Wednesday, August 19, 2015
by Deborah Popowski, Lecturer on Law and Clinical Instructor, Harvard Law School, guest contributor
On August 5th, the Inter-American Commission on Human Rights released a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.
Personal Integrity and Access to Justice
The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.
The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent.
The report also takes on the conditions that contribute to these grave health problems, including to prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo violates their right to humane treatment.
The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment.
An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.”
“A Prison for Foreign Muslim Men”
The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain.
The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews.
Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.