Committee has held
hearings with a slew of high-level Defense Department officials, from regional commanders to judge
advocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearings
was what specific interrogation techniques are permitted, in what environments, with which DOD
detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's top
minds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expect
our enlisted men and women to do so? Confusion about the rules results in abuses in the field. We need a
clear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is
not just my opinion but that of many more distinguished military minds than mine.” To be found at:

http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0

See also Press Briefing with National Security Advisor Stephen Hadley on the McCain Amendment of

15 December 2005 at:

http://www.whitehouse.gov/news/releases/2005/12/20051215-5.html

(last accessed

on 21 December 2005): “As you know, our policy has been not to use cruel, inhuman or degrading
treatment at home or abroad. That has been our policy. The legislative agreement that we've worked out
with Senator McCain now makes that a matter of law, not just policy. And it makes it a matter of law that
applies worldwide, at home and abroad.”

Jerald Phifer to Commander of Joint Task Force 170, memorandum of 11 October 2002,, “Request for

Approval of Counter-resistance Techniques,” which was attached to William J. Haynes II to Secretary of
Defense, memorandum of 27 November 2002, “Counter-resistance Techniques,” and approved by
Secretary Rumsfeld on 2 December 2002 (

http://www.washingtonpost.com/wp-

srv/nation/documents/dodmemos.pdf

Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on

“Counter Resistance Techniques in the War on Terror”.

Ibid., p. 1. See also overview given by the Executive Summary of the Church report (“Executive

Summary,” U.S. Department of Defense, available to the public since March 2005,

http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf

)

The technique of using dogs, as confirmed in various interviews with ex-Guantanamo Bay detainees, was

explicitly authorised as part of the “First Special Interrogation Plan” (p. 13 and 14) - see in Army
Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay,
Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). See also point 12”
“Using detainees individual phobias (such as fear of dogs) to induce stress” of the Jerald Phifer to
Commander of Joint Task Force 170, memorandum, “Request for Approval of Counter-resistance
Techniques,” October 11, 2002, which was attached to William J. Haynes II to Secretary of Defense,
memorandum, “Counter-resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeld
on December 2, 2002

available at

http://www.washingtonpost.com/wp-

srv/nation/documents/dodmemos.pdf

Dept. of Defense, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba

Detention Facility, Army Regulation 15-6: Final Report (Apr. 1, 2005; amended Jun. 9, 2005; published

E/CN.4/2006/120

page 47

Jul. 14, 2005); also: “

What were the measures most difficult to cope with in your view? - Sleep deprivation.

They were forcing us to change the cells, the boxes we were held in, for every 15 minutes. And that was
going on for three to four months. Every 15 minutes we were supposed to change. No sleep, nothing. So
sleep deprivation

.” Interview with Airat Vakhitov on 18 November 2005 in London.

Cases of Moazzam Begg, Rustam Akhmiarov, Airat Vakhitov – interviews of 18 November 2005.

Resolution 1433 of 26 April 2005, para. 7 ii.

Opinions of the Lords of Appeal for Judgment in the case A (FC) and others (FC) (Appellants) v.

Secretary of State for the Home Department (Respondent) of 8 December 2005. Session 2005-06- UKHL
71para. 126.

“The ICRC feels that interrogators have too much control over the basic needs of detainees. That the

interrogators attempt to control the detainees through use of isolation. Mr. Cassard stated that the
interrogators have total control of the level of isolation in which the detainees were kept; the level of
comfort items detainees can receive; and also the access of basic needs to the detainees.” DoD, ICRC
Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003).

Ibid.

“Check into lowering the lights at night to help with sleeping.” DoD, General observations and meeting

notes

memo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observations from

ICRC concerning treatment of detainees (Jan. 21, 2002).

Detainees feel some rules, i.e. no talking, cause higher stress, and feel talking would help to release

stress.” DoD, General observations and meeting notes

memo from Staff Judge Advocate to Commander

Joint Task Force 160, Initial observations from ICRC concerning treatment of detainees (Jan. 21, 2002).
See also: “The detainees request that the “no talking rule” be lifted. 22 Jan 02: Approved in part as of that
date. Detainees may carry on normal conversations.” DoD, memo from Staff Judge Advocate to file,
Concerns voiced by the International Committee of the Red Cross (ICRC) on behalf of the detainees (Jan.
24, 2002).