Doc. 9445

7 May 2002

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

Motion for a resolution
presented by Mr McNamara and others

      The Assembly,

      Reiterates its horror at the events of 11 September 2001; affirms its condemnation of international terrorism and restates its determination to confront its perpetrators and bring them to justice;

      Notes that as of 8 April 2002, there were, according to the US government, 242 prisoners held in US custody in Afghanistan and a further 299 in Guantánamo Bay. Those held are reported to be nationals of Afghanistan, Algeria, Australia, Azerbaijan, Bahrain, Belgium, China, Denmark, Egypt, France, Iran, Kuwait, Qatar, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Turkey, United Kingdom, Uzbekistan and Yemen;

      Further notes that all persons under any form of detention or imprisonment, including prisoners of war and other persons arrested, detained or interned for reasons related to an armed conflict, have fundamental rights recognised under international human rights and humanitarian law;

      Further notes that these rights are recognised even with respect to persons suspected of the most serious crimes – of genocide, crimes against humanity and other war crimes;

      Further notes that international humanitarian law recognises that groups of persons taken into custody, such as persons detained in an international or non-international armed conflict, have similar or additional rights;

      Welcomes the statement of Kofi Annan, United Nations Secretary General, in January 2002: “There is no trade-off between effective action against terrorism and the protection of human rights. On the contrary, I believe that in the long term we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism.”;

      Holds that those persons captured and held by the USA in the armed conflict in Afghanistan must be presumed to be prisoners of war;

      Notes that the US government has not granted prisoner-of-war status to any person held in its custody in Guantánamo Bay, nor has it submitted the determination of the status of any person to a competent tribunal as required by the Third Geneva Convention;

      Welcomes the thorough and detailed Memorandum on the Rights of People in US Custody in Afghanistan or Guantánamo Bay drawn up and published by Amnesty International on 16 April 2002 and expresses concern at the allegations that the United States has:

-       transported and held persons in conditions that may amount to cruel, inhuman or degrading treatment, and that violate minimum standards relating to detention;

-       not informed persons held in custody of their rights;

-       refused to grant persons held in custody access to legal counsel, including during questioning by US and other authorities;

-       refused to grant persons held in custody access to the courts to challenge the lawfulness of their detention;

-       undermined the presumption of innocence through a pattern of public commentary on the presumed guilt of persons held in custody in Guantánamo Bay;

-       failed to facilitate promptly communications with or grant access to family members;

-       undermined due process and extradition protections in cases of people taken into custody outside Afghanistan and transferred to Guantánamo Bay;

-       threatened to select foreign nationals for trial before military commissions – executive bodies lacking clear independence from the executive and with the power to hand down death sentences, and without the right to appeal to an independent and impartial court;

-       raised the prospect of indefinite detention without charge or trial, or continued detention after acquittal, or repatriation that may threaten the principle of non-refoulement;

-       failed to show that it has conducted an impartial and thorough investigation into allegations of human rights violations against Afghanistan villagers detained by US soldiers;

      Further notes that the Presidential Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War against Terrorism of 13 November 2001 provides for non-US nationals to be denied fair trial rights in violation of international law guaranteeing equality before the law and prohibiting discrimination, including on the basis of nationality and subject to the death penalty;

      Recalls the Council of Europe Parliamentary Assembly Resolution 1253 of 25 June 2001, reaffirming its complete opposition to capital punishment; that the death penalty has no legitimate place in the penal systems of modern civilized countries; and that its application constitutes torture and inhuman or degrading treatment;

      Further recalls that this resolution found the United States to be in violation of its obligations as a Council of Europe Observer State under Statutory Resolution (93) 26;

      Urges the United States to bring its practice regarding the prisoners held in Afghanistan or Guantánamo Bay into line with international law without delay;

      Believes that abuses and violations of international law can only serve to undermine the goal of defeating international terrorism and preventing further outrage;

      Resolves to appoint a delegation to visit places of detention in Afghanistan and Guantánamo Bay and to report to the Assembly;

      Further calls upon the Committee of Ministers to reconsider the matter of the Observer Status of the United States.

Signed : ¹

McNamara, United Kingdom, SOC

Davis, United Kingdom, SOC

Stepová, Czech Republic, SOC

Lloyd, United Kingdom, SOC

De Puig, Spain, SOC

Gross, Switzerland, SOC

Bruce, United Kingdom, LDR

Aguiar, Portugal, EPP

Alis Font, Andorra, SOC

Behrendt, Germany, SOC

Budin, Italy, SOC

Cilevičs, Latvia, SOC

Cox, United Kingdom, SOC

Cryer, United Kingdom, SOC

de Zulueta, Italy, SOC

Dromberg, Finland, EPP

Etherington, United Kingdom, SOC

Flynn, United Kingdom, SOC

Katseli, Greece, SOC

Khripel, Russia, SOC

Kirilov, Bulgaria, SOC

Kontogiannopoulos, Greece, SOC

Lörcher, Germany, SOC

Lucyga, Germany, SOC

O’Hara, United Kingdom, SOC

Pangalos, Greece, SOC

Pourgourides, Cyprus, EPP

Schellens, Belgium, SOC

Schloten, Germany, SOC

Smith, United Kingdom, SOC

Timmermans J, Belgium, SOC

Vermot-Mangold, Switzerland, SOC

Vis, United Kingdom, SOC

Wray, United Kingdom, SOC

¹        SOC: Socialist Group

      EPP: Group of the European People’s Party

      EDG: European Democratic Group

      LDR : Liberal, Democratic and Reformers’ Group

      UEL: Group of the Unified European Left

      NR: not registered in a group