Doc. 9817

26 May 2003

Rights of persons held in the custody of the United States in Afghanistan or Guantanamo Bay

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group

Summary

In this report the Assembly deplores the fate and the treatment of persons, including minors, being held in Afghanistan or Guantanamo Bay, whom the United States designates as "unlawful combatants". The Assembly believes that these persons should be considered "prisoners of war" or, at least, the United States should allow a "competent tribunal", within the meaning of the Third Geneva Convention, to determine their status. The prisoners' rights are in no way guaranteed. Only three former detainees are being tried in the United States. The Assembly, reminding the United States of their responsibility for these prisoners' well-being, asks that the detention facilities be brought into line with recognised international legal standards and that observers from states which have nationals being detained and from the ICRC be given access to the sites. It urges states whose nationals are being unlawfully detained to assist them by all possible means and to seek their extradition. Lastly, it considers that the United States are in breach of their obligations under the Statutory Resolution on observer status and reserves the right to issue further recommendations before its next part-session if no improvement is noted.

I.       Draft resolution

1.        The Assembly:

2.        The Assembly is deeply concerned at the conditions of imprisonment of these persons as such which it considers unacceptable, and it believes that their status being undefined, their detention, to be unlawful.

3.        The United States refuses to treat captured persons as "prisoners of war"; instead it designates them as "unlawful combatants" - a definition that is not contemplated by international law.

4.        The United States also refuses to permit a determination to be made on the status of individual prisoners by a “competent tribunal” as provided for in the Third Geneva Convention and thus making their continued detention ‘arbitrary’.

5.        The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to permit detainees the right to legal counsel.

6.        Despite any protection offered by domestic law, the Assembly reminds the government of the United States that it is responsible under international law for the well-being of prisoners in its custody.

7.        The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States.

8.        The Assembly expresses its disapproval that those held in detention may be subject to trial by a Military Commission, receiving a different standard of justice than United States nationals, amounting to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the International Covenant on Civil and Political Rights.

9.        In view of the above, the Assembly strongly urges the United States to:

10.        The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantanamo Bay accompanied by independent observers, access to sites of detention and unimpeded communication with detainees.

11.        Furthermore, the Assembly urges those member states of the Council of Europe whose nationals are detained in Afghanistan and Guantanamo Bay or elsewhere:

12.        Finally, the Assembly expresses its profound regrets that the United States is not meeting its obligations according to Statutory Resolution (93) 26 on observer status as a country enjoying observer status with the Council of Europe.

13.       The Assembly furthermore regrets that the USA are maintaining the contradictory position that Guantanamo Bay is fully under the jurisdiction of the USA but is outside the protection of the US Constitution. In the event of the United States’ failure to take remedial actions before the next Assembly’s part-session, or to ameliorate conditions of detention, reserves the right to issue appropriate recommendations.

II.       Explanatory memorandum

A.       Introduction

1.        In the course of armed hostilities following the events of 11 September 2001, the United States authorities seized persons suspected of belonging to al-Qa'eda or of being Taliban fighters.

2.        On 8 April 2002, according to the US Government, 242 persons were being held in Afghanistan and 299 more at Guantanamo Bay. These prisoners were reportedly nationals of various countries: Afghanistan, Algeria, Saudi Arabia, Azerbaijan, Bahrain, Belgium, China, Denmark, Spain, Egypt, France, Iran, Kuwait, Uzbekistan, Pakistan, Qatar, United Kingdom, Russia, Sweden, Turkey and Yemen. Eight of these states are Members of the Council of Europe. Nationals from other countries may be detained in Afghanistan and in Guantanamo Bay (according to Amnesty International, there could be more than 600 detainees of 40 nationalities held in the US base). Apparently, nationals from Georgia have also been delivered to the United States for interrogation at Guantanamo Bay in fall 2002. A person in Bosnia and Herzegovina faced the risk of being transferred to Guantanamo Bay, but he was released from SFOR custody on 30 January 2003, following a provisional measure by the Bosnia and Herzegovina Human Rights Chamber. The US military admitted that children aged 16 years and younger are among the detainees being interrogated in Guantanamo Bay.

3.        At present, great uncertainty surrounds the legal status of these prisoners. There is a discrepancy between the way they should be treated and the way they are actually treated by the United States authorities. Their situation is disturbing not only because of the legal confusion over their status, but also because of their conditions of detention.

4.       The United States Government claims these persons are detained as “enemy combatants in connection with an armed conflict” and does not accept they are entitled to protection under international human rights law. At the same time the United States does not recognise the rights of the detainees under international humanitarian law – the ‘rules of war’. While detainees are denied protection of international law, their imprisonment gives rise to allegations of arbitrary and unlawful detention.

5.       Concerns have also focussed on the conditions of detention and the internal regime at Guantanamo Bay giving rise to allegations of torture, inhuman and degrading treatment.

B.       Status and legal regime

a.       Choice of the Guantanamo Bay military base

6.       Guantanamo Bay is an enclave in the south-east of Cuba. It was ceded to the United States in 1903 and was made a USA concession under a treaty of 1934.

7.       The United States authorities contend that the base is not on USA soil, implying that the United States Constitution does not apply there. Accordingly, the prisoners do not enjoy protection of the fundamental rights enshrined in the Constitution and the place of the ordinary courts is taken by military tribunals. This position is confirmed by the United States courts, which have ruled that the Constitution does not apply to federal government action outside the United States concerning foreigners1.

8.        But, for example, the International Covenant on Civil and Political Rights (ICCPR) applies to persons placed under the jurisdiction of a State Party, even if abroad. For instance, Article 2(1) provides that "each State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind". The Human Rights Committee has found it necessary "to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction "2. The Human Rights Committee has made it clear that the ICCPR applies to areas outside States Parties' territory but under their control3.

b.       Application of the Geneva Convention 

9.        The Third Geneva Convention on the treatment of prisoners of war is the only one applicable, since neither Afghanistan nor the United States have ratified the First Protocol on the protection of victims of international armed conflicts. However, the USA has recognised that the First Additional Protocol to the Geneva Conventions reflects customary international law.

10.        After some hesitation and contradictory statements, the President of the United States, Mr Bush, declared on 7 February 2002 that the Third Geneva Convention applied to prisoners suspected of fighting for the Taliban regime, but not to al-Qa'eda militia, because al-Qa'eda was "a foreign terrorist group". This was a departure from the previous interpretation whereby all the prisoners, both Afghan and foreign, were considered "unlawful combatants" or "battlefield prisoners"4.

11.        The Geneva Convention (III) of 12 August 1949 on the treatment of prisoners of war was ratified by the United States in 1955. The Convention applies regardless of the duration of the conflict, how deadly it is, the size of the forces involved and their status.

12.        It is valid "in all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them"5. The term "armed conflict" clearly applies to the United States intervention in Afghanistan, implicitly authorised by Resolution 1368 of the Security Council. According to the travaux préparatoires of the Geneva Convention, any dispute between states giving rise to the intervention of armed forces is an armed conflict. The United States clearly embarked upon armed action against the de facto authority in Afghanistan and the prisoners were arrested in the course of those operations.

13.        The Geneva Conventions should accordingly apply to all the prisoners, without distinction, held at Guantanamo Bay and in Afghanistan.

14.        If the United States allowed a competent tribunal to rule on the status of al-Qa'eda members and the tribunal refused to recognise them as prisoners of war, they would then be entitled to the safeguards of the Fourth Geneva Convention on the protection of civilians in time of war. However, another problem could then arise. A United States court might interpret the transfer of al-Qa'eda prisoners from Afghanistan to Guantanamo as rendering obsolete the protection afforded by the Fourth Convention. While there is no doubt that the Fourth Convention applies to the international armed conflict on Afghan soil, the situation on USA soil is quite different.

15.       Article III of the bilateral agreement of 1903 between the Republic of Cuba and the United States stipulates:

16.       The United States base is thus governed by the same laws as apply to United States territory.

c.       Prisoner-of-war status under the Geneva Convention 

17.        According to the United States authorities, the Guantanamo Bay prisoners are "unlawful combatants" and do not have prisoner-of-war status. So they ought to be regarded as "civilians". But they have no means of challenging the violation of their elementary rights and are yet subject to military tribunals6. On 16 January 2002 the former High Commissioner for Human Rights Mrs Robinson, stated that the legal status of the detainees, and their entitlement to prisoner-of-war status, if disputed, had to be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. The responsibility for convening a “competent tribunal” under the Geneva Conventions to determine their status lies with the United States government.

18.        First of all, the notion of “unlawful combatants" is unknown in international law and corresponds to no legal status. No soldier has ever been prosecuted for being a combatant; even for the purpose of war crimes’ tribunals, it has generally been the officers or those responsible for giving orders that were prosecuted but the individual ‘foot soldier’ has not been tried.

19.        According to the Geneva Convention (III), prisoners of war are " (…) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces" captured by one of the belligerents7.

20.        This broad terminology was chosen in order to avoid ambiguities due to the diversity of combatants. The Taliban combatants and volunteers in Afghanistan clearly fall into the category of prisoners of war. Some and possibly many of those detained fall into neither category but are civilians or non-combatants caught up in the area of conflict. Some individuals travelled to Afghanistan for religious reasons not connected with the subsequent developments.

21.       Where members of al-Qa'eda are concerned, there is a difference of opinion between the United States authorities and certain organisations (International Committee of the Red Cross, Amnesty International). The Third Geneva Convention stipulates that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Article 5)

22.       The United States authorities have declared that there was no need for a "competent tribunal" to determine the status of prisoners at Guantanamo Bay. They contend that recourse to such a tribunal is necessary only if the detaining authorities have any doubt as to prisoners' status, which is not so in this case. This is a distortion of Article 5, which lends no support to such an interpretation.

23.       The United States authorities should have recourse to a competent, independent and impartial tribunal because there is doubt as to the prisoners' status.

d.       The prospect of indefinite detention without trial or after acquittal 

24.       The right to be tried within a reasonable time is closely related to the principle of presumption of innocence. The Presidential Order of 13 November 2001 authorises detention without trial and the United States authorities envisage "various possible options including detention and trial under the Presidential Order, trial by other means such as the civilian courts, repatriation, release or continuing detention under an authority other than the Order". A statement by the Pentagon’s General Counsel on 21 March 2002 is enlightening about the the United States position not to envisage an early end to the conflict and let indefinite detention continue; he said that some detainees could be held for the duration of the conflict, and the conflict was still going on, and that no end was in sight.

25.       The United States continue to consider that it would be irresponsible not to continue to detain the prisoners until the conflict is over. However, the conflict in Afghanistan might have ended with the setting up of a provisional administration under the auspices of the United Nations (Afghanistan Interim Authority) controlling the whole territory.

26.       There is no such legal term in international law like “war against terrorism” declared by President Bush on 20 September 2001 or "the axis of evil" referred to in a State of the Union speech on 31 January 2002, under which the United States could derogate from their obligations under international law.

27.       Even worse, the United States authorities have stated that some prisoners could be detained for the duration of the conflict, even if acquitted, but the Third Geneva Convention, provides that "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities" (Article 118). It may be assumed that it is one reason why the United States have for the time being refused to grant the prisoners prisoner-of-war status.

28.        Under international law binding on the United States, according to Article 9(4) of the ICCPR, "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful". The prisoners at Guantanamo Bay and in Afghanistan should have access as soon as possible to a competent tribunal to examine the lawfulness of their detention.

29.        According to the established case-law of the European Court of Human Rights, a prisoner must be released pending trial as soon as continued detention ceases to be reasonable: only "the existence of a genuine requirement of public interest " can, having regard to the presumption of innocence, justify departure from the rule of respect for individual liberty. Provided there are still plausible reasons for suspecting the arrested person of having committed an offence, continuing detention before trial must satisfy two conditions: there must be "relevant" and "sufficient" reasons that continue after a certain lapse of time to legitimise custody; and "special diligence" on the part of the authorities in the conduct of the proceedings8. Moreover, anyone held in custody is entitled to take proceedings to seek a ruling on the lawfulness of his or her detention9.

30.        The Human Rights Committee also considers that continuing detention before trial must be not only lawful, but also reasonable in all respects10 and that pre-trial detention should be the exception and is justified only if there is a likelihood that the suspect might abscond or destroy evidence, exert pressure on witnesses or leave the territory of the State Party"11. The detention of the prisoners would thus amount to an arbitrary detention in violation of the ICCPR. In a judgment of the United Kingdom High Court on the case of Feroz Abassi, who was among the first group of prisoners to arrive in Guantanamo Bay, the judges clearly characterise the situation as such.

e.       Presumption of innocence 

31.       In international human rights law, the right to an impartial tribunal includes the right to be presumed innocent until convicted. Accordingly, Article 14(2) of the ICCPR provides that "everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law". This right allows of no exceptions and is recognised in international and other armed conflicts.

32.        The right to be presumed innocent means that judge and jury must not pre-judge a case. It also means that the public authorities ought not to make pronouncements as to the guilt or innocence of an individual before conclusion of the trial. In its General Comment N°13, the Human Rights Committee found that there was "a duty for all public authorities to refrain from prejudging the outcome of a trial"12.

33.        Military Commission Order No 1 also includes the principle of presumption of innocence13. But the principle has repeatedly been ignored by the United States authorities, including the President and the Secretary of Defense, in public comments on the presumed guilt of Guantanamo Bay prisoners. For example, on 28 January 2002, the President referred to them as "killers, terrorists".

34.        These declarations cast grave doubts on the impartiality and independence of the administration of justice.

f.       Interrogation of prisoners and denial of access to lawyers

35.       According to information supplied by the United States authorities, the prisoners do not have access to lawyers, despite the fact that interrogations began on 23 January 2002. According to Amnesty International's Memorandum on the situation of prisoners held by the United States14, the interrogations can last up to four hours at a stretch and may take place at any time of the day or night. Evidence obtained from these interrogations may subsequently be used against prisoners in trials before the Military Commissions. It is worthwile to recall here that one of the commitment to which the United States subscribed when ratifying the ICCPR was to secure the right for everyone to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing, to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing, to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him and without payment by him if he does not have sufficient means to pay for it (Article 14 of the ICCPR).

36.        Article 17 of the Third Geneva Convention clearly proscribes interrogation of prisoners of war for purposes of military intelligence. Prisoners of war are required only to state their name, rank, number and date of birth. Once anyone has been identified as a crime suspect, they are entitled to be informed promptly of their rights, which include the right to remain silent, to be assisted by a lawyer of their choice and not to be interrogated without that lawyer being present.

37.       The detainees should have a right to legal advice and to freely choose their own representation. A source of concern is that there may be interference or bar on some lawyers for political reasons. In this regard, one will refer to the Basic Principles on the Independence of the Judiciary endorsed by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Milan in 1985, and especially article 2 setting that “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.

38.        In addition, interrogation conditions have to be considered as a whole. Some people have undergone surgery, others are suffering from post-traumatic stress. What is more, the detention conditions (confinement in small cells, possibility of unlimited detention or military trial) may be regarded as inhuman and degrading treatment15. Some persons may not only be vulnerable and make questionable statements, but they may also by subjected to undue pressure and make self-incriminating statements. Principle 21 of the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment provide that "it shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person".

g.       Diplomatic  protection

39.       The states whose nationals are detained at Guantanamo Bay are entitled to offer them diplomatic protection and to demand compliance with the ordinary law by the United States. Depending on the charges, which have yet to be decided, they may request their extradition for trial in their own territory16.

40.       The United States authorities have stated that extraditions would be decided on a case-by-case basis. When deciding, the United States should bear in mind the principle of non-refoulement, so as not to extradite a prisoner to a country where he might be subjected to torture or to inhuman or degrading treatment.

C.       Military tribunal

41.       On 13 November 2001, the President of the United States, Mr Bush signed a Military Order on the "detention, treatment and trial of certain non-citizens in the war against terrorism"17. This Order includes the establishment of special military tribunals to try non-United States citizens.

42.        The Order broadly covers any individual who does not have United States nationality who "(i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harboured one or more individuals described in subparagraphs (i) or (ii) ".18

43.        On 21 March 2002, the Secretary of Defense, Mr Rumsfeld, signed Military Commission Order No 119, detailing procedures for trial by the military commissions.

44.        Although Military Commission Order No 1 takes account of certain criticisms made after publication of the Presidential Order, it is clear that certain fundamental rights might not in future be respected if prisoners were tried by these military commissions.

45.        At the time of writing, only three people arrested in connection with the war on terrorism have been prosecuted.

46.        John Walker Lindh, the "United States Taliban" captured in Afghanistan, decided on Monday 15 July before the Federal Court of Alexandria, Virginia, to plead guilty. Lindh, aged 21, is accused of links with the Taliban and Osama bin Laden's al-Qa'eda network. John Walker Lindh has been removed from detention (he was returned to the United States in January 2002) and accorded a trial, but none of the foreign nationals has. This is clearly discriminatory.

47.        A plea agreement enabled the young man, facing ten charges, to escape life imprisonment. He agreed to forego the possibility of appeal if found guilty, on condition that his sentence would not exceed twenty years' imprisonment, while the prosecution agreed to drop the principal charges, especially conspiracy to commit attempts on United States lives.

48.        On 4 October 2002, he was sentenced by the Federal Court of Alexandria (Virginia) to twenty years in federal prison after telling the courtroom that he made a mistake in joining the Taliban.

49.        Zacarias Moussaoui is accused of conspiring to "commit acts of terrorism and aircraft piracy, destroy aircraft, use weapons of mass destruction, murder United States employees and destroy property”. Four of these six charges carry the death penalty. But Moussaoui, a French citizen, will be tried by the Federal Court of Alexandria, Virginia, and not by a military tribunal.

50.        He is regarded by the prosecution as the 20th hijacker of 11 September 2001, who was unable to take part in the hijackings, having been arrested in Minneapolis on 16 August because his visa was out of date. At the time, he was training on Boeing flight simulators.

51.        In a statement to the court on 22 April, Moussaoui asked to conduct his own defence, without the aid of officially appointed counsel. On 18 July 2002, he declared that he belonged to al-Qa'eda and told the court that he would plead guilty to four charges. This position was not immediately accepted by the court, which gave him a week to think it over. On 25 July 2002, Moussaoui finally decided to plead not guilty. The trial was due to start with jury selection on 30 September, but the federal judge granted a six-month delay in the start of the trial (it is the second time the judge has delayed the start of the trial).

52.        Richard Reid, a British citizen, aged 28, was arrested after attempting to detonate explosives contained in his shoes on the Paris-Miami flight on 22 December 2001. The case is being investigated by the US Attorney's Office in Boston. On 4 October 2002, Richard Reid pleaded guilty; he faces a minimum sentence of sixty years.

a.       Violations of the Constitution 

53.        According to the Fifth Amendment to the United States Constitution, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger [...]". The Guantanamo prisoners, whom the United States denies the status of prisoners of war, could revert de facto to the status of ordinary civilians to whom the Fifth Amendment must be applied.

54.        The argument that foreign terrorists may be arraigned before courts martial because United States soldiers are themselves liable to military jurisdiction has no foundation in United States law. The United States Constitution, while recognising the jurisdiction of military courts over United States military personnel, does not authorise the organisation of military proceedings against civilians suspected of committing terrorist acts or ordinary crimes. Furthermore, the Military Order of 13 November 2001 does not even provide the safeguards enjoyed by any court-martialled United States member of the armed forces.

55.        Moreover, the United States Supreme Court has stated unequivocally that civilians may on no account be arraigned before a special military court as long as the ordinary courts are able to function properly 20.

56.        The Presidential Order removes from the jurisdiction of the ordinary courts matters that are their proper concern, which violates Article II of the United States Constitution. Article II stipulates that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office (…)"21. The offences covered by this article are federal offences. Three exceptions are provided for: territorial courts, courts martial and cases involving public rights. The military tribunals provided for in the Presidential Order are not courts martial because the safeguards provided for are not equivalent to those of the Uniform Code of Military Justice. What is more, they will not try military personnel, but civilians. By inventing tribunals specially to try civilians accused of committing federal crimes, the Executive is violating Article II, which stipulates that only Congress has the power to establish federal courts.

b.       Only prisoners who are not US citizens will be tried by the Military Commissions 

57.        According to the Presidential Order, prisoners who are not United States citizens may be tried by the Military Commissions, even if charged with less serious offences than other, United States prisoners tried by ordinary civilian courts. Consequently, any foreign prisoner tried by a Military Commission will benefit from a lower minimum standard of justice than an United States prisoner. The ordinary civilian courts, unlike the Military Commissions, are obliged to abide by the United States Constitution, which guarantees certain fundamental rights.

58.        No reason or objective, reasonable criterion can explain this difference in treatment, which amounts to discrimination.

59.        The Presidential Order does not apply to United States citizens, yet there is no constitutional basis to justify foreigners not enjoying the same constitutional rights as United States in criminal proceedings. For instance, the US Supreme Court has declared that a law which had the effect of sentencing unlawful Chinese immigrants to a year's forced labour without trial was unconstitutional22. In a later ruling, the Supreme Court clarified its case-law by stating: "Under our law, the alien in several respects stands on an equal footing with citizens […]. [I]n criminal proceedings against him, he must be accorded the protections of the Fifth and Sixth Amendments"23.

60.       Furthermore, according to Article 14 of the ICCPR, " All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.".

61.        When ratifying the ICCPR, the United States made an interpretative declaration, stating that "the United States understands distinctions based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status – as those terms are used in Article 2 paragraph 1 and Article 26 – to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective. The United States further understands that the prohibition in paragraph 1 of Article 4 upon discrimination in time of public emergency, based 'solely' on the status of race, colour, sex, language, religion or social origin, not to bar distinctions that may have a disproportionate effect upon persons of a particular status".

62.        The Human rights Committee, in its concluding observations on the United States' report on the implementation of the ICCPR stated that "in the first statement of understanding made at the time of ratification, the principle of non-discrimination is construed by the [US] government as not permitting distinctions which would not be legitimate under the Covenant"24.

63.        The International Convention on the Elimination of all forms of Racial Discrimination, ratified by the United States on 21 October 1994, provides in Article 5 that : " States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice ".

64.       Other international instruments, such as the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Standard Minimum Rules for the Treatment of Prisoners, prohibit all discriminatory treatment. Lastly, the first Protocol to the Third Geneva Convention, which applies to all persons captured in the course of an armed conflict (regardless of prisoner-of-war status) provides that "persons who are in the power of a Party to the conflict who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour (…), national or social origin (…) or any other similar criteria"25.

65.        The establishment of Military Commissions to try only non-United States prisoners constitutes discrimination which clearly contravenes international standards. The trial of two foreigners arrested after 11 September (Zacarias Moussaoui and Richard Reid) by ordinary criminal courts lends force to the idea that all prisoners, whatever their nationality, should be tried by the same kind of courts.

c.       Right to be tried by an independent and impartial tribunal 

66.        The Presidential Order gives the Executive substantial discretionary powers to decide who shall be prosecuted and under what system, and whether review is necessary or not. That is contrary to the principle of separation of powers between the Executive and the Judiciary.

67.       The Secretary of Defense can: appoint military officers to the Military Commissions and dismiss them; determine the number of a Commission's members (from 3 to 7); designate the presiding officer; appoint the Chief Prosecutor, an United States armed forces lawyer; appoint the chief Defence Advocate, an United States armed forces lawyer; withdraw an officer's qualification to appear before a Commission; approve the charges brought by the prosecution; approve a judicial agreement between the prosecution and the accused; consider the amount of information to be made available to the defence; decide which parts of the proceedings will be held in camera and which open to the public and accredited journalists; select the panel of three military officers (who may include reserve officers or officers recalled from retirement); if designated by the President, take the final decision in all cases, including the death sentence; amend procedure before the Military Commission at any time.

68.       The President of the United States may: determine who is to be tried by a Military Commission; take the final decision in all cases, including the death sentence.

69.        This non-separation of powers is contrary to the ICCPR, according to which all trials must be conducted "by a competent, independent and impartial tribunal established by law " (Art. 14-1).

70.        The Military Commissions as provided for by the United States authorities will not be independent. The impartiality of their members, as officers appointed by the Executive, cannot be guaranteed. Moreover, all their members, including the Presiding Officer, may be dismissed by the Secretary of Defense "for good cause" 26. Lastly the proposed Military Commissions are not established by law, but set up by executive order of the President.

d.       Accused's right to be legally assisted by counsel of his or her choice

71.        Military Commission Order No 1 provides that the Chief Defense Counsel, appointed by the Minister of Defense or his designee, shall detail one or more military officers who are judge advocates in the United States armed forces27. However, the accused may choose another judge advocate in addition to or in place of the one detailed to defend him.

72.        The accused may also, at his own expense, choose a civilian attorney, who must be an United States citizen who meets certain security and trustworthiness requirements.

73.        But civilian counsel may not have access to certain classified secret documents used in the trial, to which only the military counsel will have access28. Accordingly, if the accused has chosen a civilian attorney, he may nonetheless be defended by military counsel, against his will.

74.        Furthermore, according to Military Commission Order No 1, " The Accused must be represented at all relevant times" by his military counsel (4C4). This could be interpreted as preventing an accused who has chosen a civilian lawyer and been obliged to retain his military counsel, from communicating confidentially with his civilian lawyer.

75.        This violates Article 14(3)b of the ICCPR whereby everyone is entitled to "communicate with counsel of his own choosing". Moreover, the Human Rights Committee asserted in its General Comment on this Article that this "requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications".

e.       Rules of evidence 

76.        Military Commission Order No 1 provides that an accused "shall not be required to testify during the trial" but that this "shall not preclude admission of evidence of prior statements or conduct of the Accused ".

77.       According to Article 14(3)g of the ICCPR, anyone accused of a criminal offence is entitled " not to be compelled to testify against himself or to confess guilt."

78.       Furthermore, Military Commission Order No 1 does not explicitly rule out statements extorted under torture or coercion. According to international law, any statement made under torture is inadmissible as evidence. The case of Lindh, the "United States taliban" is revealing, since he claims he was subjected to coercive measures during interrogation (blindfolded, naked and shackled in a metal container) at an United States base near Kandahar.

79.        Lastly, according to Military Commission Order No 1 (Section 6D(2)b), the Commission may hear testimony from a witness who refuses to swear an oath or make a solemn undertaking, as well as anonymous witnesses. It may also take evidence that is kept secret.

80.        In conclusion, the Military Commission's rules of evidence will afford less protection than those prevailing in ordinary civilian courts, That is all the more disturbing because the Military Commission will be able to pronounce the death sentence.

f.       Right of appeal to an independent and impartial tribunal

81.        The Presidential Order explicitly stipulates that anyone tried by the Military Commission "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal"29.

82.        Instead, an accused convicted by the Military Commission can have his trial reviewed first by the Secretary of Defense, who will carry out an "administrative review". If the Secretary of Defense finds that the proceedings were in order, he must then forward the record to a Review Panel.

83.        This Panel will be composed of three Military Officers appointed by the Secretary of Defense, who himself approved the charge or charges30. Within 30 days, the Panel must forward the case to the Secretary of Defense with a recommendation or re-submit the case to him for further proceedings if an error of law has occurred.

84.        The final decision rests with the President of the United States, who determined that the suspect be tried by the Commission, or with the Secretary of Defense, if designated by the President.

85.        According to Article 14(5) of the ICCPR, " Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law ". But, according to Article 14(1) ICCPR, the tribunal must be " competent, independent and (…) established by law ".

g.       Sentencing by the Military Commission 

86.        The Commission will deliberate and vote in camera. A two-thirds majority is required for a finding of guilt, unanimity for the death sentence. In view of the procedure before the Commission and the risk of bias, it is very disturbing that a Commission should have the power to inflict the death penalty. The risk of an irrevocable miscarriage of justice is greater in the case of death sentences handed down by military commissions than in the ordinary civilian courts, for military commissions generally accept lower standards of evidence and lack independence from the executive.

D.       Conditions of transfer and detention 

a.       Conditions of transfer

87.        The transfer of prisoners from Afghanistan to Guantanamo Bay (Camp X-Ray) began on 10 January 2002. During transfer, which involved 25-hour flights, the prisoners were handcuffed and shackled and made to wear mittens and surgical masks, ear-muffs and dark glasses. They had their heads shaved and their beards shaved off. At least two were sedated.

88.        Security measures during the transfer of prisoners are legitimate, but they should be proportional to the risk and comply with international standards, which prohibit inhuman and degrading treatment. Moreover, Rule 45 of the Standard Minimum Rules for the Treatment of Prisoners provides that "the transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited".

b.       Conditions of detention 

89.        Until the end of April 2002, when they were transferred to a purpose-built prison (Camp Delta), the prisoners were kept in cages (2.4×2.4m) open to the elements. They are entitled to one quarter-hour's ablutions per day, without necessarily having access to showers.

90.        Practising Moslems were given a copy of the Koran and a skull-cap and they are attended by a chaplain at their 5 daily prayers.

91.        They are allowed to communicate with other prisoners in adjoining cells, but not with guards.

92.        The prisoners are handcuffed during medical examinations and interrogation and are shackled when outside their cells. To begin with, they had to walk from their cells to the interrogation buildings, but to save time and because the shackles caused sores, they are now transported by motor-van or on stretchers, but are still handcuffed.

93.        The camp and the cells are brightly lit from 6pm until daylight.

94.       Prisoners are entitled to twice fifteen minutes' exercise outside their cells each week, while the Standard Minimum Rules for the Treatment of Prisoners provide for one hour daily.

95.        The new cells to which the prisoners have been transferred are smaller than the previous ones (2.03×2.44m) and have a bed, toilet, wash-basin with running water and a window. They can still communicate with their neighbours.

96.       Constant illumination in cells constitutes a sleep deprivation.

97.        The authorities have supplied the prisoners with sheets, mattresses, pails, sandals and toiletries. Contrary to the provisions of Article 18 of the Third Geneva Convention, the prisoners have been deprived of all personal belongings. A prisoner of war normally continues to wear his uniform, which is a mark of his military dignity. At Guantanamo, the prisoners wear an orange overall and have been allowed to keep nothing, not even a scarf31.

98.       The Standard Minimum Rules for the Treatment of Prisoners provide that "every prisoner who is not employed on outdoor work shall have at least one hour of suitable exercise in the open air daily, if the weather permits "32 and that "all accommodation provided for the use of prisoners, and in particular all sleeping accommodation, shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floorspace, lighting, heating and ventilation"33.

99.       Chapter I of Section II of the Third Geneva Convention deals with the internment of prisoners of war, providing for open conditions and the grouping of prisoners according to their nationality, language or customs. In February 2002, Mrs Robinson joined the International Committee of the Red Cross in asking the United States administration to clarify whether the Guantánamo prisoners would be allowed the protections of the Geneva Conventions for prisoners of war.

100.        It is therefore disturbing to note that, despite the efforts of the United States administration, the detention conditions do not comply with international standards. Detention in small cells, virtually 24 hours a day with a minimum of exercise for over 5 months may be regarded as inhuman and degrading treatment according to international law. The psychological stress upon prisoners is heightened by the arbitrary and indefinite nature of their detention. The Pentagon recognised that 14 prisoners have attempted suicide since the prison was built one year ago, and there were five suicide attempts in January 2003; a Pentagon spokeswoman said medical and psychiatric teams were working to try to prevent further injury or attempted suicides.

c.       Communication with the outside world

101.        Anyone detained or imprisoned is entitled, according to international standards, to inform or require the competent authority to inform the members of his family or other persons of his choice of his arrest, detention or imprisonment. Moreover, any prisoner is entitled to inform his family promptly of his place of detention after each transfer.

102.        According to Amnesty International, information concerning attempts by prisoners' families to obtain information about them show that the United States authorities have not fully and speedily facilitated communications between prisoners and their families.

103.        Furthermore, according to the Pentagon, many prisoners at Guantanamo did not know, at least until 1 February 2002, where they were. Keeping the prisoners in ignorance about their place of detention obviously restricted their ability to inform their families.

104.        Various international instruments have recognised the importance of facilitating prisoner-family communications and visits. But so far no family has been allowed this right.

105.        International law recognises prisoners' right to be informed promptly of their right to communicate by appropriate means with a consular post or diplomatic mission of the state whose nationality they hold. No information concerning the conditions of detention sheds light on whether the prisoners have been informed of this right. If they are granted this right, then " foreign nationals shall be allowed reasonable facilities to communicate with [their] diplomatic and consular representatives". (Standard Minimum Rules for the Treatment of Prisoners. Rule 38-1).

106.       Mr Abassi’s solicitor received a bundle of 18 communications from the prisoner requesting legal representation and the conditions of detention, this after the third interrogation by military intelligence. Indications are reported that there are delays in the receiving/sending mail.

107.       To conclude on this section, it appears that prisoners in Afghanistan and in Guantanamo Bay are subjected to a treatment which can be qualified as torture or other cruel, inhuman or degrading treatment. The United States government would be wise to treat these prisoners in accordance with international human rights law and humanitarian law.

E.       Conclusion and recommendations 

108.        Fundamental judicial safeguards are not afforded by the Military Order, nor a fortiori by the procedural rules applicable by the special military tribunals. The indictment is not decided by the Grand Jury, which has no part in the proceedings, the presumption of innocence is not respected, the accused's right not to testify against himself is not provided for, the accused cannot choose counsel, there is no right of access to prosecution evidence, there is no provision for allowing the accused the benefit of reasonable doubt, there is no possibility of appeal, there are no provisions governing rules of evidence, the applicable law is unknown, but there can be no question of retroactive rules or of law invented by these tribunals or by executive order, because Congress alone is empowered to define federal offences.

109.        The Human Rights Committee, in General Comment No 13 on Article 14 ICCPR," notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. 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. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate 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 ".

110.        The Parliamentary Assembly might invite the United States forthwith to align their practice concerning prisoners held in Afghanistan and at Guantanamo Bay with international law, that is to let an international competent tribunal determine the legal status of the detainees, to install an independent court to review individual cases, and to review the conditions of detention according to the Geneva Conventions and the Standard Minimum Rules for the Treatment of Prisoners.

111.        The Assembly should call upon the United States not to extradite prisoners to countries where there is a clear risk of torture or inhuman or degrading treatment, or where they might be subjected to the death penalty.

112.        The member states of the Council of Europe might dispatch representatives to question certain of their nationals on the spot, accompanied by experimented lawyers. A delegation of the Council of Europe Parliamentary Assembly could even ask to visit Camp Delta with a team of lawyers.

113.        The Parliamentary Assembly refers to its Resolution 1253 of 25 June 2001, in which it re-affirms its opposition to capital punishment, considering that it has no legitimate place in the penal systems of modern civilised societies and that its application constitutes an act of torture and inhuman or degrading punishment. In that resolution, it also stated that the United States was failing in its obligations according to Statutory Resolution (93) 26 as a country enjoying observer status with the Council of Europe.

114.        In the event of a clear danger of failure to abide by the rules of international law, the member states are entitled to demand the extradition of their nationals in order to try them in their territory. The states whose nationals risk the death penalty should seek their extradition. Secretary of Defence Rumsfeld said the United States might agree to return suspects if the receiving country would guarantee prosecution. It is alleged the United States agreed to return eight Russian suspects to Russia on that condition.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9445, Reference No 2732 of 29 May 2002

Draft resolution adopted by the Committee on 29 April 2003 with 40 votes in favour, 1 vote against and 1 abstention

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Attard Montalto, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce (alternate: Mrs Smith), Mr Chaklein, Mrs Christmas-Møller, Mr Cilevics, Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko (alternate: Mr Sharandin), Mr Guardans (alternate: Mrs Alvarez-Arenas), Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Kelber (alternate: Mrs Hoffmann), Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev (alternate: Mr Zavgayev), Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Manzella (alternate: Mr Ianuzzi), Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu (alternate: Mrs Cliveti), Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner

1 See, for example, the decision of the US Supreme Court in Johnson v. Eisentrager, 339 US 763. 1 950.

2 General Comment N°3, §1.

3 Concluding Observations of the Human Rights Committee: Israel. 18/08/98. UN Doc CCPR/C/79/Add.93.

4 White House communiqué of 7 February 2002.

5 Article 2 Third Geneva Convention.

6 «Le statut incertain des détenus sur la base américaine de Guantanamo», Philippe Weckel, R.G.D.I.P. 2002-2.

7 Article 4(1) Third Geneva Convention.

8 For examples of violation by France: Tomasi, 27 August 1992, A 241 A.

9 Article 5§4 European Convention on Human Rights.

10 N° 305/1988, Van Alphen v/ Netherlands, Dec. 23July 1990, A/45/40, vol. II, p. 124.

11 N° 526/1993, Michael and Brian Hillvc/ Spain, 2 April 1997, CCPR/C/59/D/526/1993.

12 §7 General Comment N°13 concerning Article 14 ICCPR.

13 Department of Defense, Military Commission Order No. 1, 5(b).

14 AI Index: AMR 51/053/2002. April 2002.

15 AI Index: AMR 51/053/2002. April 2002: "Their detention at Guantanamo has no purpose other than to obtain intelligence from them and their conditions of detention are intended partly to prevent aggression on their part, but also to encourage them to talk".

16 These states' attitude remains very cautious. When making the second visit to check prisoners' identities at the end of March a representative of the French Foreign Ministry indicated that France wanted them to be tried in France, and not by a military tribunal. Pakistan has made representations that detainees were low level combatants. A representative of the German government has said prisoners should have been subject to interrogation and should not have been taken to Guantanamo Bay but released. The UK has made diplomatic representations as well.

17 ‘Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’.

18 Military Order. Section 3(a).

19 Military Commission Order No 1.

20 For cases of internal armed conflict, see ex parte Milligan, United States Reports, vol. 71, 1866, p. 1 and for cases of international armed conflict, see Duncan v. Kahanamoku, United States Reports, vol. 327, 1946, p. 304.

21 http://www.ridi.org/adi/articles/2002/200206pel.htm - _ftn27

22 Wong Wing v. United States, United States Reports, vol. 163, 1896, p. 228.

23 Harisiades v. Shaughnessy, United States Reports, vol. 342, 1952, p. 580.

24 UN Doc. CCPR/C/79/Add.50. 24 August 1994.

25 Article 75(1) Third Geneva Convention.

26 Military Commission Order No. 1. 4(A)3.

27 Military Commission Order No. 1. 4(C)2

28 Military Commission Order No. 1. 4(C)3b

29 Military Order. Section 7(b)2

30 Military Commission Order No. 1 .6(A) 2

31 A hunger strike by a large number of prisoners (of whom there were 194 on 1 March 2002) was provoked on 28 February by a soldier making a prisoner remove a turban he had made from a towel.

32 Standard Minimum Rules for the Treatment of Prisoners. Rule 21(1).

33 Standard Minimum Rules for the Treatment of Prisoners. Rule 10.