A framework for closing Guantánamo

I’d like to end Guantánamo. I’d like it to be over with. One of the things we will do is we’ll send people back to their home countries.... There are some who need to be tried in U.S. courts. They’re cold-blooded killers…And yet, we believe there’s a – there ought to be a way forward in a court of law, and I’m waiting for the Supreme Court of the United States to determine the proper venue in which these people can be tried.

President George W. Bush, June 21, 2006

In its 19 May 2006 conclusions, the Committee against Torture called for the closure of the Guantánamo detention camp. Following the reported suicides of the three detainees on 10 June 2006, five UN human rights experts reiterated their call for urgent closure of the facility. It is these calls for closure of Guantánamo which have drawn a series of comments from President Bush and a number of officials in the US administration.

Amnesty International was among the first to call for the closure of Guantánamo over a year ago and welcomes President Bush’s statement of 8 May 2006 in which he said that he would “very much like to end Guantánamo”, and “to get people to a court”. The President noted that the US administration was waiting for the Supreme Court to rule in Hamdan v. Rumsfeld on the question of trials. Amnesty International stresses, however, that the President does not have to wait for the Supreme Court to rule. He can announce now that the Guantánamo detention facility will close and that all the detainees will either be charged and tried without further delay in a US court or released with full non-refoulement guarantees.

While the possibility of Guantánamo’s closure is now publicly being entertained within the US administration, various officials have questioned how this end can be brought about, raising legitimate questions about public security on the one hand and the safety of the detainees on the other. Amnesty International notes that several officials have indicated that the administration is open to suggestions as to how to resolve the Guantánamo situation. On 4 May, for example, John Bellinger said that the USA would “welcome the assistance of the international community” on this issue. Earlier, Secretary of Defense Rumsfeld said of the continuing detentions at Guantánamo, that “if someone has a better idea, I’d like to hear it”. In similar vein, on 4 May, Attorney General Gonzales said that “I hear some critics say we should close down Guantánamo and yet no one is willing to offer the United States an alternative.”

On 21 May 2006, US Secretary of State Condoleezza Rice said that “We will be delighted when we can close down Guantánamo. Everybody wants to close down Guantánamo”. However, she asked those who have called for the closing of the detention camp – who include the United Nations Secretary General, the UN Committee Against Torture, the European Parliament and various European leaders and officials – to consider the security and human rights implications of releasing the detainees. Amnesty International does not claim that the closure of the Guantánamo detention facility is without its challenges. Yet the US government has the responsibility to meet this challenge.

Amnesty International here details its recommendations for an alternative to continued detentions at Guantánamo. In brief, those held in the base should be released unless they are to be charged and tried in accordance with international standards of fair trial. No detainees who are released should be forcibly sent to their country of origin or other countries where they may face serious human rights abuses. Indeed, it is crucial that emptying and closing down the Guantánamo camp not result in a transfer of the human rights violations elsewhere. In more detail, the organization recommends the following framework for determining what should happen to the detainees who are still held there.

General

  1. Any detention facility which is used to hold persons beyond the protection of international human rights and humanitarian law should be closed. The detention camp at Guantánamo Bay Naval Base falls into this category, and in more than four years of detention operations there, the US administration has failed to bring the facility into compliance with international law and standards.
  2. Closing Guantánamo must not result in the transfer of the human rights violations elsewhere. All detainees in US custody must be treated in accordance with international human rights standards, and, where relevant, international humanitarian law. All US detention centres must be open to appropriate external scrutiny, in particular that of the International Committee of the Red Cross (ICRC).
  3. The responsibility for finding a solution for the detainees held in Guantánamo rests first and foremost with the USA. The US administration created the system of detention Guantánamo in which detainees – many of whom were transferred to the facility unlawfully – have been held without charge or trial, outside the framework of international law and without the possibility of full recourse to US courts. It is therefore the US administration’s responsibility to redress this situation in full compliance with international human rights standards.
  4. All US officials in the administration should desist from further undermining the presumption of innocence in relation to the Guantánamo detainees. The continued commentary on their presumed guilt applies a dangerous label to them – dangerous to the prospect for a fair trial and dangerous to the safety of any detainee who is released. This can only make the USA’s task of resolving the Guantánamo issue more difficult.
  5. Those currently held in Guantánamo should be released unless they are to be charged and tried in accordance with international standards of fair trial.
  6. No detainees who are released should be forcibly sent to their country of origin or other countries where they may face serious human rights abuses.

    Fair Trials
  7. Those to be charged and tried must be charged with a recognizable crime under law and tried before an independent and impartial tribunal, such as a US federal court, in full accordance with international standards of fair trial. There should be no recourse to the death penalty.
  8. Any evidence obtained under torture or other cruel, inhuman or degrading treatment or punishment should not be admissible. In light of the years of legal, physical and mental abuse to which detainees held in Guantánamo have been subjected, any trials must scrupulously respect international standards of fairness and any sentencing take into account the length and conditions of detention in Guantánamo or elsewhere prior to be transported to Guantánamo.
  9. President George W. Bush should rescind his 13 November 2001 Military Order establishing military commissions and authorizing detention without charge or trial. The military commissions do not afford proper safeguards for a fair trial. They are not independent, the procedures before them do not secure a fair process (eg statements extracted under cruel, inhuman or degrading treatment may be used as evidence), the defendant may be excluded from hearing all of the evidence against him and, under the Detainee Treatment Act, there is only a limited right of appeal against their sentences to a court of law.

    Solutions for those to be released
  10. There must be a fair and transparent process to assess the cases of each of the detainees who is to be released, in order to establish whether they can return safely to their country of origin or whether another solution ought to be found. In all cases detainees must be individually assessed, be properly represented by their lawyers and given a full opportunity to express their views. Relevant international agencies, such as the Office of the United Nations High Commissioner for Refugees (UNHCR), could be invited to assist in this task, in line with their respective mandates. The options before the US Administration to deal in a manner which fully respects the rights of detainees who are not to be tried and who therefore ought to be released without further delay include the following:

    (a) Return. The US authorities should return released detainees to their country of origin or habitual residence unless they are at risk of grave human rights violations, including prolonged arbitrary detention, enforced disappearances, unfair trial, torture or other ill-treatment, extrajudicial executions, or the death penalty. Among those to be returned are all those who according to the laws of war (Geneva Conventions and their Additional Protocols) should have been recognized after their capture as prisoners of war, and then released at the end of the international armed conflict in Afghanistan, unless they are to be tried for war crimes or other serious human rights abuses.

    (b) Asylum in the USA. The US authorities should provide released detainees with the opportunity to apply for asylum in the USA if they so wish, and recognize them as refugees if they meet the requirements of the 1951 UN Convention on Refugees (well-founded fear of persecution on certain grounds if returned to their country of origin). The US authorities must ensure that any asylum applicants have access to proper legal advice and to fair and effective procedures that are in compliance with international refugee law and standards, including the opportunity to contact UNHCR. Asylum applicants should not be detained except in the most exceptional circumstances.

    (c) Other forms of protection in the USA. Persons who do not meet the criteria of the 1951 UN Convention on Refugees, but are at risk of grave human rights abuses in the prospective country of return and wish to remain in the USA must receive other forms of protection and should be allowed to stay in the USA. They should not be detained, unless it is established that their detention is lawful, necessary and proportionate to the objective to be achieved, in accordance with international human rights law and standards.

    (d) Transfer to third countries. The US authorities may seek durable solutions in third countries for those who cannot be returned to their countries of origin or habitual residence, because they would be at risk of grave human rights abuses, and who do not wish to remain in the USA. Any such solution should address the protection needs of the individuals, respect their human rights and take into account their views. All transfers to third countries should be with the informed consent of the individuals concerned. UNHCR should be allowed to assist in such a process, in accordance with its mandate and policies. Released detainees should not be subjected to any pressures and restrictions that may compel them to choose to resettle in a third country. Other countries should consider accepting released detainees voluntarily seeking resettlement there, especially countries of former habitual residence or countries where released detainees had close family or other ties.

    Reparation
  11. The USA has an obligation under international law to provide prompt and adequate reparation, including restitution, rehabilitation and fair and adequate financial compensation to released detainees for the period spent unlawfully detained and other violations that they may have suffered, such as torture or other ill-treatment. The right of victims to seek reparations in the US courts must not be limited.

    Transparency pending closure
  12. The US authorities should invite the five UN experts – four Special Rapporteurs and the Chairperson of the Working Group on Arbitrary Detention – to visit Guantánamo without the restrictions that led them to turn down the USA’s previous invitation. There should be no restrictions on the experts’ ability to talk privately with detainees