| Parliamentary Assembly Assemblée parlementaire |
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Legality of detentions by the United States in Guantánamo Bay
Doc. 10178
6 May 2004
Motion for a resolution
presented by Mr McNamara and others
This motion has not been discussed in the Assembly and commits only the members who have signed it
1. On 26 June 2003, when the Assembly adopted Resolution 1340 (2003) on the rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, there were 600 persons held in the UK base at Guantánamo Bay. Resolution 1340 found a number of grounds of which the detentions were in breach of international standards in the field of human rights and humanitarian law, as well as of the United States’ obligations as an Observer to the Council of Europe, and made a series of proposals on how the situation should be remedied. Nevertheless, the number of detainees today remains around 600, many of whom have been incarcerated for several years in conditions that clearly fall short of international standards.
2. In response to a request from the Committee of Legal Affairs and Human Rights, on 12-13 December 2003 the European Commission for Democracy through Law (“the Venice Commission”) adopted its Opinion on the possible need for further development of the Geneva Conventions (CDL-AD (2003) 18). This concluded that “International Humanitarian Law, as far as it concerns the rules on detention and treatment of persons who have been detained in the course of an international armed conflict, offers a generally appropriate legal framework” applicable inter alia to suspected members of an international terrorist network and to nationals of a state that is not a party to the conflict. The US Government, however, still refuses to respect the rights guaranteed to these detainees by the Geneva Conventions, or even to allow their legal status to be determined before an independent tribunal.
3. Despite the Assembly’s conclusions, the US Government, in response to challenges before the US courts, also persists in arguing that, firstly, the President has unlimited power to act in pursuit of the “war on terror”, entirely free from judicial oversight; and secondly, that the Guantánamo Bay base, although clearly within the effective jurisdiction of the United States, is not on sovereign territory and therefore is not covered by the provisions of the US Constitution or the jurisdiction of US courts. Should detainees eventually come to trial, it will be before a military tribunal established under executive authority, operating in breach of most international fair trial provisions and able to pronounce penalty of death.
4. Those that may be released from GuantánamoBay, if not following trial and acquittal, may be left tainted by association with international terrorism. Many risks being returned to countries renowned for repression and abuse of human rights: international law clearly forbids removal to a risk of ill-treatment. Some may have suffered psychological damage as a result of the conditions of detention: for those returned to Council of Europe member states, their circumstances should be investigated.
5. The situation is only exacerbated by the passage of time, as potentially indefinite detention in unacceptable conditions is continued. The Assembly, therefore, urges the United States to ensure that all detainees are held in conditions fully compatible with international standards; to accept the conclusions of the Venice Commission as regards the application of international humanitarian law; to bring criminal charges promptly against all detainees held in Guantánamo Bay for whom sufficient evidence exists, for trial in accordance with international standards; to release forthwith all those detainees against whom there is insufficient evidence for charges to be brought; and not to return individuals to countries in which they risk ill-treatment. It also resolves to monitor the situation of those who have been returned to Council of Europe member states.
Signed
[1]:
McNamara, United Kingdom, SOC
Bemelmans-Videc, Netherlands, EPP/CD
Davis, United Kingdom, SOC
Dragassakis, Greece, UEL
Flynn, United Kingdom, SOC
Gross, Switzerland, SOC
Hancock, United Kingdom, LDR
Judd, United Kingdom, SOC
Pourgourides, Cyprus, EPP/CD
Wohlwend, Liechtenstein, EPP/CD
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SOC |
Socialist
Group |