Towards the Closure of Guantanamo

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Chapter 3 Conditions of Detention | 49again, but to obtain information and gather intelligence on the Al-Qaida network.”In this regard, the report states that “the indefinite detention of prisoners of warand civilian internees for purposes of continued interrogation is inconsistent withthe provisions of the Geneva Conventions.” 7895. The UN Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, has reiterated that “all detentions that take place awayfrom 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 arhetorical “war on terror.”” 79 The Special Rapporteur finds that the U.S. practice ofholding detainees indefinitely if it is determined that they pose a significant threatto the security of the United States is a violation of the prohibition of torture and illtreatmentunder Article 7 of the ICCPR and CAT Articles 1 and 16, as well as ofrelevant provisions of the American Declaration, as incorporated in the Charter ofthe Organization of American States. 8096. Therefore, based on the above mentioned standards set by both internationalhuman rights law and international humanitarian law, the indefinite detention ofpersons still held at Guantanamo without charge after more than a decade, mainlyfor the purpose of obtaining intelligence, constitutes a serious violation of theirright to personal liberty guaranteed under Article I of the American Declaration.This persistence of prolonged and indefinite detention clearly goes beyond anexceptional and strictly necessary measure ordered for security reasons, and isarbitrary and unjust. Prisoners detained in the context of non-international armedconflicts may only be held for security reasons and they cannot, therefore, be heldindefinitely for purposes of interrogation. In this regard, the Inter-AmericanCommission emphatically reiterates the need to adopt concrete measures to end theindefinite detention of detainees at Guantanamo.787980UN Economic and Social Council, E/CN.4/2006/120, February 27, 2006, para. 23. Available at:http://www.refworld.org/docid/45377b0b0.htmlStatement of the United Nations Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, Juan E. Mendez, IACHR’s Expert Meeting on the situation of detainees held at theU.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013, p. 4.Statement of the United Nations Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, Juan E. Mendez, IACHR’s Expert Meeting on the situation of detainees held at theU.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013, p. 5.Inter-American Commission on Human Rights | IACHR
50 | Towards the Closure of GuantanamoB. Right to personal integrity97. The right of persons deprived of liberty to humane treatment while under thecustody of the State is a universally accepted norm in international law. 81 In itsReport on Terrorism and Human Rights the IACHR stated: 82Perhaps in no other area is there greater convergence between internationalhuman rights law and international humanitarian law than in the standards ofhumane treatment. While governed by distinct instruments, both regimesprovide for many of the same minimum and non-derogable requirementsdealing with the humane treatment of all persons held under the authority andcontrol of the state. Moreover, under both regimes the most egregiousviolations of humane treatment protections give rise not only to stateresponsibility, but also individual criminal responsibility on the part of theperpetrator and his or her superiors.98. The American Declaration contains several provisions that concern humanetreatment. First, the Commission has interpreted Article I of the Declaration (Rightto life, liberty and personal security) as containing a prohibition on the impositionof torture or cruel, inhuman or degrading treatment or punishment on personsunder any circumstances, similar to that under Article 5 of the AmericanConvention. 83 In addition, Articles XXV and XXVI of the Declaration refer to theright to humane treatment in the context of the rights to protection from arbitraryarrest and to due process of law, as follows:Article XXV. […] Every individual who has been deprived of his liberty […] hasthe right to humane treatment during the time he is in custody.Article XXVI. Every person accused of an offense has the right […] not toreceive cruel, infamous or unusual punishment.99. Further, the Principles and Best Practices on the Protection of Persons Deprived ofLiberty in the Americas are grounded on the fundamental idea that:All persons subject to the jurisdiction of any member State of the Organizationof American States shall be treated humanely, with unconditional respect fortheir inherent dignity, fundamental rights and guarantees, and strictly inaccordance with international human rights instruments.In particular, and taking into account the special position of the States asguarantors regarding persons deprived of liberty, their life and personal818283IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, OEA/Ser.L/V/II.Doc.64,December 31, 2011, para. 66.IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 11.IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 184.Organization of American States | OAS
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CHAPTER 6CONCLUSIONS ANDRECOMMENDAT
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Towards the Closure of Guantanamo

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