Draconian secrecy rules at Guantánamo compound the flagrant violations of international law by the USA

The ICJ, REDRESS and OMCT submit report to the UN Committee Against Torture in Geneva ahead of its 12-13 November session on the USA.

The United States has compounded far-reaching violations of international law by constructing an unprecedented system of secrecy around certain detainees, including the six who face capital charges in military trials at Guantánamo Bay, according to a report submitted by the ICJ, REDRESS and the World Organisation Against Torture (OMCT) to the UN Committee Against Torture.

The United States claims that a number of detainees held at Guantánamo Bay, whom it refers to as “High Value Detainees” or “HVDs”, are terrorist suspects of high intelligence value.

Each was captured or handed over to the US in the years following the 9/11 attacks, and was subjected to enforced disappearance and torture at CIA “black sites” for a number of years until moved to Guantánamo Bay in September 2006.

These individuals are now held in a separate facility within Guantánamo Bay, and are almost completely cut off from the outside world.

The report details how an elaborate regime of executive secrecy rules, Military Commission procedural rules, restrictions on lawyers and isolation of the individuals ensure that no information is released to the public about torture and other ill-treatment perpetrated against the detainees by US authorities, or the other States that were involved.

This wall of secrecy is maintained in part through a “Protective Order” issued by the Military Commission preventing the detainees’ own military commission lawyers from disclosing any information about the detainees’ treatment in CIA custody, including their own recollections about where they were held and details of the torture and ill-treatment to which they were subjected.

The report underscores that the secrecy regime “represents a deliberate system to ensure that no information about torture and other ill-treatment committed against the detainees will be released, to secure impunity for perpetrators of torture, and to ensure that no redress for those tortured is achieved.”

This results in an unequivocal violation of the rights guaranteed to victims of torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The report explains how the secrecy regime not only fatally undermines the fairness of the Military Commission trials, but also has served to obstruct not only inquiries in the US, but also investigations into allegations that some European countries were complicit in the CIA rendition programme.

REDRESS, one of the organisations behind the report, represents detainee Mustafa al-Hawsawi in proceedings in Europe concerning claims that he was held in secret detention in both Poland and Lithuania.

However, because of the secrecy regime at Guantánamo Bay, REDRESS has not been able to speak to Mr al-Hawsawi directly, or to obtain any information from him or his defense lawyers about where he was held or what was done to him. Instead, all work on the investigation has been limited to proceeding on the basis of information in the public domain.

“Some 13 years after the United States first embarked on its unlawful rendition and secret detention program, the United States has yet to hold any official to account for the crimes committed under it, nor has it provided any of its many victims with an effective remedy and reparation,” said Ian Seiderman, Legal and Policy Director of ICJ. “As the report shows, the failure to allow for a public accounting whereby the truth surrounding the programme is ventilated has had adverse consequences for the fair and effective administration of justice by the US, particularly in respect of the deeply flawed Military Commissions.”

Carla Ferstman, Director of REDRESS, said: “The United States has taken great measures to ensure that information about the serious human rights violations committed against these individuals during the time they were forcibly disappeared in CIA black sites is not revealed to the public. This not only perpetuates the original torture and ill-treatment, but leads to impunity, as it ensures that perpetrators cannot be investigated and prosecuted.”

Gerald Staberock, OMCT Secretary General, said: “A legal system established to prevent detainees and their advocates to speak about the treatment suffered is truly unprecedented. The rendition system was nothing else but a joint criminal enterprise. Destroying de facto the fundamental right to a remedy has nothing to do with legitimate secrecy grounds. It stays in the same logic of maintaining a legal system of impunity. This is not an issue of the past. It is about the present.”

The organizations have submitted the report in advance of the USA’s appearance before the Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 12-13 November in Geneva to face questioning about the extent to which they have complied with their obligations under the Convention Against Torture, which the USA ratified in 1994.

A copy of the report is available here


Ian Seiderman, ICJ Legal and Policy Director: t +41 22 979 3800 ; e: ian.seiderman(a)icj.org


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