Statement of the United Nations Special Rapporteur on torture at the Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay

Inter-American Commission on Human Rights

Washington DC, 3 October 2013

Statement of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, Juan E. Mendez
Delivered by Ms. Stephanie Selg, Associate Human Rights Expert, Office of the High Commissioner for Human Rights (OHCHR)

The Special Rapporteur would like to thank the Inter-American Commission on Human Rights for inviting him to this distinguished expert consultation on the situation of detainees held at Guantanamo Bay. He conveys his deepest regrets for not being able to be here today due to other commitments, but appreciates the possibility to have his statement delivered on his behalf and to support a successful outcome from this expert meeting.

The mandate of the Special Rapporteur on torture operates under the umbrella of the Human Rights Council, together with the other UN Special Procedures mechanisms. The situation in Guantanamo Bay, including the practice of torture, indefinite detention and the lack of accountability for State’s actions or their complicity in counter terrorism measures that have violated human rights is a cross-cutting issue.  The Special Rapporteur on torture works in close coordination with other experts such as the United Nations Working Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and with UN treaty bodies such as the Committee Against Torture and the Subcommittee on Prevention of Torture.

Under the rubric of fighting the war on terror States have, regrettably, attempted to dilute cardinal principles necessary to preventing and suppressing torture and ill-treatment or have become complicit in acts of torture. During the past decade in particular, there has been a rise in the use of torture or ill-treatment and increase in the practice of indefinite detention,   largely due to the extraction of intelligence information in the context of the global fight against terrorism and the deliberate undermining of the absolute prohibition of torture.

In this context, the mandate has reiterated on various occasions the need to adopt concrete measures to end the indefinite detention of persons; provide for their release or prosecution, in accordance with due process and the principles and standards of international human rights law; allow for independent monitoring by international human rights bodies; and close the detention centre at the Guantánamo Naval Base.

In 2004, the US government granted the Special Rapporteur's predecessor, Manfred Nowak, and three other mandate-holders, access to the Guantanamo Bay facilities, but the previous Administration imposed conditions that the UN mandate-holders could not accept. Early in his tenure, which began on 1 November 2010, the current Special Rapporteur formally requested the US government for permission to visit Guantanamo Bay, a petition that has been renewed on several occasions since then.

In February 2012, the US government extended an invitation to the Special Rapporteur to visit certain parts but not all of the detention facility. The invitation explicitly excluded the possibility of conducting private, unmonitored interviews or indeed any meetings with detainees. The Special Rapporteur strongly believes that maintaining the principle of unfettered access to detainees is an important part of his responsibility as a UN independent expert. Conditions such as those mentioned impair the ability of UN experts to conduct credible enquiries into allegations of torture and ill-treatment when independent experts visit places of detention and detainees. The Special Rapporteur declined the invitation and has again, on 15 May 2013, formally requested the US government to reconsider the terms and to enable the Special Rapporteur to conduct a visit that includes every part of the detention facility and unmonitored private interviews with detainees.

Besides the on-going negotiations regarding the terms of reference for an official visit to Guantanamo Bay, the government has invited the Special Rapporteur to observe hearings before the military commission. The Special Rapporteur is planning to attend a hearing related to issues covered by his mandate in the upcoming months.

Indefinite detention

Under human rights law, people deprived of their liberty must be treated with humanity and with respect for their inherent dignity. As a general rule the Special Rapporteur finds that where the physical conditions and the prison regime fail to respect the inherent dignity of the human person and cause severe mental and physical pain or suffering, it amounts to cruel, inhuman or degrading treatment or punishment. With respect to indefinite detention of detainees the mandate finds that the greater the uncertainty regarding the length of time, the greater the risk of serious mental pain and suffering to the inmate that may constitute cruel, inhuman or degrading treatment or punishment or even torture.

With regard to the situation of detainees at Guantanamo Bay, the Special Rapporteur expresses his deep disappointment that the US government has not closed Guantanamo Bay, despite repeatedly committing itself to do so. Allegedly, around half of the detainees still being held in detention have been cleared for transfer to either home countries or third countries for resettlement. Yet they remain indefinitely in detention at Guantanamo Bay.

Others, reportedly, have been designated for further indefinite detention. Some of them have been held in this detention centre for more than a decade, even though they have yet to be found guilty of any crime by a court of law. The regime applied at Guantanamo Bay neither allows the guilty to be condemned nor secures that the innocent be released.  This opens the door for serious human rights violations. It severely undermines the United States’ stance that it is an upholder of human rights, and weakens its position when addressing human rights violations elsewhere.

On various occasions and most recently on 1 May 2013 the Special Rapporteur publicly declared that at Guantánamo, the indefinite detention of individuals, most of whom have not been charged, goes far beyond a minimally reasonable period of time and causes a state of suffering, stress, fear and anxiety, which in itself constitutes a form of cruel, inhuman, and degrading treatment. The Special Rapporteur expressed his concerns about the severe physical and psychological damage caused by the detainees’ high degree of uncertainty over basic aspects of their lives, such as not knowing whether they will be tried or whether they will be released or when; or whether they will see their family members again. In this context, the Special Rapporteur supports the Inter-American Commission’s findings that this 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.

The Special Rapporteur, as do the High Commissioner for Human Rights and the Inter-American Commission on Human Rights,   finds that the continuing and indefinite detention of individuals, without the right to due process, is arbitrary and constitutes a clear violation of international law. This situation is particularly clear with respect to those prisoners who have been cleared for transfer by the government, which means that all relevant security-related government agencies or authorities have expressly certified that those detainees do not represent a threat to U.S. security.

The Special Rapporteur expressed concern over Executive Order 13277, titled “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force”. It installed a periodic review system of Guantanamo Bay detainees which made it effectively possible for the US government to keep inmates detained indefinitely if it determined that they pose a significant threat to the security of the United States.  Such a determination is a unilateral act of the Executive Branch that is adopted without a hearing and without other due process safeguards.  On 31 December 2011, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012 (NDAA), of which section 1021 and 1022 deal with the detention of people suspected of terrorist activities. It specifically notes that the government assumes its authority to detain individuals without trial until the end of hostilities authorized by the Authorization for Use of Military Force.

Both the Executive Order and NDAA effectively allow the US government to hold persons suspected of terrorist activities in United States detention centres indefinitely, without establishing their individual culpability in any crime. In this context, the Special Rapporteur welcomes the introduction of the writ of habeas corpus in the National Defense Authorization Act of 2013 -- which had already been established by the US Supreme Court --, together with some other safeguards. He has, however, expressed his deep disappointment over the failure of the National Defense Authorization Act of 2013 to effectively erase the possibility of indefinite detention

Moreover, the Special Rapporteur is also concerned over the obstacles created by this Act for the closure of the detention facility as well as for the trial of detainees in civilian courts, where warranted, or for their release. The Act was signed into law by President Obama on 3 January 2013 despite previous threats to veto its renewal. The Special Rapporteur maintains that the US government has an obligation under international human rights law to ensure that individuals deprived of their liberty can have the lawfulness of their detention reviewed before a court and that those Guantanamo detainees who are accused of crimes  be tried in civilian courts. The Special Rapporteur finds that the military commissions – even after legislative amendments were introduced in the Military Commissions Act of   2009 – simply maintain a substandard system of justice and do not meet international fair trial standards .

Indefinite detention until the end of hostilities is, of course, permissible under the law of armed conflict.  But all detentions that take place away from the field of battle should be covered by the international law of human rights -- which prohibits prolonged arbitrary detention -- even if they are carried out under a rhetorical "war on terror."

This is in line with the recommendation of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism following his 2007 country visit to the United States . He urged the US government to ensure that all detainees are held in accordance with international human rights standards, including that any form of detention is subject to accessible and effective court review, which entails the possibility of release. In addition, the recommendations made by the Human Rights Council to the US government during the Universal Periodic Review called on the authorities to ensure that all remaining detainees be tried without delay in accordance with international law or be released .

In this context, the Special Rapporteur would like to make reference to a joint report on the situation of detainees at Guantanamo Bay from 2006, which although dated, contains many conclusions and recommendations that are regrettably still relevant due to a lack of implementation by the government, in particular with regard to impunity of officials regarding acts of torture under the previous Administration . In  paragraph 23 the report explicitly states that the indefinite detention of prisoners of war and civilian internees for purposes of continued interrogation is inconsistent with the provisions of the Geneva Conventions (Third Geneva Convention, art. 17 (3), and Fourth Geneva Convention art. 31).

On 30 November 2012, the Special Rapporteur along with other concerned mandate holders   sent a communication to the US and the UK governments regarding the case of a British resident held by the Northern Alliance forces in Afghanistan and later transferred to the detention facility at Guantanamo Bay.  The communication referred to article 9(3) of the ICCPR, which states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”; and to article 9(4) of the ICCPR, which states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” Regarding the fact that the detainee has been reportedly cleared for release from Guantanamo Bay since 2007 by the US authorities but is still being detained, the mandate holders referred to article 2 (3) of the ICCPR, which states:  “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.”

In its reply of 28 February 2013 the government of the United Kingdom stated that it believes that indefinite detention in Guantanamo Bay is wrong and will continue to call for Guantanamo Bay to be closed.

The Special Rapporteur finds that the US practice to hold detainees indefinitely if it is determined that they pose a significant threat to the security of the United States is a violation of the prohibition of torture and ill-treatment under article 7 ICCPR and article 1 and 16 CAT, as well as of relevant provisions of the American Declaration of the Rights and Duties of Man, incorporated into the Charter of the Organization of American States.

Hunger strike and forced feeding

The practice of indefinite detention at Guantanamo Bay has resulted in severe mental anguish and physical demise of the detainees that can only be defined as cruel and inhuman treatment and punishment. As mentioned, the Special Rapporteur on torture has repeatedly called  upon the government of the United States of America to respect and guarantee the life, health and personal integrity of detainees at the Guantánamo Naval Base, particularly also in the context of the hunger strike that began in the early Spring 2013.

Beginning in February 2013 a large group of detainees at the Guantánamo Naval Base carried out a hunger strike to protest their state of indefinite detention and the treatment they receive from authorities at the prison.  The strike also focused attention on the government's policy of force-feeding detainees.

With regard to the hunger strike in Guantanamo Bay as well as the most recent hunger strike across a number of California prisons, the Special Rapporteur has reminded the authorities that “it is not acceptable to use threats of force feeding or other types of physical or psychological coercion against individuals who have opted for the extreme recourse of a hunger strike.”

The mandate has received information about the painful and humiliating procedure of forced feeding at Guantanamo Bay, which involve detainees being strapped to a chair while a feeding tube is roughly inserted through the nose into the stomach and roughly extracted. In addition, detainees reportedly remain strapped to the chair for several hours afterwards, in an attempt to prevent them from regurgitating the food.

In this context, the Special Rapporteur fully supports the findings of Inter-American Commission and of the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.  They state that, according to the World Medical Assembly’s Declaration of Malta, in cases involving people on hunger strikes the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

The Special Rapporteur does not believe that the prison authorities should let inmates starve to death.  He insists, rather, that the authorities have a duty to look for other solutions to the crisis created by the hunger strike, including good faith dialogue with the inmates about their grievances.

Conclusion:

Therefore, the Special Rapporteur considers the practice of indefinite detention, other conditions applied to them such as solitary confinement, as well as the use of force feeding as forms of ill-treatment that in some cases can amount to torture.

He recalls that torture is unacceptable and abhorrent from a moral and legal perspective, and that its prohibition is absolute and non-derogable. Torture exists at the far end of a continuum of maltreatment and lesser forms of ill-treatment are often a gateway to torture.  This is why the international law prohibition and its absolute nature are equally applicable to torture and to all forms of cruel, inhuman or degrading treatment or punishment. States cannot limit the application of this prohibition under their domestic law for reasons of public emergencies, anti-terrorism measures or in the context of armed conflicts. 

The Special Rapporteur welcomed President Obama’s announcement on 23 May 2013 that he was placing a high priority on closing Guantanamo during his second term in office. The President called on Congress to lift restrictions on transferring detainees to other countries. On 26 July 2013   the President’s Press Secretary reiterated the government’s commitment to transfer detainees and to close Guantanamo Bay. 

However, the human rights violations continue, and the Special Rapporteur   continues to urge the United States of the America to: (a) adopt all legislative, administrative, judicial, and any other types of measures necessary to prosecute, with full respect for the right to due process, the individuals being held at Guantánamo Naval Base or, where appropriate, to provide for their immediate release or transfer to a third country, in accordance with international law; (b) expedite the process of release and transfer of those detainees who have been certified for release by the government itself; (c) conduct a serious, independent, and impartial investigation into the acts of forced feeding of inmates on hunger strike and the alleged violence being used in those procedures; (d) allow the IACHR and the United Nations Human Rights Council mechanisms, such as the Working Group and the UN Special Rapporteurs, to conduct monitoring visits to the Guantánamo detention centre under conditions in which they can freely move about the installations and meet privately with the prisoners and without witnesses or surveillance; and (e) take concrete, decisive steps towards closing the detention centre at the Guantánamo Naval Base once and for all.

All relevant mechanisms and actors must continue to engage the United States and demand that the government state clearly and unequivocally what specific measures it will implement toward the closure of Guantanamo Bay and ensure that nothing similar is ever put in place.

END OF STATEMENT