Comment & Debate
Colin Powell – “I would get rid of Guantanamo and the military commission system and use established procedures in federal law[…]It’s a more equitable way, and more understandable in constitutional terms,”[1]
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “Right to be tried by a competent and independent tribunal 30. Article 14 (1) of ICCPR states that in criminal proceedings “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.33 The Basic Principles on the Independence of the Judiciary also recognize that “everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”34. The Military Order provides that detainees must be tried by the Military Commission created ad hoc for Guantánamo detainees and denies them the well-established procedures of ordinary civilian courts or military tribunals.
31. The Human Rights Committee in general comment No. 13 (1984) interpreted article 14 of ICCPR to mean that the basic requirements for a fair trial within article 14 apply both to ordinary and specialized tribunals.35 In noting the existence in certain countries of military tribunals which try civilians, the Committee considered that “this could present serious problems as far as the equitable, impartial and independent administration of justice is concerned” and that “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”. The Committee concludes 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”36. Military commissions should therefore also fully comply with the provisions set out in article 14 and respect the guarantees for a fair trial.
32. The proceedings before military commissions at Guantánamo Bay are hard to reconcile with article 14 of ICCPR. According to the military order, the judges of the commissions are appointed by the “Appointing Authority”, which is under the authority and the responsibility of the Department of Defense and ultimately of the President. Judges should be commissioned officers of the armed forces and may be removed by the Appointing Authority. Such provisions suggest not only interference by but full control over the commissions’ judges by the executive: the requirement of an independent judiciary is clearly violated. In addition, there appears to be no impartial judicial mechanism for resolving conflict of jurisdiction: decisions on issues of jurisdiction and competence are made by the Appointing Authority, leaving the military commissions outside the control of judicial authorities. 33. Finally, the Military Order requires only a minimum level of legal knowledge for appointment to the commissions. The inadequate qualifications of the members impede the regular and fair conduct of the hearings, violating the essential requirement that “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law”. 37 The detainees’ right to be tried by judges sufficiently competent in law is violated although Revised Military Commission Order No.1 mitigates this by allocating responsibility for ruling on most questions of law to the presiding officer, who must be a judge advocate of any of the United States Armed Forces.”
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “The right to a fair trial 34. The right to a fair trial is recognized in article 14 of ICCPR, as well as articles 105 and 106 of the Third Geneva Convention and article 75 of the Additional Protocol I (this last article is considered to be declaratory of customary law)38. The fundamental principles of the right to a fair trial cannot be derogated from by any State, under any circumstances, as affirmed by the Human Rights Committee in its general comment No. 29.39 The Military Order recognizes the duty to “provide a full and fair trial”, but its provisions do not guarantee that right.
35. The Military Order limits the right to be tried in one’s presence. Also, the right of the accused to defend himself/herself in person or through legal assistance of his/her own choosing is violated since, as noted above, the Military Commissions provide for a defence counsel to be appointed directly by the Appointing Authority, and for the possibility of his/her removal by the same authority “for good reason”. Under the Military Order the accused may retain the services of a civilian attorney of his own choosing, but that attorney has to satisfy a number of requirements, including being determined eligible for access to classified information, signing confidentiality agreements regarding the procedures and the cases he or she is involved with, traveling to Guantánamo at his own expenses, and agreeing not to leave the base without authorization. In addition, certain information and evidence may be kept from the civilian lawyer and he or she may be excluded from the hearing for reasons of national security. All of these requirements imperil the right to a fair trial under article 14(1) of ICCPR and specific “minimum guarantees” set forth in article 14(3)(b) and (d): to be allowed to adequately prepare one’s defense, with the assistance of counsel of one’s own choosing, and to test evidence adduced against one. They further clearly violate the Basic Principles on the Role of Lawyers40.
36. The right adequately to prepare one’s defence (ICCPR, art. 14(3) (b) and the Basic Principles on the Role of Lawyers)41, which includes access to documents and other evidence and to examine witnesses against oneself and have witnesses examined on one’s behalf is not guaranteed, since the Military Order provides that “[t]he Accused may obtain witnesses and documents for the Accused’s defense, to the extent necessary and reasonably available as determined by the Presiding Officer”.42 The grounds for denying the accused and the defence counsel of his choice access to “protected information” remain excessively broad also under Revised Military Commission Order No. 1 of August 2005, which brought some improvement to the Military Order of March 2002 in this respect. However, by virtue of the Detainee Treatment Act of December 2005 a United States Court of Appeals now has jurisdiction to assess whether the commission provided the defendant a “full and fair trial”, and whether the admission of evidence the accused has not seen was compatible with his right to a fair trial. Nonetheless, the Chairperson of the Working Group and the Special Rapporteur remain highly concerned that the right adequately to prepare one’s defence is insufficiently protected in proceedings before military commissions.
37. The Chairperson of the Working Group and the Special Rapporteur are also concerned about the conditions under which information is obtained from detainees at Guantánamo Bay. They have been informed by former detainees that the power to mitigate the harsh conditions of detention is in the hands of interrogators and depends on the degree of “cooperation” with them. Detainees are subjected to regular interrogations and put under strong pressure to confess that they are members of Al-Qaeda and/or to incriminate other persons. The gathering of evidence in such conditions affects the credibility of any charges brought against them or against other persons.
38. The right to be tried without undue delay (ICCPR, art.14 (3) (c)) relates both to the time by which the trial should commence and the time by which it should end43. Out of a total of more than 500 detainees presently held at Guantánamo Bay, fewer than 10 have so far been referred to a military commission. The vast majority of the Guantánamo detainees have not been charged with an offence after several years of detention.44 As they continue to be detained, the detainees’ right to be tried without undue delay is being violated.
39. Concerning the right to a public hearing, the Military Order authorizes the court, for unspecified “national security” reasons, to conduct trials in secret.
40. Finally, the decisions of the military commissions were previously only reviewable by a panel appointed by the Secretary of Defense, with a final review being available to the President of the United States. The Detainee Treatment Act of December 2005 has given the United States Court of Appeals for the District of Columbia jurisdiction to determine the validity of any final decision rendered by a military commission. However, the scope of such review is very limited. The right to an appeal before an independent tribunal, enshrined in article 14 (5) of ICCPR, is consequently also severely restricted.
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “Lack of impartial investigation/impunity 56. As noted elsewhere in this report, detainees did not have access to judicial procedures for prolonged periods. Investigations into allegations of torture or CIDT were conducted by different parts of the executive branch,79 and lacked impartiality. No independent judicial investigation seems to have taken place into any allegations of torture or ill-treatment, a clear violation of international minimum standards. Consequently, no one was brought to justice for having committed acts of torture.80 It is of concern that there appear to have been attempts to ensure impunity for perpetrators of torture or ill-treatment.81 The Special Rapporteur takes the view that the lack of any independent investigation into the various allegations of torture and ill-treatement at Guantánamo Bay amount to a violation of the obligations of the United States under articles 12 and 13 of the Convention against Torture. He therefore agrees with the European Parliament’s call on the United States administration to “allow an impartial and independent investigation into allegations of torture and mistreatment for all persons deprived of their liberty in US custody”.82”
Suzanne Nossel, Senior Fellow at the Security and Peace Institute. “10 Reasons to Close Guantanamo”. Democracy Arsenal. June 12, 2005 – “To facilitate providing mandated legal protections – Now that the Administration has been required to afford broader due process rights to the Guantanamo population that continues to be held, this will be far easier to accomplish if the detainees are held in the U.S. where they can readily meet with their lawyers and appear in court as needed. There are also indications that greater openness and accessibility may result in improved conditions even when lawyers aren’t around.”
Dianne Feinstein. “Close Guantanamo now.” SFGate. July 30, 2007 – “On July 26, Lt. Col. Stephen E. Abraham testified on Capitol Hill that the Bush administration’s legal system at Guantanamo – used to determine which detainees should be held indefinitely as enemy combatants – relied on shaky evidence and pressured officers to rush hundreds of hearings.
This is profoundly damaging to the United States’ reputation around the world. And it buttresses my belief that President Bush should close the facility within a year, and come up with a process for transferring detainees and ensuring that they face justice.”
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS 17. The Chairperson of the Working Group on Arbitrary Detention17 and the Special Rapporteur on the independence of judges and lawyers are deeply concerned about the legal regime applied by the United States to the detainees in the Guantánamo Bay detention centre. In their view, the legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies. These include the right to challenge the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair trial by a competent, independent and impartial court of law (ICCPR, art. 14); they protect every person from arbitrary detention and unjust punishment and safeguard the presumption of innocence.”