Resolution 1433 (2005)1
Lawfulness of detentions by the United States in
Guantánamo Bay
1. The Parliamentary
Assembly recalls and restates its outrage and disgust at the terrorist
attacks on the United States of America of 11 September 2001, the horror of
which has not been dimmed by the passage of time. It shares the United
States’ determination to combat international terrorism and fully endorses
the importance of detecting and preventing terrorist crimes, prosecuting and
punishing terrorists and protecting human lives.
2. Whilst the Assembly
therefore offers its full support to the United States in its efforts to
fight terrorism, this must be on condition that all measures taken are fully
respectful of human rights and the rule of law. Conformity with
international human rights and humanitarian law is not a weakness in the
fight against terrorism but a weapon, ensuring the widest international
support for actions and avoiding situations which could provoke misplaced
sympathy for terrorists or their causes.
3. The United States has
long been a beacon of democracy and a champion of human rights throughout
the world and its positive influence on European development in this respect
since the Second World War is greatly appreciated. Nevertheless, the
Assembly considers that the United States Government has betrayed its own
highest principles in the zeal with which it has attempted to pursue the
“war on terror”. These errors have perhaps been most manifest in relation to
Guantánamo Bay.
4. At no time have
detentions at Guantánamo Bay been within a “legal black hole”. International
human rights law has at all times been fully applicable to all detainees.
For those captured during the international armed conflict in Afghanistan,
protection of certain rights may have been complemented by the provisions of
international humanitarian law (IHL) for the duration of that conflict.
Since that international armed conflict ceased, however, international human
rights standards have applied in the normal fashion.
5. The Assembly applauds
and supports the work of the International Committee of the Red Cross (ICRC)
and the various United Nations human rights protection mechanisms, along
with that of non-governmental organisations including Human Rights First,
the Center for Constitutional Rights and Amnesty International, in striving
to improve detention conditions at Guantánamo Bay and ensure that detainees’
rights are respected. It also thanks the European Commission for Democracy
through Law (Venice Commission) for its opinion on the possible need for
further development of the Geneva Conventions, produced in response to a
request from the Assembly’s Committee on Legal Affairs and Human Rights.
6. The Assembly recalls
the evidence provided by Mr Jamal Al Harith, former detainee, along with
lawyers representing current and former detainees and other international
experts, at the hearing held by its Committee on Legal Affairs and Human
Rights in Paris on 17 December 2004.
7. On the basis of an
extensive review of legal and factual material from these and other reliable
sources, the Assembly concludes that the circumstances surrounding
detentions by the United States at Guantánamo Bay show unlawfulness and
inconsistency with the rule of law, on the following grounds:
i. many if not all
detainees have been subjected to cruel, inhuman or degrading treatment
occurring as a direct result of official policy, authorised at the very
highest levels of government;
ii. many detainees
have been subjected to ill-treatment amounting to torture which has
occurred systematically and with the knowledge and complicity of the
United States Government;
iii. the right of
those detained in connection with the international armed conflict
previously conducted by the United States in Afghanistan to be
presumptively recognised as prisoners of war (POWs) and to have their
status independently determined by a competent tribunal was not respected;
iv. there have been
numerous violations of various aspects of all detainees’ rights to liberty
and security of the person, making their detention arbitrary;
v. there have been
numerous violations of various aspects of all detainees’ rights to fair
trial, amounting to a flagrant denial of justice;
vi. the United States
has engaged in the unlawful practice of secret detention;
vii. the United States
has, by practising “rendition” (removal of persons to other countries,
without judicial supervision, for purposes such as interrogation or
detention), allowed detainees to be subjected to torture and to cruel,
inhuman or degrading treatment, in violation of the prohibition on non-refoulement;
viii. the United
States’ proposals to return or transfer detainees to other countries, even
where reliant on “diplomatic assurances” concerning the detainees’
subsequent treatment, risk violating the prohibition on non-refoulement.
8. The Assembly
therefore calls on the United States Government to ensure respect for the
rule of law and human rights by remedying these situations and in
particular:
i. to cease
immediately all ill-treatment of Guantánamo Bay detainees;
ii. to investigate,
prosecute and punish all instances of unlawful mistreatment of detainees,
no matter what the status or office of the person responsible;
iii. to allow all
detainees to challenge the lawfulness of their detention before a
regularly constituted court competent to order their release if detention
is not lawful;
iv. to release
immediately all those detainees against whom there is not sufficient
evidence to justify laying criminal charges;
v. to charge those
suspected of criminal offences and bring them for trial before a
competent, independent and impartial tribunal guaranteeing all the
procedural safeguards required by international law, without delay, whilst
excluding imposition of the death penalty against them;
vi. to respect its
obligations under international law and the Constitution of the United
States to exclude any statement established to have been made as a result
of torture or other cruel, inhuman or degrading treatment or punishment
from any proceedings, except against a person accused of such
ill-treatment as evidence that the statement was made;
vii. to cease
immediately the practice of secret detentions and to ensure full respect
for the rights of any detainees currently held in secret, in particular
the prohibition on torture and cruel, inhuman or degrading treatment and
the right to have relatives informed of the fact of detention, to
recognition as a person before the law, to judicial review of the
lawfulness of detention and to release or trial without delay;
viii. to allow access
to all detainees by family members, legal representatives, consular
representatives and officials of international humanitarian and human
rights organisations;
ix. to cease the
practice of “rendition” in violation of the prohibition on non-refoulement;
x. not to return or
transfer detainees in reliance on “diplomatic assurances” from countries
known to engage in the systematic practice of torture and in all cases
unless the absence of a risk of ill-treatment is firmly established;
xi. to comply fully
and promptly with the recommendations of the ICRC and to avoid any actions
that might have the effect of undermining its activities, reputation or
standing.
9. Furthermore, the
Assembly also calls on the United States Government to ensure that the “war
on terror” is conducted in all respects in accordance with international
law, particularly international human rights and humanitarian law.
10. In addition, the
Assembly calls on member states of the Council of Europe:
i. to enhance their
diplomatic and consular efforts to protect the rights and ensure the
release of any of their citizens, nationals or former residents currently
detained at Guantánamo Bay, whether legally obliged to do so or not;
ii. with respect to
any of their citizens, nationals or former residents who have been
returned or transferred from detention at Guantánamo Bay:
a.
to treat such persons according to the usual provisions of criminal law,
respecting the presumption in favour of immediate liberty on arrival;
b.
to provide such persons with all necessary support and assistance, in
particular legal aid to bring cases relating to detention at Guantánamo
Bay;
c.
to protect such persons from prejudice or discrimination and to ensure
their mental and physical well-being during the process of
reintegration;
d.
to ensure that such persons do not suffer detriment to their rights or
interests as a result of being held in unlawful detention at Guantánamo
Bay, especially in relation to immigration status;
iii. not to permit
their authorities to participate or assist in the interrogation of
Guantánamo Bay detainees;
iv. to respect their
obligations under international law to exclude any statement established
to have been made as a result of torture or other cruel, inhuman or
degrading treatment or punishment from any proceedings, except against a
person accused of such ill-treatment as evidence that the statement was
made;
v. to refuse to comply
with United States’ requests for extradition of terrorist suspects liable
to detention at Guantánamo Bay;
vi. to refuse to
comply with United States’ requests for mutual legal assistance in
relation to Guantánamo Bay detainees, other than by providing exculpatory
evidence, or unless in connection with legal proceedings before a
regularly constituted court;
vii. to ensure that
their territory and facilities are not used in connection with practices
of secret detention or rendition in possible violation of international
human rights law;
viii. to respect the
erga omnes nature of human rights by taking all possible measures
to persuade the United States authorities to respect fully the rights
under international law of all Guantánamo Bay detainees.
11. Finally, the Assembly resolves to pursue this issue
further through bilateral dialogue with the United States Congress.
1.
Assembly debate
on 26 April 2005 (10th Sitting) (see
Doc.
10497, report of the Committee
on Legal Affairs and Human Rights, rapporteur: Mr McNamara).
Text adopted by the Assembly on 26 April 2005 (10th Sitting).
