Human rights violations and violations of the international judicial princples in Guantanamo

Not only must the recent FBI-revelations about the torture of prisoners in Guantanamo be seen in the light of the already well-known facts about their treatment, there is also a close connection with the official denying of their elementary human rights, due the refusal of the American government to give them a judicial status according to the principles of International Law.

Introduction:

Composition of the prisoners:

At Guantanamo there are currently more than 660 prisoners, from which the largest group consists of soldiers and fighters, who have been captured in the war on Afghanistan and Iraq and a smaller group is being composed of people from different countries over the world, who have been arrested on suspicion of terrorism.
However in this respect it is striking, that both groups are being considered as ''terrorists'' by the American governmental authorities, without making any distinction between the circumstamces of their imprisonment [ arrestations during military operations during the war or indivdual arrestations in different countries] and the lack of hard evidence.

A Judicial status of the prisoners:

1 Judicial position of the group of soldiers and fighters, who were arrested during military operations during the war:

Violations of human rights:

The first transports of Taliban soldiers and Al-Qaeda-fighters to Guantanamo, which were started in januari 2002, were being characterized by serious violations of human rights.
Not only were the prisoners being chained to each other, they also had goggles on their eyes and ear-muffs, which by the thus provoked disorientation-problems can lead to serious psychic problems.
Also their detention-circumstances at Guantanamo are grave violations of human rights in respect with the international obligation concerning the humane treatment of prisoners.
Since their arrival at Guantanamo they are being locked up in cages, which is not only humiliating towards the prisoners regarding the character of the detention-facility, but can moreover lead to serious health problems, since the prisoners are being exposed to the changing climate-circumstances.

Judicial status:

More serious however for the rights-position of the prisoners was the definition of their judicial status by the American government or better said, the lack of their judicial status.
The American government namely considered the group Guantanamo-prisoners, who were consisting of in the war on Afghanistan and Iraq imprisoned soldiers and fighters, not as prisoners of war, but as so-called "'enemy-combatants''
According to this by the government given definition, this group could not given the status of prisoner of war, thus lacking the protectional rights of the 3th Geneva Convention relative on the treatment of prisoners of war.

Concerning the principles of the 3th Geneva Convention all prisoners of war should be released after the ending of the war unless they are being persecuted for war-crimes in which case a trial must be started within a legally-bound time-period and according to the international-judicial principles.
In case of doubt concerning the legal status of prisoner of war, according to the rules of the 3th Convention of Geneva, a tribunal must be formed in order to determine the legal status of the prisoners involved, which however never is done by the American governmental authorities concerning the Guantanamo-prisoners.
However, even when some prisoners have no right on the legal status as prisoner of war, the principles of the 4th Geneva Conventions are appliable to them, which is in humanitarian-judicial sense largerly equal to the basic-principles of the 3th Geneva Convention concerning a humane treatment and a fair trial.

It is hereby evident, that the detention without trial as well the already referred inhumane and humiliating treatment, to which they were subjected from the moment of their arrival [respective in 2002 and 2003] are strictly forbidden not only by the already referred Geneva Conventions, but by all international human rights treaties.

2 The judicial position of prisoners from different parts of the world

Although it is evident, that concerning the arrestations of prisoners of other parts in the world, who are suspected of real or alleged terrorism, the status of prisoners of war cannot be applied, it is clear that their detention without trial as well as the mostly inhuman and humiliating treatment is in all circumstances contary with the international judicial rules.
Therefore it is obvious, that they have the same rights as any other suspect of a crime on judicial protection, a fair trial and a humane treatment under all circumstances.

Therefore it is evident, that the implicite point of view of the American government, that there are different law-standards concerning real or alleged ''terrorists'' than for other crime-suspects,
is a grave breach of the international-judicial equality principle and will lead to a serious erosion of the international-judicial standards as such.

B International protests

It is evident, that the detention-circumstances in Guantanamo as well as the very controversial law-position of the prisoners have led to considerable international protests, in the first instance by international human rights organisations like Amnesty International and Human Rights Watch, but also by the usually less outspoken Red Cross.

Further serious protests were uttered by a great number of organisations like the Inter-American commission on Human Rights, various UN-bodies and other international agencies as well as judicial institutions.
For example a British appeals court stated that the detentions contravened fundamental principles of international law and referred to Guantanamo as a ''legal black-hole''
Also serious protests were uttered by as well Arabic and Third-World politicians as European politicians.

Moreover, grave criticism was especially uttered against the presence of an undisclosed number of children aged sixteen and seventeen, who are held in the adult camp, rather than separately as required by international standards.
Yet apart from the inhumane detention-circumstances, this is a grave violation of the also by the USA rafitied Optional Protocol on Child Soldiers, which requires special legal obligations including rehabilitation and reintegration of child combatants into their societies, which is of course impossible in a detention-camp like Guantanamo-Bay, half a world away from their homes and families.
As named already, the detainees aged sixteen and eighteen have also not received the special protections required by international standards, incliding separation from adult prisoners.
The American government should resolve the cases of all he children held at Guantanamo without delay.
In adittion, the ICRC [the Red Cross] has also stated, that it doesn't consider Guantanamo an appropriate place to detain juveniles.

C Military tribunals:

In this respect it is of great importance to pay attention to the by the American government initiated military tribunals for the prosecution and trial of the Guantanamo-prisoners.
This is based on a by the American president Bush undersigned military order dd 13-11 2001concerning the detention, treatment and trial of non-American citizens, who are being suspected of terrorism.
Not only is the legal basis for the military tribunals as such highly dubious, also a number of the by the military tribunals applied rules are higly contrary with the rights of the defendants.

1 Dubious legal basis:

Yet apart from the fact, that the American government, despite of the international-judicial obligation concerning the 3th Geneva Convention, has never determined the official status of prisoners of war in the case of the Guantanamo-prisoners, the thus determined prisoners of war can only be persecuted by an official American military Court, based on the principles of the American military law-system [the Uniform Code of Military Justice]
Moerover, in the case of prisoners of war, prosecution is also only possible in the case of war-crimes, genocide and crimes against humanity.
The only group, which can possibly be prosecuted before a tribunal are the socalled ''non-acknowledged fighters'' in whic case however it is evident, that the international-judicial rights concerning the rights of the defendants must be applied.

2 Violations of the rights of the defendants:

However, considering this not only all prisoners, regardless of their legal status, are being prosecured by the military tribunals, also the very regulations of the military tribunals are serious violations of the rights of the defendants on a fair trial.

a The limitation of the defendant's rights on a lawyer

In the first place, according to the rules of the military tribunals, every defendant is being represented by an assigned miliraey defense counsel.
Although the defendant also has the right to choose his own lawyer, the costs are to be payed by himself.
Since most defendants have no adequate financial means at their disposal, this means de facto a limitation on the defendant's elementary rights to choose his own lawyer.

b Discriminative rules

In the second place the establishment of the military tribunals leads to evident discrimination between American and non-American citizens, since American citizens are not allowed to be prosecuted by the military tribunals, regardless their possible status as ''non acknowledged fighter'' [as being already commented a legitimate condition for prosecution by a military tribunal]
This implies discrimination between American and non-American citizens, resulting in lower due process standards towards non-American citizens, which is contrarily with the international-judicial principle of equality.

c The prosecution by the military tribunals of non-American citizens, who are living in the USA

Not only the use of the military tribunals is leading to an unequal treatment between American and non-American citizens, who are entitled to the same category of defendants [non-acknowledged fighters, who are involved with a military conflict with the USA], moreover the very application of the rules of the military tribunals form also a treath to non-American citizens, who live in the USA and whose involvement in any armed conflict as such is very doubtful.
So it is possible that a non-American citizen without any military involvement in the conflict is being tried by a military tribunal for the crime ''aiding the enemy'' if he ever send funds to al-Qaeda without being prosecuted in a regular criminal court.

d The exclusion of evidence and closed tribunal sessions

Also the military tribunals can exclude the defendant from classified evidence and closed tribunal sessions, though his attorney has access, which is not only a violation of his right to an optimal defendance, but is also contrarily with the American military judicial system [the Uniform Code of Military Justice] by which the accused at a Court Martial does have the right to be present when witnesses testify or evidence is introduced.

e The absence of the right to appeal to a civilian court

However, one of the worst violations of the rights of the defendant is the lack of the possibility for an appeal to an independent civilian court, which is not only contrarily with the international-judicial principles of the rights of defendants, but also contrarily with the American military legislation in a Court Martial [the Uniform Code of Military Justice] which provides an appeal to a civilian court.
The referred cases are reviewed by a military review panel, which is appointed by the Secretary of Defense.
Final review of the case rests only with either the Sectretary of Defense or the American president, who are the very governmental authorities, who installed the military tribunals.
It is evident, that those review-possibilities exclude an independent review of the cases.

f Lack of elementary judicial knowledge

Almost as serious as the already named violations of the rights of the defendants is the obvious lack of judicial knowledge of the most tribunal-members as well as the fact, that their judicially-obliged impartiality regarding the suspects is highly doubtful.
In the first place only the presiding-officer of the five-person tribunal has a legal education, which can imply, that the other members have a lack of basic-judicial knowledge, including the principles of the law of war and criminal justice.
This fundamental lack of knowledge showed itself as well at the start of the tribunal-trial at 24-8-2004 against four defendants as in the case against the Australian citizen Hicks, which is evidently a grave violation of the defendants right on international-fair trial-standards.
In the second place their judicially obliged objectivity and impartiality regarding the defendants is highly doubtful since several tribunal-members were involved in intelligence or combat-responsibilities in the war on Afghanistan.
It is evident that this is a serious violation of the international-judicial principle of the impartiality of the Court regarding the defendants of any crime, which has also been comfirmed in the Universal Declaration of Human Rights, article 10.

The case against Hicks:

The above referred lack of judicial knowledge showed itself again during the first hearing against David Hicks, a 29 year old Australian, who has been held at Guantanamo for more than two and a half years, often in solitary confinement.
Hicks, who was turned over by US-custody by Northern Alliance forces in Afghanistan in late 2001, has been charged with conspiracy to commit war crimes, attempted murder and aiding the enemy.
During the hearing it became obvious that two of the three tribunal-members, who had no legal training at all, had difficulty understanding the basic principles of the law of war or criminal justice, with as a consequence, that during the hearing many omissions were made regarding the judicial procedure, as being concluded by a legally-trained observer of the international human rights organisation Human Rights Watch.
Also the objections of the defense team of Hicks regarding the fact, that the tribunal was not complete, because there were only three members instead of the required five members [the two other members, who had been removed fot potential bias were not replaced by others] were rejected.
As a consequence of the course of this first hearing, the lawyers of Hicks asked for a posponement of the trial from january untill march 15.
It is obvious that the judgement of the case of Hicks by judges who are unfamiliar with the basic-principles of the law is a very grave violation of his right on an impartial and competent Court.

D The military tribinals versus the American law-system:

However, it is important to learn, that due to a number of verdicts by American federal judges, the lack of fair trial protections, stemming from the character of the military tribunals, has been partly limited.
So recently one of the former rules of the military tribunals, which permitted the monitoring by the military of the international-acknowledged confidential conversations between the defendant and his lawyer, has been forbidden.
However, one of the most important verdict by an American federal Court regarding those military tribunals is the recent ruling of the Federal District Court of Columbia dd 8-11 in the case against Salim Ahmed Hamdan, who is accused of being Osama bin Laden's driver.
The federal Court ruled that Hamdan must be treated as a prisoner of war unless and untill a competent tribunal determines otherwise, which has as already commented, systematically refused by the American government.
As a prisoner of war, he may only be tried by Court-martial under the Uniform Code of Military Justice and not by a military tribunal.
The Court also ruled that the military tribunals could not proceed untill their rules were changed to permit Hamdan access to all tribunal sessions and evidence against him.
The rules now permit the tribunals to exclude the accused from classified evidence and closed tribunal sessions, although his attorney has access.
However, under the Uniform Code of Military Justice, the accused at a Court-martial does have the right to be present when witnesses testify or evidence is introduced.

E Permanent detention

Although this recent Federal Court-ruling is a great step towards a fair treatment of the Guantanamo-prisoners according to the international-judicial principles, perhaps on reaction to this ruling the American government is considering to take measures for the possible lifetime detention of Guantanamo-detainees against who are not enough evidence to charge in Court.

In this respect the Defence Department is planning to build a permanent prison for 200 detainees, who are unlikely to ever go through a military tribunal for lack of evidence.
The argument of the American government for the planned measure, that the referred detainees would possibly form a terroristic treath after their release, makes of course no sense at all, because it is referring to not yet [and possibly never] committed criminal facts, which is a grave violation of the most elementary principles of International Law.
More seriously however is the fact, that an official American governmental decision regarding possible lifetime detention of detainees without any trial is not only one of the most serious fundamental violations of the international-judicial rights rules, moreover those kind of measures are mostly applied by non-democratical regimes.

2 Comparison with nazi-methods:

In this respect I agree fully with the remark, made by the Dutch criminal Law Professor Ruter, that those planned American governmental measures resemble strong similarities with the former nazi-methods, by which also prisoners were detained without any form of trial.

3 The role of the European allies:

Prof Ruter also pointed out the fact, that the Dutch government should refuse to further deliver crime suspects to the USA as a sign of lack of distrust in the American judicial system, which I fully agree with.
Moreover, since the American governmental autorities apparently have no intention to respect their internationally-judicial obligations, it is of the greatest importance that besides the Netherlands, also the other European allies take appropriate measures against the American government untill the international humanitarian rules are being applied again.
When the European allies are continuing to give only verbal criticism on the Guantanamo practices without taking political consequences, they not only show a great hypocriticism by allegedly defending ''western moral values'', but they are also morally co-responsible for the continiued erosion of the American judicial system.

Astrid Essed
Amsterdam
The Netherlands