European Democratic Lawyers (EDL) statement on Guantanamo Bay and other detention centres


The European Democratic Lawyers (E.D.L.) is an association of labor unions and lawyers associations of six European countries. Among our statutory aims is the protection of the respect of the human rights and particularly of the right of defense.

On 18 June 2004, in Madrid, about 50 lawyers of our association (from Spain, Germany, Belgium, France and Italy) demonstrated in their robes in front of the Embassy of the United States and the President of the EDL managed to hand over a document to an official of the Embassy , where we clearly expressed our deep concern about the continuous violation of the rights of the prisoners jailed in prisons, bases and other detention centers in Guantánamo, Afghanistan and Iraq, mainly, described as "enemy combatants" and who remain deprived of all the fundamental rights recognised in International Treaties.

The document included the following: :

“… We are alarmed and indignant about the treatment received by the prisoners of war (POW) in several places of the world, specially at the Base of Guantánamo after the facts of the 11 September 2001 and up to now and by the cruel practices of bad treatments and tortures that have taken place, among others, in the Iraqian jail of Abu Ghraib, on the part of the North American military towards the prisoners, militaries or civilians, that had already been denounced by Amnesty International and by the International Red Cross since the middle of 2003 and that have recently been recognised, although diminished, in face of the appearance of incontestable graphical testimonies, by your own Government.

We cannot but, at least, mention the last report of Amnesty International, published the end of May of this year, in which accusations of extra judicial executions of Iraqian civilians, arbitrary detentions and generalized mistreat of the prisoners of Iraq, Guantánamo and Afghanistan have been gathered. Apparently, at least 37 prisoners passed away in prisons by violent causes and not sufficiently clarified and information of the Red Cross reveals that, at least 23 prisoners were shot.

The international laws and other norms establish that any arrested or detained person would have to receive immediate information on her rights and the reasons for the detention, including the right to count on the assistance of a lawyer; the right to communicate and to receive visits, the right to inform her family of the detention and place of imprisonment and the right of the foreigners to contact with their embassy or some international organisation. These rights are contained, Inter alia, in article 9 of the International Covenant on Civil and Political Rights (ICCPR), signed in New York on the 19 December 1966 and in the Body of Principles for the Protection of All People Under Any Form of Detention or Imprisonment, adopted by consensus by the United Nations General Assembly 1988.

These rights are important safeguards against arbitrary deprivation of liberty, which is a fundamental human right. Freedom from arbitrary arrest or unlawful detention includes the right to be brought promptly before a judicial authority; the right to review of detention within a reasonable time or to release; and the right to challenge detention before a competent authority:

Article 9(1) of the ICCPR stipulates that:

''1. Everyone has the right to freedom and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his freedom, except for the causes fixed by law and according to the procedure the law establishes”.

To ensure freedom from arbitrary detention, Article 9(4) further provides that 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.''

The Human Rights Committee has stated that Article 9(1) is applicable to all deprivations of liberty, including ''immigration control.''

Article 7 of the ICCPR establishes that ” no one shall be subjected to torture, pain or cruel, inhuman or degrading treatment”.

Similar rights and guarantees are recognised by the articles 5, 8, 9, 10 and 11 of the Universal Declaration on Human Rights, of 10 December 1948, articles 5, 7 and 8 of the American Convention on Human Rights and articles I, XVIII, XXV and XXVI of the American Declaration on the Human Rights and Duties.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 1984 defines torture as "any act by which serious pain or suffering, physical or mental, is deliberately inflicted to a person, with the purpose of obtaining from her or from a third information or a confession". The mentioned Convention adds that "in no case exceptional circumstances, such as state of war or threaten of war, internal political instability or any other public emergency, as a justification of torture might be invoked".

Equal prohibition of the torture is settled down in all the Conventions of Geneva. Thus, the Convention IV, approved on the 12 August 1949 and signed by the United States, prohibits specifically, in its article 3, violence against people, specially murder, cruel treatment and torture; taking of hostages, to humiliate and to give a degrading treatment to the prisoners which offends the dignity of the person. The same article establishes that wounded and ill prisoners must be delivered into the care of an impartial organisation, referring specifically to the International Committee of the Red Cross. Article 4 refers as people protected by this Convention, those who are in a conflict or submitted to an occupation by a foreign force.

The Convention establishes that the occupant power must inform the prisoners in writing and in a language that they can understand, of the accusations against them. Those who are sued must have all their rights, including the one to a fair trial. The Convention also stipulates the right of organisations such as the I.C.R.C. to visit the prisoners. It also establishes the right of the prisoners to send and to receive mail of their families and the right of the families to know their situation and the place where they are.

All these fundamental rights are violated on the part of the United States.

In Guantánamo prisoners are held under sensory deprivation, ears and eyes covered, hands and feet tied, hands in thick gloves, held in cages without any privacy, always observed, light day and night: This is called white torture.

The Tipton Three, released in March 2004, have been prisoners in Guantánamo Bay. On March 14, 2004 they described in an interview with David Rose published in the Guardian how they have been held about two years in Camp Delta after some months in a detention camp in Kandahar. Handed over to the Americans with the apparent agreement of British officials.

Month after month they were interrogated, for 12 hours or more at a time, by American security agencies and repeatedly by MI5, about 200 sessions each, being on their knees, in chains, always at gunpoint, often kicked or beaten.

They affirmed not to have been members of the Talibans, of Al Qaeda or any other armed group. The troops of the North Alliance received for each person they handed over, supposedly member of the Talibans, $5,000 $ and for each member of "Al Qaeda", $20, 000.

Until today hundreds of prisoners are still imprisoned without accusation and without access to a lawyer.

The provided trials in military courts with judges, public prosecutors and lawyers selected by Rumsfeld, without international nor public observers, also breaks the international laws.

Amnesty International and other of Human Rights organisations had no access to these trials.

With the argument of the war against terrorism, the United States of America try to justify all these measures. Supposing there even was a war, we would also be before a case of violation of the Convention of Geneva and other international treaties ratified by the United States.

Reading the detailed Taguba Report on the conditions of the prisoners in Iraq is specially disquieting for any jurist. The fact that a team of “interrogatory technicians” that had been acting for more than a year in Guantánamo was sent to Iraq, that General Geoffrey Miller, who had been responsible for Guantánamo during eighteen months, was named responsible for the prisons in Iraq, the existence of bad treatments not only in the prison of Abu Ghraib, but also in those from Camp Bucca, Camp Whitehorse, Qaim, Samarra and Camp Cropper, make suspect that such practices have not been isolated nor the result of the particular initiative of some military, but that they have constituted a generalised and supported or, at least, an allowed practice, from the highest levels of authority.

Thus, it is evident that the humiliations and tortures were used, following instructions of the military "Intelligence", to "soften up" the prisoners for the interrogatories, in which even employees of private security companies have participated, in an absolutely irregular practice.

The appearance of reports with twenty techniques of " physical and psychological pressure " already used previously in Guantánamo, as the deprivation of sleep and others, and the appearance of a "draft" of a confidential report, of 6 March last year, in which at least the possibility was raised, that the President would have legal power to allow torture practices, demand a deep investigation and should not only be limited to the military of very low rank, with merely symbolic punishment, as it has been happening until now.

On the other hand, the release of hundreds of prisoners since the outbreak of the scandal by the publication of photographs of the tortures has shown
that, without a doubt, such prisoners, who have been set free in a collective way and without serving any prison sentence, had been arbitrarily imprisoned, then, otherwise, they would not have been released now.

Finally, the only certain possibility of guarantying that the forces of the United States, according to what is stated in the letter of the Secretary of State, Collin Powell, that appears as an annex to the last Resolution of the United Nations, are truly "compromised to act in accordance with their obligations according to the right of the armed conflicts, including those of the Convention of Geneva" is that the United States signs, at last, the Treaty of the International Penal Court, accepting its competence and jurisdiction.

Therefore we demand from the Government of the United States the adoption of the following measures:

§ Provide in full the information on all the prisoners, as established by the F.O.I.A. (Freedom of lnformation Act); make public information on the number and nationalities of those still detained; the reasons for their detention; the date and place of arrest; date, charges and place of detention; provide information on the numbers and nationalities of those deported or removed under voluntary departure arrangements and the countries to which they have been returned.

§ Ensure that all the people imprisoned in Guantánamo, in federal custody, including those held in local or county jails or other countries under American control, are treated humanely in accordance with international standards and that no one is subjected to torture or other cruel, inhuman or degrading treatment. The Department of Justice should fully investigate all allegations of ill treatment of detainees or prisoners and take appropriate action in the case of those found guilty of misconduct.

§ In such sense, it is indispensable that all the people who have committed, induced, ordered, participated or allowed those practices of bad treatments and generalised tortures, assume their responsibility, in the judicial sense as well as politically. Impunity before these cruel and degrading behavior, can not be accepted from a government and a society that call to be democratic and that respect freedom and the human rights.

§ Ensure respect for the rights of everyone arrested or detained as set out under international standards, including Article 9 of the ICCPR and the Body of Principles. Such rights include the right to be informed of the reasons for arrest and to be given prompt access to attorneys and relatives and consular officials or representatives of relevant international organisations as requested.

§ Ensure that all detained people are provided with written notification of their rights as guaranteed by international standards and US law, in a language they understand.

§ Ensure that all arrested or detained people are brought promptly before a judge and have access to the courts and a procedure in which they may challenge the lawfulness of their detention.

§ Indemnify those people who have been arbitrarily arrested or have been tortured.

§ To assure that the asylum applicants are not systematically arrested and that their request is attended in a fair and complete way, according to the Convention of the Refugees of 1951 and the Protocol of 1967 .

§ Access to the High Commissioner of the United Nations for the Refugees should also be granted to all the asylum applicants and arrested refugees.

§ To transfer to the provisional governments of Afghanistan and Iraq all the authority on the prisoners in those countries, under strict supervision of the United Nations.

§ To withdraw the declarations and reserves formulated by the United States to the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment.

§ To sign and ratify the Treaty of the International Penal Court, accepting its jurisdiction and competition on citizens of the United States”
.

Please contact us, should you have any questions or wish to have more information.

Yours faithfully,

Wolfgang Kaleck
EDL Secretary General


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