Rule of Law Must be Respected in Relation to Detainees in Guantanamo Bay

The ICJ urges the US Government to clarify the legal basis of the detention of persons at Guantanamo bay and to abide by its international and national legal obligations.

It also urges the international community to consider an international tribunal for crimes against humanity.

The ICJ urges the United States to respect the rule of law in relation to persons detained in Guantanamo bay. It is a fundamental rule of human rights law and of due process that no-one may be detained unless pursuant to a valid law. At present the United States has not clarified the legal basis of such detention.

Detention is possible if the persons detained are prisoners of war, but the United States has refused such status to Taliban fighters even though, as members of the armed forces, they are entitled to it. Doubt as to whether Al Qaida fighters are entitled to such status are reasonable, and could justify brief detention with a view to their status being determined by a competent tribunal, as required by Article 5 of the Third Geneva Convention. However, at present this obligation and possible basis of detention do not appear to be respected.

If there is the intention to charge detainees with a crime, then the detainees should have been promptly charged with an offence, over which the US has jurisdiction, brought before a judicial authority, accorded the services of a lawyer and have the right to challenge the basis of detention under habeus corpus proceedings. These are obligations under the Covenant on Civil and Political Rights to which the US is a party, as well as rules of US due process law. It is important to note that both the Geneva Conventions and human rights law apply simultaneously.

In relation to any crimes alleged, prisoners of war may not be tried for merely fighting in the armed conflict, except for those actions that amount to war crimes. Unless a prisoner of war is charged with an international crime, or a crime over which the US has jurisdiction that is not mere participation in the armed conflict, prisoners of war must be voluntarily repatriated at the cessation of active hostilities.

Any trial must adhere to international due process standards. As indicated in a letter sent by the ICJ to President Bush on 5 December 2001, the ICJ had concerns about the military commissions proposed by President Bush and is waiting for details on their regulations.

Finally, thought should be given to the possibility of an international tribunal for international crimes committed. Apart from the fact that the attacks of 11 September may amount to crimes against humanity, it should also be kept in mind that the Taliban regime persecuted women to a degree that amounts to a crime against humanity.

Note: For further information, please contact: Louise Doswald-Beck on: +41(0)22 979-38-00

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