Towards the Closure of Guantanamo

92 | Towards the Closure of Guantanamo217. Further, the military commission system has proven to be slow and inefficient. Aswill be addressed in the following chapter, 13 years after the U.S. Governmentopened the detention facility at Guantanamo Bay, only eight detainees have beenconvicted by a military commission, and two of those convictions were overturnedon appeal. In the case of Khalid Sheikh Mohammed, the alleged mastermind of theSeptember 11, 2001 attacks, it took about 11 years for the prosecution to bringcharges against him. In contrast, the proceedings against Sulaiman Abu Ghaith infederal court in New York took one year from extradition to sentencing. Inaddition, there is no certainty as to which cases the prosecution can and cannotbring before the military commissions, given that the courts have not yet resolvedthe viability of charging conspiracy as a stand-alone offense.218. The American Declaration establishes that every person has the right to seekrecourse before the courts, to protection from arbitrary arrest, and to dueprocess. 252 These rights are part of the core due process guarantees, and constitutethe minimum guarantees recognized for all human beings in any type of judicialproceeding. 253 In this regard, the jurisprudence of the IACHR has established thatthe principle of the “natural judge” is a fundamental guarantee of due process. 254219. The right to be tried by a competent, independent and impartial tribunal previouslyestablished by law has been interpreted by the Commission and the Inter-AmericanCourt as including certain conditions and standards that must be satisfied bytribunals charged with adjudicating any accusation of a criminal nature. 255 Further,the domestic guarantees must be in conformity with applicable internationalstandards and cannot be suspended under either international human rights law orinternational humanitarian law. This protection applies to the investigation,prosecution and punishment of crimes, including those relating to terrorism,regardless of whether such initiatives may be taken in times of peace or times ofnational emergency, including armed conflict. 256220. When the military commissions at Guantanamo exercise jurisdiction over a matterthat federal courts should and could hear, there is a violation of the individuals’right to be tried by a competent, independent and impartial tribunal previouslyestablished by law and, a fortiori, of their right to due process. The right to dueprocess is, in turn, intimately linked to the very right of access to the courts. 257 In itsconcluding observations on the fourth periodic report of the United States, theHuman Rights Committee requested the State to “ensure that any criminal casesagainst detainees held in Guantanamo […] are dealt with through the criminal252253254255256257American Declaration, Articles XVIII, XXV, and XXVI.IACHR, 2011 Annual Report, Chapter IV, Cuba, para. 211.See in this regard, IACHR, Application to the Inter-American Court of Human Rights in the case of BaruchIvcher Bronstein v. Peru, Case 11.762, March 31, 1999, p. 25.IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 228.IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 261.See, mutatis mutandi, I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs.Judgment of May 30, 1999. Series C No. 52, para. 128.Organization of American States | OAS