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15Jul02

Additional Response of the United States to Request for Precautionary Measures on behalf of the Detainees in Guantanamo Bay.

TABLE OF CONTENTS

INTRODUCTION

ARGUMENT

I. THE UNCHALLENGED STATE PRACTICE OF DETAINING ENEMY COMBATANTS IN TIME OF ARMED CONFLICT IS NOT SUBJECT TO REVIEW BY THE COMMISSION

II. THE COMMISSION LACKS JURISDICTION TO ISSUE PRECAUTIONARY MEASURES IN THIS CASE CONCLUSION

INTRODUCTION

The Petitioners in this case ask the Commission to do something extraordinary in a time of ongoing armed conflict: without demonstrating any irreparable harm done, let alone an imminent risk of such harm, to the detained enemy combatants currently held at the U.S. Naval Station in Guantanamo Bay, Cuba ("Guantanamo"), the Petitioners request that the Commission "oversee and ensure the United States' compliance" with the international law of armed conflict. Petitioners' Observations of May 13, 2002, page 1 ("Petitioners' Observations"). As the United States has previously submitted in its response of April 11, 2002 ("Response"), the request is inappropriate in several respects related to the law and procedure of the Convention and the Commission. For instance:

  • The Commission lacks the jurisdictional competence to request precautionary measures dealing with the law of armed conflict, See Response, pages 15-28.

  • Even if the Commission enjoyed such jurisdiction, the Petitioners have failed to demonstrate even the semblance of irreparable harm that would be the required basis for precautionary measures. See Response, pages 31-36.

  • The Commission lacks the authority to request precautionary measures of States that are not parties to the American Convention. See Response, pages 36-40.

The United States has reviewed the Petitioners' Observations provided by the Commission under cover of a May 28, 2002, letter from the Executive Secretariat. The Petitioners' Observations, however, do not differ in any material respect from their previous communication with the Commission of February 25. Consequently' the United States' Response of April 11 stands as a full response to the position of Petitioners, and we therefore incorporate the Response by reference in this Additional Response . |1|

This Additional Response examines the Petitioners' Observations to illustrate that the Petitioners continue to mischaracterize and misunderstand the context in which the detentions at issue arise and the jurisdictional deficiencies in their petition . |2|

I. THE UNCHALLENGED STATE PRACTICE OF DETAINING ENEMY COMBATANTS IN TIME OF ARMED CONFLICT IS NOT SUBJECT TO REVIEW BY THE COMMISSION.

A. The Laws of Armed Conflict and Human Rights are Distinct Bodies of Law.

The detention of enemy combatants in Guantanamo arises out of the war against terrorism. Yet In presenting their case, the Petitioners ignore this crucial content, suggesting that the detainees are akin to common criminals whose cases are entitled to "judicial review," Petitioners' Observations, at 21, or who enjoy the right "to resort to the courts to ensure respect for their legal rights," Petitioners Observations, at 15. Petitioners present no legal support for the position that detained enemy combatants have any right under the law of armed conflict to have their detention reviewed by the Commission or to enjoy access to the courts of the Detaining Power to challenge their detention.

Put simply, the Commission's jurisdiction does not include the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained during armed conflict. To be sure, many of the principles of humane treatment found in the law of armed conflict find similar expression in human rights law. And some of the principles of the law of armed conflict may be explicated by analogy or by reference to human rights principles. Yet the Petitioners confuse an overlap of principles with an overlap of jurisdiction. To say that both human rights law and law of armed conflict draw on similar principles of treatment is not to say that bodies with jurisdiction over the one law have jurisdiction over the other.

The Petitioners' confusion on this score is most evident when arguing that "[t]he United States improperly segregates the doctrinal bodies of international human rights law and international humanitarian law." Petitioners' Observations, at 13. Petitioners argue that these bodies of law are "complimentary [sic] and overlapping," id., and they assert boldly that the U.S. position is "uniformly rejected by human rights experts." Id., at 14 (emphasis added). Yet even the leading expert cited by Petitioners, in the very article cited in the Petitioners' Observations, presents a starkly different picture of the relationship between the two areas of law than the one suggested by Petitioners. In that article, Professor Theodor Meron, one of the world's leading scholars of the laws of armed conflict and human rights and currently a judge on the International Criminal Tribunal for the Former Yugoslavia in The Hague, writes:

    Not surprisingly, it has become common in some, quarters to conflate human rights and the law of war/international humanitarian law. Nevertheless, despite the growing convergence of various protective trends, significant differences remain. Unlike human rights law, the law of war allows, or at least tolerates, the killing and wounding of innocent human beings not directly participating in an armed conflict, such as civilian victims of lawful collateral damage It also permits certain deprivations of personal freedom without convictions in a court of law. |3|

The consequences of conflating the two bodies of law would be startling. For instance, application of human, rights norms as suggested by Petitioners would allow all enemy combatants detained in armed conflict to have access to courts to challenge their detention, a result directly at odds with well settled law of war that would throw the centuries-old, unchallenged practice of detaining enemy combatants into complete disarray. As Professor Meron concludes his introduction to the trends at the heart of international humanitarian law, "[t]he two systems, human rights and humanitarian norms, are thus distinct ...." |4|

B. The Facts Underlying the Detention of the Enemy Combatants at Guantanamo are Central to Understanding the Limited Jurisdiction of the Commission in this Case.

A summary of the facts that have necessitated the detention of the enemy combatants at Guantanamo illustrates the gap between the Petitioners' view of the authority of the Commission and the reality of the Commission's human rights law jurisdiction.

On September 11, 2001, the terrorist forces with which the enemy combatants at Guantanamo associate themselves committed an unprecedented and horrific armed attack upon the United States. This coordinated attack left thousands dead in New York City, Pennsylvania and the Pentagon near Washington, D.C. The attacks, organized and calculated to cause massive numbers of deaths and serious injuries to civilians and destruction to civilian property, were of such scale and effects that numerous States, international and regional organizations, including the United Nations, NATO and the OAS, immediately condemned them in the strongest possible terms. See U.S. Response, at 8-9.

The terrorist attacks of September 11 were not. ordinary criminal acts. They were carefully coordinated and of unprecedented scale. They were carried out by shadowy forces in several countries and continents that exploited the culture of freedom to carry out their attacks. They were conceived, directed and protected in the safe harbor of Taliban-run areas of Afghanistan.

The international community has clearly recognized the right of the United States and allied forces to resort to armed force in self-defense in response to these attacks. For instance, the United Nations explicitly recognized the '"inherent, right of individual and collective self-defence" immediately following September 11 . |5| It is in this context that NATO and others recognized that the September 11 attacks constituted an armed attack," |6| a conclusion inherent in the UN Security Council's recognition of the right of self-defense.

It is in this context that President Bush, on October 7, 2001, ordered U.S. armed forces to initiate military action in self-defense against the terrorists and their supporters in Afghanistan. The actions, which continue to this day, are "designed to prevent and deter further attacks on the United States." |7| During the course of hostilities, the U.S. military and allied military forces have captured or secured the surrender of thousands of individuals fighting as part of the al Qaida terrorist network or in support of it. The U.S. military has taken control of many such persons and transferred some of them Guantanamo.

The U.S. Response described the legal status of the detainees at Guantanamo. See Response, at 10-14. In short, "neither the Taliban nor al-Qaida detainees are entitled to POW status. " |8| The detainees are not POWs because they do not meet the criteria applicable to lawful combatants. |9| The Petitioners claim that "international humanitarian law currently does not recognize this status of 'unlawful combatant.'" Petitioners' Observations, at 16. Yet the United States has demonstrated that the status of unlawful combatant not only has a firm basis in international law, but is the appropriate characterization of the detainees at Guantanamo. |10| The Petitioners' chosen paradigm of human rights law is inapplicable to the circumstances of armed conflict in which the detentions at Guantanamo arise.

C. The Commission Does Not Have the Requisite Jurisdictional Competence to Apply International Humanitarian Law.

As described in detail in the U.S. Response and in the sections above, the United States believes that the Commission lacks the jurisdictional competence to apply the law of armed conflict. Although the Petitioners phrase their argument in multiple ways, the essence of Petitioners' argument is that the jurisprudence of the Inter-American system allows for humanitarian law principles and treaties to be taken into account as elements for the interpretation of the American Convention by the Commission and the Court. Petitioners' Observations, at 6-9. In making this argument, however, Petitioners ignore (1) the difference between the scope of authority of the Court and the Commission and (2) the difference between States Parties to the American Convention and non-States Parties to the Convention.

The American Convention specifically authorizes the Court to examine other human rights treaties, but nothing in the American Declaration or the OAS Charter provides the Commission with similar authority vis-a-vis non-States Parties to the Convention. Article 64(1) of the Convention provides in relevant part that:

    The Member States of the Organization may consult the court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states [Emphasis Added].

The Court construed that provision as permitting it to render advisory opinions interpreting other human rights treaties regardless of their extra-hemispheric origin and the fact that non-American States may become parties to them. |11| But in the Las Palmeras Case, The Court refused to uphold the application of humanitarian law by the Commission in finding a violation by Colombia of the Geneva Conventions. |12| Although the Court later reaffirmed that proposition in the Bamaca Valasques Case, it decided that it would have the ability to "observe":

    that certain acts or omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the Geneva Conventions and, in particular, common Article 3. |13|

But in stating this, the Court specifically grounded its ability to do so on "treaties that they do have competence to apply."|14|

Petitioners are in error in interpreting these cases as supportive of the proposition that the Court has recognized a power in the Commission to interpret and apply a humanitarian law treaty if it deems it pertinent to its human rights responsibilities. First it is essential to bear in mind that the Court was construing a provision in the American Convention on Human Rights in all the cases - not the American Declaration. Second, there is no analog to Article 64 in the American Declaration; nor is there any other textual reference in the Declaration to "other treaties." It therefore follows that, at best, whatever the import of the Court's opinions, they only apply to parties to the American Convention. Third, Article 64 provides authority for the Court -- not the Commission -- to be consulted regarding interpretation of "other treaties" concerning the protection of human rights. The Court' s decisions did not expand the powers of the Commission, under the American Declaration, to interpret and apply law of war instruments in individual cases.

European bodies for the protection of human rights have also been restrained in looking at questions of detention during armed conflict. For example, the European Commission of Human Rights considered the detention of POWs by the Turkish army in the Cyprus case. It took "account of the fact that both Cyprus and Turkey are Parties to the [Third] Geneva Convention of 12 August 1949, relative to the treatment of prisoners of war, and that, in connection with the events in the summer of 1974, Turkey in particular assured the International Committee of the Red Cross (ICRC) of its intention to apply the Geneva Convention and its willingness to grant all necessary facilities for humanitarian action ...." |15| The Commission therefore did not find it necessary to "examine the question of a breach of Article 5 of the European Convention with regard to persons accorded the status of prisoners of war." |16| A more recent European human rights treaty has been more explicit in their rejection of a mandate in situations covered by the laws of war. Article 17(3) of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment |17| provides that the Committee "shall not visit places which representatives of delegates of Protecting Powers of the International Committee of the Red Cross effectively visit on a regular basis by virtue of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977 there to."

While it may be true that the UN bodies, the European Commission, the European Torture Committee, and this Commission do not have identical mandates, it is telling that their mandates were obviously framed to limit those human rights bodies from issuing authoritative decisions in the area of law of war, which have been traditionally governed by instruments such as the Geneva Conventions. This comparative international practice provides further grounds for concluding that the authority to address issues regarding the interpretation of the law of war cannot be regarded as incidental or appropriate to a human rights body's consideration of a complaint.

The Petitioners' reliance on the Commission's earlier jurisprudence is also misplaced, in particular its contention that the "most relevant" precedent "both factually and legally" of the Commission is Coard. Petitioners' Observations, at 9, citingCoard et al. v. United States, Case 10.951, Inter-Am. C.H.R. Report No. 109/99 (1999) . That decision demonstrates all too clearly the fundamental limitations and contradictions inherent in the Commission's statutory competence when it seeks to apply strictly the human rights norms of the American Declaration to situations, such as Grenada, in which the Commission is asked to review the actions taken by the military forces of a State in a situation involving international armed conflict. The practical results of the Coard decision turn logic on its head. |18| The Coard decision, in effect, found that the U.S. violated the American Declaration because it failed to take the Petitioners before Grenadian courts to determine the validity of their detention, even when the courts were not functioning. The decision also faulted the United States for failing to release Petitioners back into Grenadian society, although they clearly posed a danger (subsequently convicted of murder). Even if the Commission were tempted to rely upon the Coard reasoning, however, it is readily distinguishable because the Commission found that "the [P]etitioners in Coard were held by U.S. forces both during and after the cessation of hostilities." Petitioners' Observations, at 11-12, citing Coard, para 57. In the present case, the detainees are being held in an armed conflict that is ongoing. |19|

II. THE COMMISSION LACKS JURISDICTION TO ISSUE PRECAUTIONARY MEASURES IN THIS CASE.

This Additional Response has explained the ways in which the Petitioners misconstrue the relationship between the laws of human rights and armed conflict in an attempt to shoehorn this case into the jurisdiction of the Commission. This section addresses Petitioners' equally unsupportable claims about the nature of the Commission's jurisdiction to issue precautionary measures in cases such as this.

A. The Commission Lacks a Mandate to Request the United States to Implement Precautionary Measures.

Petitioners fail to demonstrate that the Commission's organic documents provide it with the authority to request a non State-Party to the American Convention to implement precautionary measures. The Petitioners point primarily to the Commission's Rules of Procedure and its prior practice as evidence of its mandate, |20| but neither its practice nor its Rules establish the Commission's mandate. Its practice is indicative of the Commission's own view of the scope of its mandate; its Rules are adopted only by the Commission itself, not States Parties to either of the constituent documents.

In fact, the Commission's mandate is established by the OAS Charter |21| and the American Convention on Human Rights. |22| While the OAS Charter does not refer to precautionary measures, Article 63 of the American Convention refers to the Court's ability to adopt "provisional measures as it deems pertinent...." The Statute of the Inter-American Commission, adopted pursuant to Article 39 of the American Convention and having been approved by the OAS General Assembly, provides a subsidiary source for determining the Commission's mandate. |23| Article 19 of that Statute builds upon the mandate set forth in Article 63 of the Convention, by authorizing the Commission to request the Inter-American Court of Human Rights for "provisional measures as it considers appropriate in serious and urgent cases...." But none of these organic documents - the OAS Charter, the American Convention or the Commission Statute - allude to any power of the Commission to act on its own accord to request precautionary measures, much less to issue binding precautionary measures. Standing alone, without basis in the Commission's organic documents Article 25 of the Commission's Rules of Procedure provides no mandate for the Commission to request precautionary measures against the Unit ed States. |24|

B. Even if the Commission Had Authority to Issue Precautionary Measures, Such Measures Would Not Be Binding.

Even if the Commission possesses the authority to issue precautionary measures against the United States, such measures, at most, amount to non-binding recommendations. The non-binding character of such measures is grounded in the Statute of the Commission, the practice of other human rights bodies, and the writings of jurists. It is also consistent with the jurisprudence of the Inter-American Court.

The non-binding nature of Commission recommendations corresponds with the structure of the Commission Statute. Article 20 of the Statute of the Commission grants the Commission authority only:

    To make recommendations to [non-parties to the American Convention], when it finds this appropriate, in order to bring about more effective observance of fundamental human rights.

The Commission has authority to offer recommendations to all OAS members, and has the enhanced power to request the Court to issue provisional measures against Convention States-Parties. Because Court-ordered measures are generally stronger sanctions than mere recommendations, in order to comply with the meaning of the text on its face, the authority of the Commission to make recommendations under Article 20 must be less powerful than such measures; that is, it must be non-binding. To find otherwise would conflict with the facial intent to preserve for the Court the authority to issue provisional measures against States-Parties to the American Convention.

Petitioner's cite in support of the binding nature of the request of the Commission for precautionary measures, the Commission's assertion that "international tribunals routinely issue precautionary measures or their equivalent in urgent matters, including the Inter-American Court, the International Court of Justice, the European Court of Human Rights and the UN Human Rights Committee." |25| But that observation is misleading. The first three of the bodies are Courts created by treaties - in which the Courts are given specific powers by the States Parties. While the character of provisional measures in each of the three courts may be unclear, the Courts' statutes provide for binding final judgments. |26| The States Parties that have accepted the jurisdiction of each of these Courts, did so, aware that final judgments of each of these Courts are binding. That situation is very different from the - situation of the Commission vis-a-vis the United States or a State not a party to the American Convention.

As to the UN Human Rights Committee, established pursuant to the international Covenant on Civil and Political Rights, its interim measures are also non-binding. |27| Under Article 5.4 of the Optional Protocol, the Committee does not decide on an individual's communication. Instead, "[t]he Committee shall forward its views to the State Party concerned and to the individual." Rule 86 of the Committee's Rules of Procedure provides similarly that

    The Committee may prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation.

Thus, the Committee may only request that a State take interim measures, and the State is not legally bound to comply. |28| The Committee itself has also said that its "decisions" are not binding:

    It is useful to note that the Committee is neither a court nor a body with a quasi-judicial mandate, like the organs created under another international Human Rights instrument, the European Convention on Human Rights (i.e., the European Commission of Human Rights and the European Court of Human Rights). Still the Committee applies the provisions of the Covenant and of the Optional Protocol in a judicial spirit and, performs functions similar to those of the European Commission of Human Rights, in as much as the consideration of applications from individuals is concerned. Its decision on the merits (of a communication) are, in principle, comparable to the reports of the European Commission, non-binding recommendations. The two systems differ, however, in that the Optional Protocol does not provide explicitly for friendly settlement between the parties, and, more importantly, in that the Committee has no power to hand down binding decision as the European Court of Human flights. States Parties to the Optional Protocol endeavour to observe the Committee's views, but in case of non-compliance the Optional Protocol does not provide for an enforcement mechanism or for sanctions. |29|

Finally, Courts, including the European Court of Human Rights, the Privy Council, and those of Canada, have also treated the Committee's decisions as non-binding or unenforceable. |30| Simply put, there is no support for the proposition that the Human Rights committee can issue binding precaution ary measures. |31|

A more relevant body of jurisprudence for purposes of analyzing the Commission's mandate, which is not mentioned by the Petitioners, is the former European Commission on Human Rights. For many years, it fulfilled a role in Europe similar to that played by the American Commission in the Americas - in that the Commission operated in tandem with the Court of the regional system. But the European Court of Human Rights ("European Court") has held under similar circumstances that, absent a specific provision in the European Convention on Human Rights ("'European Convention"), the European Commission did not have the power to order legally binding interim measures. In the Case of Cruz Varas and Others v. Sweden, Eur. Ct. H.R. Ser. A. No.46/1990/237/307, at 34-35 (1991). Specifically, in the Cruz Varas Case, the European Court addressed the binding nature of a European Commission Rule of Procedure that purported to authorize the Commission to request States to carry out provisional measures. Id. Much like here, there was no statutory authority in the European system to provide for the adoption of provisional measures; the only authority lay in the Commission's self-created Rules of Procedure.

The Court concluded that the European Commission' s request for Sweden to take interim measures not to expel a claimant was not legally binding. Id., at 38. In the absence of a specific provision in the European Convention, the Court held, the European Commission had no power to order interim measures. Id.

The writings of scholars also fail to support the proposition that the Commission's precautionary measures are binding. |32| For example, in a seminal 1994 article on interim measures in the Inter-American Court, Judge Buergenthal |33| described in some detail the negotiating history of the American Convention's article on provisional measures and advanced his arguments for why provisional measures of the Court should be considered to binding orders. |34| In his detailed analysis, he did not once refer to the possibility of the Commission having the ability to request precautionary measures or binding interim measures |35| - an omission that would be astonishing if they were binding. Clearly, Judge Buergenthal in 1994, never even considered the possibility that a few years later, the Commission would be considering that its precautionary measures were binding. |36|

An examination of the Inter-American Court's jurisprudence also does not support the contention that precautionary measures should be treated as binding vis-a-vis non-States Parties to the Convention. Specifically, in the Loayza Tamayo case, the Court stated:

    The Court has previously stated that, in accordance with the stipulation regarding interpretation contained in Article 31(1) of the Vienna Convention on the Law of Treaties, the term 'recommendations' used by the American Convention, should be interpreted to conform to its ordina ry meaning. |37|

    However, in accordance with the principle of good faith, embodied in the aforesaid Article 31(1) of the Vienna Convention, if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply [sic] with the recommendations of a protection organ of the Organization of American States .... |38|

In other words, the Court held that recommendations were recommendations. but that States Parties to the American Convention had "an obligation" to make every effort to carry out the recommendations of the Commission - a far cry from holding that the recommendations bind non-States Parties.

Finally, the Petitioner's argue that public statements of the United States from 1992 and 1999 contradict the position of the United States that the Commission does not have the power to request binding precautionary measures. The statements they cite, however, are completely consistent with the position of the United States. The United States does stand ready to consider the Commission's non-binding recommendations. It does support a human rights process for the American in which it participates. Nonetheless, the United States has never taken the position that Commission's recommendations are binding vis-a-vis other States in the OAS.

Indeed, the United States and the other States in the Americas have been in complete agreement at the last Summit of the Americas with respect to the status of the Commission's recommendations. In the Quebec Summit of Americas Declaration, leaders of the Americas committed their countries to considering an adequate increase in resources for the activities of the Commission and the Court, "in order to improve human rights mechanisms and promote observance of the recommendations of the Commission and compliance with the judgments of the Court." |39| In the Summit's Plan of Action, the same leaders committed to promoting concrete measures to "strengthen and improve the inter-American human rights system, ... focusing on ... complying with the decisions of the Inter-American Court and following-up on the recommendations of the Commission." |40| The language of the summit is not language of States that consider the Commission's recommendations to be binding - indeed, the language reflects the opposite.

It is clear that the leaders of the Summit States consider the Commission extremely important. But it is also clear that these leaders consider the Commission's authority to be of a non-binding nature. |41| In sum, the Commission's organic documents neither give it the authority to issue precautionary measures, nor provide the Commission with the power to issue binding orders vis-a-vis non-States Parties to the American Convention. |42|

CONCLUSION

For the foregoing reasons, and those set forth in the initial U.S. Response, precautionary measures should be rescinded, and Petitioners' additional requests for precautionary measures denied.

Source: Inter-American Commission on Human Rights, Organization of American States, Additional Response of the United States to Request for Precautionary Measures - Detainees in Guantanamo Bay, Cuba, July 15, 2002

Notes:

1. In response to the query of the Commission, the United States notes that there has been no change in the status of any of the individuals under United States military control at Guantanamo Bay. They remain enemy combatants captured in connection with an on-going armed conflict. [Back]

2. As the United States objects to the jurisdiction of the Commission in this case, it does not reply to the merits of the Petitioners' complaint, though we note our objections to the abortions of law and fact they present. [Back]

3. Theodor Meron, The Humanization of Humanitarian Law, 94 A.J.I.L. 239, 240 (2000) (emphasis added). [Back]

4. Id. [Back]

5. UNSC Res. 1368, UN Doc. No. S/RES/1366 (Sept. 12, 2001). See also the statement of Foreign Ministers of the States Parties to the 1947 Inter-American Treaty of Reciprocal Assistance ("the Rio Treaty"), declaring that "the measures being applied by the United States of America and other states in the exercise of their inherent right of individual and collective self-defense have the full support of the [S]tates [P]arties to the Rio Treaty." Meeting of Consultation of Ministers of Foreign Affairs, Committee for Follow-Up to the Twenty- fourth Meeting of Consultation or Ministers of Foreign Affairs (Rio Treaty), OEA/Ser.F/II.24, CS/TIAR/RES. 1/01, Oct. 16, 2001, at http://www.oas.org/(visited July ll, 2002). [Back]

6. Statement on October 2, 2001, by NATO Secretary General Lord Robertson, at http://www.nato-otan.org/terrorisim/index.htm (visited April 5, 2001). [Back]

7. "Article 51" Letter from John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the Security Council, U.N. Doc. No. S/2001/946 (Oct. 7, 2001). [Back]

8. See White House Fact Sheet, Feb. 7, 2002, at 1. [Back]

9. See U.S. Response, at 10-11. [Back]

10. See U.S. Response, at 11, note 4 and accompanying text. See also Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 A.J.I.L. 328, 335 (2002). [Back]

11. Other Treaties Subject to the Advisory Jurisdiction of the Court (Art. 64, American Convention on Human Rights), Advisory Opinion of Sept. 24, 1982, OC-1/82. [Back]

12. Las Palmeras Case, Judgment of Feb. 4, 2000, Preliminary Objections, No. 67. [Back]

13. Bamaca Valasques Case, Judgment of Nov. 25, 2000, Ser, C no. 70, para 208. [Back]

14. The Court also stated: "as already indicated in the Las Palmeras Case (2000), the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention." Id., at para 209. [Back]

15. Cyprus v. Turkey, Report of the Commission, 4 E.H.R.R. 482, para 313 (July 10, 1976). [Back]

16. Id. [Back]

17. Done at Strasbourg, Nov. 26, 1987, entered into force, Feb. 1, 1989, E.T.S. No. 126, reprinted in 27 I.L.M. 1157 (1986). [Back]

18. The United States already explained in detail why the Commission Coard's decision is incorrect. See U.S. Response, at 21-23. Coard rests on the incorrect assumptions that human rights law is equally applicable during armed conflict and takes precedence over international humanitarian law. [Back]

19. See U.S. Response, at 22-23: see also Petitioners' Observation, at 12. [Back]

20. Petitioners claim "both present and past [Rules], explicitly permit it to request precautionary measure against a Member State of the Organization of American States which is not a party to the American Convention on Human Rights." Petitioners' Observations, at 2. [Back]

21. Charter of the Organization of American States, signed in Bogota in 1948, amended by, the Protocol of Buenos Aires in 1967, by the Protocol of Cartagena de Indias in 1985, by the Protocol of Washington in 1992, and by the Protocol of Managua in 1993, reprinted in, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/1.4 rev. 8, at 194-229["Basic Documents"]. [Back]

22. American Convention on Human Rights, Nov. 22, 1969, 9 I.L,M. 673 (1969), reprinted in, Basic Documents, at 23-47. [Back]

23. See Statute of the Inter-American Commission on Human Rights, approved by O.A.S. Gen. Assembly Res. 447 (October 1979), ["Commission Statute"] reprinted in Basic Documents, 119-26. [Back]

24. Some authorities on tho Commission contend that the issuance of precautionary measures "derive from the Commission's competence and functions (see Article 41 of the American Convention)." See David J. Padilla, Provisional Measures under the American Convention of Human Rights, in LIBER AMICORUM HECTOR FIX-ZAMUDIO 1189-96, at 1189-90, note 4 (1998). Even if this were the case, it would only be the case for States Parties to the American Convention. Article 41's preamble provides that "[t]he main function of the Commission shall be to promote respect for and defense of human rights." It further provides the Commission with enumerated functions and power, including, in paragraph (f): "to take action on petitions and other communications pursuant to its authority under the provisions of Article 44 through 51 of the Convention." To the extent that article 41's preamble and its paragraph (f) provide the mandate for the Commission's issuance of precautionary measures, Articles 44 through 51 only apply to States Parties to the American Convention. Thus, the former Assistant Executive Secretary of the Commission also acknowledges that the "Commission's issuance of precautionary measures are only expressly provided for in the Commission's Regulations." (The Commission' s Regulations were later changed to be called its Rules).

Other than Article 41's paragraph (f), there is only one other possible sub-paragraph that could have been suggested by Petitioners as providing a mandate for the Commission to request precautionary measures from non State Parties to the American Convention. Article 41 (a) provides the Commission with the function and power "to make recommendations to the government of the Member States when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights." See Christina M. Cerna, Commission Organization and Petitions, in THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS 107 (David J. Harris & Stephen Livingstone eds.1998). That mandate, however, is only for a recommendation, not precautionary measures, and certainly not binding precautionary measures. [Back]

25. Petitioners' Observations, at 3-4, citing Juan-Raul Garza v. United States,Case No. 12.243, at para 69, reprinted in 2000 ANN. REP. I.A.C.H.R., vol 2, at 1255-1303 (2001). [Back]

26. See Statute of the International Court of Justice, at http://www.icj-cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm. For the Inter-American Court, the English text of the American Convention's Articles 67 and 68 provides that "judgments" and final and binding. But because of differences in translation between the English, Spanish, French, and Portuguese texts, it is unclear as to whether the Court's provisional measures "decisions" are binding, See Thomas Buergenthal, Interim Measures in the Inter-American Court of Human Rights, in INTERIM MEASURES INDICATED BY INTERNATIONAL COURTS 69- 94 (R. Bernhardt ed. 1994). As to the European system, in accordance with Article 53 of the European Convention, States Parties have undertaken to abide by the decisions of the Court. But the European Court of Human Rights took the position in the Cruz Varas Case that the European Convention did not contain any provision empowering the Convention organs to order interim measures. Seediscussion in P. VAN G.J.H VAN HOOF, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 103-07 (1998), citing In the Case of Cruz Varas and Others v. Sweden, Eur. Ct. H.R. Ser. A. No. 46/1990/237/307 (1991) . The Convention still has no provision on point, but the new rules of the Court allow for interim measures by the Court, but do not specify their legal effect. See Rule 39.1, Rules of European Court of Human Rights, Strasbourg 1999, in force Nov. 11, 1998, at http://www.echr.coe.int/Eng/EDocs/RulesOfCourt.html (visited July 1, 2002). [Back]

27. See P.R. GHANDI, THE HUMAN RIGHTS COMMITTEE AND THE RIGHT OF INDIVIDUAL COMMUNICATION - LAW AND PRACTICE, at 57-58 (1998). See also David Kretzmer, Commentary on Complaint Processes by Human Rights Committee and Torture Committee members: The Human Rights Committee, in THE UN HUMAN RIGHTS TREATY SYSTEM IN THE 21ST CENTURY 2000, at 164 (Bayefsky ed.) ("The fact that the Optional Protocol does not state that the Human Rights Committee's views under the Protocol are legally binding, and that there are no enforcement mechanisms, was a clear policy decision by the international community.") [Back]

28. See Front Line, The Human Rights Defender's Manuel, at http://www.frontlinedefenders.org/manual/en/hrc_m.htm (visited June 12, 2002). [Back]

29. See Introduction, SELECTED DECISIONS OF THE HUMAN RIGHTS COMMITTEE UNDER OPTIONAL PROTOCOL, Vol. 2 (1990), at p. 1. [Back]

30. In the Case of Cruz Varas and Others, Eur. Ct. H.R. Ser. A. No. 46/1990/237/307 (1991); Briggs v. Baptiste, J.C.J. No. 47 (1999); Ahani v. Canada (Attorney General), Feb. 8, 2002, Court of Appeal for Ontario, at http:\\www.ontariocourts.on.ca/decisions/2002/February/ahaniC37565.htm (visited June 13, 2002). [Back]

31. Although the Committee has recently altered its own view as to the effect of its request for interim measures, finding a State to be in violation of its obligations under the Optional Protocol if it does not abide by the request, Communication No. 869/1999: Phillipines, CCPR/C/70/D/863/1999, Oct. 19, 2000, the Committee premised its views on the Philippines having an obligation to allow the Committee to consider individual communication as a party to a treaty that specifically granted the Committee such competence. This is very different from the situation vis-a-vis; the United States and the Commission. [Back]

32. Neither the Petitioners nor the Commission has ever cited to one scholar who considers the Commission's precautionary measures to be binding. [Back]

33. Judge Buergenthal currently serves as a Judge on the International Court of Justice. He was formerly President of the Inter-American Court on Human Rights. [Back]

34. Thomas Buerganthal, Interim Measures in the Inter-American Court of Human Rights, in INTERIM MEASURES INDICATED BY INTERNATIONAL COURTS 69-94 (R. Bernhardt ed. 1994). [Back]

35. Instead, Judge Buergenthal expresses his concern about the difficulties for the Court in supervising compliance with a Court's order of provisional measures in cases not yet referred to the Court - a matter that would not be a problem if the Commission could be issuing protective measures of a binding nature. See Buergenthal, at 92. He also notes that the Court has denied some requests by the Commission for urgent measures - again, the Commission would have no reason to go the Court if it could issue binding measures and the Court certainly would not be denying such requests. See id., at 91 notes 61-63. He acknowledges, however, that the threat of a hearing by the American Court of provisional measures "tended to make the State concerned more willing to adopt on its own certain protective measures it was previously unwilling to consider." See id, at 91-92. [Back]

36. Even the authorities that support the notion that the Commission has the authority to issue binding precautionary measures have never argued that the Commission has such authority vis-a-vis non-States Parties to the Convention. For example, former Assistant Executive Secretary of the Inter-American Commission on Human Rights David Padilla supports the proposition that the Commission's precautionary measures should be treated as binding. Nonetheless, Mr. Padilla bases his reasoning on the fact that "States Parties to the Convention" have to carry out "treaty-sanctioned procedures under the Convention." He does not venture to extend his argument to non-States Parties. See David J. Padilla, Provisional Measures under the American Convention on Human Rights, in LIBER AMICORUM HECTOR FIX-ZAMUDIO 1189-96. [Back]

37. Loayza Tamayo Case, Judgment of Sept. 17, 1997, Series C No. 33, para 79, citing Caballero Delgado and Santana Case, Judgment of Dec. 8, 1995, Series C No. 22, para 67 and Genie Lacayo Case, Judgment of Jan. 29, 1997, Series C No. 30, para 93. [Back]

38. Id., at para 80. [Back]

39. Third Summit of the Americas, Declaration of Quebec City, Apr. 20-22, 2001, at http:\\www.oas.org (visited July 1, 2002). [Back]

40. Third Summit of the Americas, Quebec City, Plan Of Action, Apr. 20-22, 2001, at http:\\www.oas.org (visited July 1, 2002). [Back]

41. Most recently, OAS Member States echoed their understanding of the nature of their Summit commitments in resolutions adopted at this year's OAS General Assembly, which urged OAS Member States to: "[t]ake the necessary steps to comply with the decisions or judgments of the Inter-American Court of Human Rights and make its best efforts to follow up on the recommendations of the Inter-American Commission on Human Rights." See O.A.S. G.A. Res. 189 (XXXII-0/02), "Evaluation of the Workings of the Inter-American System for the Protection and Promotion of Human Rights with a View to its Improvement And Strengthening," OP3(c), at http://www.oas.org (visited July 10, 2002). O.A.S. G.A. Resolution 1894 issued a similar call to Member States, urging OAS Member States "to make their best efforts to follow-up on the recommendation of the Inter-American Commission on Human Rights." Resolution 1894 {XXXII-0/02), "Observations and Recommendations of the Annual Report of the Inter-American Commission on Human Rights," OP3, at http://www.oas.org (visited July 10, 2002). [Back]

42. Even if the Commission had the authority to recommend the issuance of precautionary measures, which it does not, precautionary measures are unnecessary because there is no risk, let alone an immediate risk of irreparable harm to the detainees. See U.S. Response, at 28-36. Petitioners' Observations are replete with unsubstantiated and indeed highly implausible speculation as to what might happen to the detainees in the future without Commission intervention "to oversee and ensure the United States compliance" not only with the precautionary measures already improperly requested, but also with additional vaguely fashioned measures. Such speculation includes that the United States might eventually prosecute or even execute particular detainees without benefit of either counsel or appellate review: that the physical or mental condition of some of the detainees after decade-long warfare and abusive conditions in Afghanistan is somehow attributable to more recent United States conduct; and that any detainees suffering physically or mentally today are not receiving proper if not better treatment at Guantanamo than would have been feasible in the field of battle during the ongoing armed conflict in Afghanistan. Nothing in the Petitioners' Observations disputes the commitment of the United States Government to treat the detainees humanely and consistent with the principles of the Geneva Convention. Moreover, none of the precautionary measures suggested by Petitioners find support in applicable international norms or in fact. The fundamental flaw, however, in the Petitioners' logic is that the precautionary measures sought are anticipatory and hardly permissible either under the Commission's Rules, at Art. 25(1), or the Commission Statute, Article 19(c). The United States declines to reply to the merits of Petitioners' idle speculation in view of the Commission's lack of jurisdiction in this case or authority to issue such precautionary measures in any event. [Back]

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