2006 - Commissioner's Human Rights Comment

Back The Guantánamo scandal is also our concern

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When three prisoners in the Guantánamo camp committed suicide recently, they were accused by a US spokesperson of not respecting the sanctity of life. Killing themselves was an act of “asymmetric warfare” against the US, he insisted.

Another interpretation is that they might have been desperate. Like other detainees, they had been interrogated using illegal methods. They had been totally cut off from their previous world, except for sporadic and thoroughly censored mail correspondence.

They had been kept detained for four years – one of them was a minor of 17 when he was brought to Guantánamo – and there was no clarity about how much longer they would have to stay in the camp.

It was not even clear whether they would ever be given a chance to challenge their detention. According to the US Government, the Guantánamo inmates were “illegal combatants”. The meaning was that they were neither prisoners of war nor subject to criminal procedures giving them the right to defend themselves in a court of law.

In response to criticism that this violated international law, the Bush administration has given two answers. One is that some detainees might be tried in a military tribunal. The other is that inmates were detained not because of what they had done but for what they might do if released – and, therefore, there would be no trial.

The US Supreme Court has now ruled against the military tribunals which were set up to try cases in Guantánamo. It did not accept proceedings in which the defendants themselves could be excluded; conviction could be decided on the basis of evidence that is kept secret from the defendants and their lawyers; and hearsay and even coerced testimonies could be admitted.

It was also important that the Supreme Court made clear references to international standards and the Geneva Conventions and stressed that these are relevant in the American system. The conclusion is that the other “answer” – that the detainees are kept in order to prevent them from the possibility of threatening US interests – must indeed be refuted.

The Parliamentary Assembly of the Council of Europe has added its voice to the many who have demanded that the Guantánamo camp be closed and the inmates released or charged in appropriate courts.

It is clear that many of the detainees have never been involved in terrorist actions – this has also been admitted by the US Government itself. When all this is over, former detainees are likely to claim compensation for the illegal deprivation of their liberty.

The Guantánamo scandal is also a European concern, not least because some of the inmates are citizens of countries on our continent and it has been difficult for their governments to defend them.

In a wider perspective, fundamental principles of justice and the rule of law are at stake. One crucial norm is that no one should be deprived of liberty without due process – this is the point on which the Supreme Court made its important ruling.

This decision was hopefully the first major step towards rectifying the serious mistakes after 9/11. We should combat terrorism but cannot accept that one government takes the liberty to capture people in other countries and then keep them detained outside the law.

Thomas Hammarberg
 
Strasbourg 10/07/2006
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