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15Apr02

Response of the US to the request for Precautionary Measures on behalf of the detainees in Guantanamo Bay, Cuba.

INTER - AMERICAN COMMISSION ON HUMAN RIGHTS
COMISIÓN INTERAMERICANA DE DERECHOS HUMANOS
COMISSÃO INTERAMERICANA DE DIREITOS HUMANOS
COMMISSION INTERAMERICAINE DES DROITS DE L'HOMEE

ORGANIZATION OF AMERICAN STATES
WASHINGTON, D.C. 2 0 0 0 6 U.S.A.

April 15, 2002

Ref. Detainees in Guantanamo Bay, Cuba
Request for Precautionary Measures

Dear Sirs and Madams:

On behalf of the Inter-American Commission on Human Rights, I wish to inform you that the Government of the United States has replied to the Commission's March 13, 2002 decision to adopt precautionary measures in the matter cited above. A copy of the State's response is appended to this communication.

Any observations that you may have with respect to the State's reply should be sent within 20 days of receipt in order that the Commission may determine how to proceed in the matter.

Sincerely yours,

Santiago A. Canton
Executive Secretary

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES

RESPONSE OF THE UNITED STATES
TO
REQUEST FOR PRECAUTIONARY MEASURES -
DETAINEES IN GUANTANOMO BAY, CUBA

TABLE OF CONTENTS

Introduction

Statement of facts

Argument

I. The Commission does not have the requisite jurisdictional competence to apply the 1949 Geneva Convention on Prisoners of War or customary International Humanitarian Law

II. Even if the Commission had the jurisdictional competence to apply International Humanitarian Law with respect to the United States, which it does not, precautionary measures are neither necessary nor appropriate in this case

III. The Commission does not have the authority to make requests for precautionary measures to non-states parties to the american convention such as the united states, as it has done in this case

IV. Conclusion

INTRODUCTION

The Government of the United States submits this response to the request of the Inter-American Commission on Human Rights dated March 12, 2002, for precautionary measures with respect to individuals currently held at the U.S. Naval Station in Guantanamo Bay, Cuba ("Guantanamo"), who were captured in Afghanistan in connection with a military operation against the Taliban and al Qaida and then transported by the United States to Guantanamo beginning on or about January 11, 2002 ("detainees").

Specifically, the Commission requests that the United States "take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.... in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights." Letter from Juan Mendez, President of the Inter- American Commission on Human Rights Request, to Colin Powell, U.S. Secretary of State 4 (March 12, 2002) ("Commission Letter").

The United States respectfully submits that the Commission has acted without basis in fact or law in requesting precautionary measures in this case. Specifically, the United States contends that (1) the Commission does not have the requisite jurisdictional competence to apply international humanitarian law,|1| including the 1949 Geneva Convention on prisoners of war ("Geneva Convention"), |2| as well as customary international humanitarian law; (2) even if it did possess the requisite jurisdictional competence, precautionary measures in this case are neither necessary nor appropriate; and (3) the Commission does not have authority over non-States Parties to the American Convention on Human Rights to request precautionary measures, as it has done in this case.

For these reasons, the United States respectfully asks the Commission to rescind its request for precautionary measures. The Commission should, nonetheless, be aware that the detainees are being treated humanely and consistent with the principles of the Geneva Convention.

While the United States is not at this time responding co the merits of the petition, and reserves its right to do so at a later date, the United States nonetheless wishes to draw the Commission's attention to its admissibility requirements. Those requirements, as set forth in Articles 27 and 34 of the Commission's Rules of Procedure, have not been met in this case because the petition is manifestly groundless and fails to state facts that constitute a violation of rights set forth in the American Declaration of the Rights and Duties of Man ("American Declaration"). See Rules of Procedure of the Inter-American Commission on Human Rights, Approved by the Commission at its 109th Special Session, Dec. 4-6, 2000, reprinted in ORGANIZATION OF AMERICAN STATES, BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM 127-53 (2000) [hereinafter Basic Documents].

STATEMENT OF FACTS

On September 11, 2001. the United States was the victim of massive and brutal attacks carried out by 19 al Qaida suicide attackers who hijacked and crashed four U.S. commercial jets, two into the World Trade Center towers in New York City, one into the Pentagon near Washington, D.C., and a fourth into a field in Shanksville, Pennsylvania, leaving about 3,000 individuals dead or missing.

On the morning of September 11, the foreign ministers representing the member states of the Organization of American States ("OAS"), including U.S. Secretary of State Colin Powell, were meeting in Lima, Peru, "to reaffirm their commitment to representative democracy." See OAS publication. United Against Terrorism, <http://www.oas.org/assembly/GAAssembly2000/Gaterrorism.htm> (visited April 5, 2002). The OAS General Assembly immediately "condemned in the strongest terms, the terrorist aces visited upon the cities of New York and Washington, D.C." and expressed "full solidarity" with the government and people of the United States. Id.

The foreign ministers of the OAS member states reconvened on September 21, and adopted a resolution that condemned the attacks. Id. Immediately thereafter, the foreign ministers of the States Parties to the 1947 Inter - American Treaty of Reciprocal Assistance (the Rio Treaty) declared that "these terrorist attacks against the United States of America are attacks against all American states." Id. The ministers passed a resolution agreeing to "use all legally available measures to pursue, capture, extradite, and punish" anyone in their territories believed to be involved in terrorist activities." Id.

Meanwhile, the United Nations also condemned the acts as a "threat to international peace and security" and recognized the "inherent right of individual and collective self-defence in accordance with the Charter." See U.N. Sec. Council Res. 1366, U.N. Doc. No. S/RES/1368 (Sept. 12, 2001); see also U.N. Sec. Council Res- 1373, U.N. Doc. No. S/RES/1373 (Sept. 28, 2002) (committing States to take certain steps to combat terrorism). The North Atlantic Treaty Organization (NATO) publicly stated that the September 11 attack "shall ... be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack on one or more of the Allies of Europe or North America shall be considered an attack against them all." Statement on October 1, 2001, by NATO Secretary General Lord Robertson, at <http://www.nato-otan.org/ terror ism/index.htm> (visited April 5, 2002).

President Bush later stated that " [i]nternational terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." U.S. Military Order; Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (Nov. 13, 2001), 66 Fed. Reg. 57,833 (2001), at Section 1(a).

On October 7, 2001, President Bush invoked the United States' inherent right of self-defense and, as Commander-in-Chief of the U.S. military, ordered U.S. armed forces to initiate action in self-defense against the terrorists and the Taliban regime that harbored them in Afghanistan. The U.S. armed forces "initiated actions designed to prevent and deter further attacks on the United States.... [including] measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." Letter from John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the U.N. Security Council, U.N. Doc. No- S/2001/946 (Oct. 7, 2001)- The attacks commenced when United States and British forces "launched airstrikes at terrorist training camps and military targets throughout Afghanistan [on October 7, 2001], opening what [U.S.] President Bush pledged would be a 'sustained, comprehensive and relentless' campaign against those responsible for the worst terrorist attacks in American history." The Washington Post, U.S., Britain Launch Airstrikes Against Targets in Afghanistan, Oct. 8, 2001/ at A1. The conflict continues today.

During the course of hostilities in Afghanistan, the U.S. military and its allies have captured or secured the surrender of thousands of individuals fighting as part of the al Qaida terrorist network or to support, protect, or defend the al Qaida terrorists. The U.S. military has taken control of many such individuals and transferred some of them to Guantanamo. The first detainees arrived at Guantanamo on January 11, 2002, and others have arrived from Afghanistan since then.

Shortly after the detainees' arrival at Guantanamo, President Bush's Press Secretary announced the President's determination that the Geneva Convention "applies to the Taliban detainees, but not to the al-Qaida detainees." See White House Fact Sheet, Status of Detainees at Guantanamo, Office of the Press Secretary, Feb. 7, 2002, p. 1, at <http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html> (visited April 5, 2002) (attached); see also Geneva Convention, Article 2. The President determined at the same time that "neither the Taliban nor al-Qaida detainees are entitled to POW status." See white House Pact Sheet, Feb. 7, 2002, at 1. The President reached this decision after careful review and in consultation with his most senior advisers.

    The United States stated publicly that:

    Under Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status. . . . The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war . . . . Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW statue under the treaty.

Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in Washington, D.C. (Feb. 7, 2002).

Thus, the detainees are not POWs because they do not meet the criteria applicable to lawful combatants. The United States has made it clear that the detainees are unlawful combatants |3| --a legal status that has long been recognized under international law -- who may be detained at least for the duration of hostilities. |4| See, e.g., INGRID DETTER, the law of war 148 (2000) ("Unlawful combatants . . . though they are a legitimate target for any belligerent action, are not, if captured, entitled to any prisoner of war status."). Petitioners themselves have acknowledged that "[i]t is the official position of the United States government that none of the detainees are [sic] pows. Instead, [U.S.] officials have repeatedly described the prisoners as 'unlawful combatants' . . . ." |5| Petitioner's Request at 7. Thus, the United States has publicly announced ics position with respect to the legal status of the detainees, and this position is widely known, including by Petitioners.

Notwithstanding the fact that the detainees are unlawful combatants, the United States "is treating and will continue to treat [the detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention] . . . . The detainees will not be subjected to physical or mental abuse or cruel treatment." See White House Fact Sheet, Feb. 7, 2002, at 1-2. The detainees are being provided three culturally sensitive meals a day, shelter, new clothing and shoes, showers, and sleeping pads and blankets. Id. The United States is also giving the detainees excellent medical care. See, e.g., April Gorenflo, Portable Hospital Provides Medical Care for Detainees, U.S. Joint Task Force News Service, Jan. 31, 2002, at <http://www.nsgtmo.navy.mil/jtf-160/News/31JAN02G.htm> (visited April 11, 2002). For example, detainees have received routine medical care, prescription medication, eye examinations and corrective eyewear, and when serious medical concerns require, even hospitalization and surgery. Id.; see also Statement by U.S. Senator Kay Bailey Hutchison in Gilmore, supra, note 3 (noting that the Joint Task Force 160 troops are doing a good job providing medical care to the detainees -- "the same type of medical care available to U.S. troops and their family members").

The detainees have been given personal toiletries, new towels and washcloths, and a routine opportunity to take showers. See White House Fact Sheet, Feb. 7, 2002, at 1-2. They have been given the opportunity to worship freely and many have been given copies of the Koran in their native language. See Gilmore, supra note 3.

The detainees are not being held incommunicado. Representatives of the International Committee of the Red Cross ("ICRC") have visited detainees individually and privately. See White House Fact Sheet, Feb. 1, 2002, at 2; see also Statement by Secretary Rumsfeld in Jim Garamone, Rumsfeld Explains Detainee Status, American Forces Press Service, Feb. 8. 2002, at <http://www.defenselink-mil/news/Jan2002/n01272002_200201271.html> (visited April 11, 2002). Subject to certain restrictions, the detainees are talking with one another and some have met and consulted privately with a U.S. Navy chaplain of Muslim faith. See, e.g., Statement by U.S. Navy Lt. Saiful Islam (Muslim Chaplain) in Gilmore, supra note 3 (saying that he calls the detainees to afternoon prayer and has spoken with some of the detainees). Some have met with government officials from their country of nationality.

On February 25, 2002, the petitioners in this case filed a request for precautionary measures, seeking "the urgent intervention of the Inter-American Commission on Human Rights ("Commission") in order to prevent continued unlawful acts that threaten the rights of (individuals captured in Afghanistan who now are being] detained by the United States government at its military base at [Guantanamo]." Petitioners' Request at 1. On March 12, 2002, the Commission partially granted Petitioners' request and asked the United States "to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal." See Commission Letter at 2. The United States now responds to that request.

ARGUMENT

I. THE COMMISSION DOES NOT HAVE THE REQUISITE JURISDICTIONAL COMPETENCE TO APPLY THE GENEVA CONVENTION OR CUSTOMARY INTERNATIONAL HUMANITARIAN LAW.

The United States recognizes that the Commission has the jurisdictional competence to offer guidance to States that are not party to the American Convention on Human Rights ("American Convention") |6| with respect to the human rights that are contained in the American Declaration on the Rights and Duties of Man ("American Declaration"). |7| However, the Commission lacks the jurisdictional competence to apply international humanitarian law, including the Geneva Convention. It is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatants in armed conflict. While reserving its position on the methodology itself, the United States notes that the Commission has failed to follow the methodology set forth by the International Court of Justice ("ICJ") for ascertaining the applicable legal norms in cases that involve humanitarian law. |8|

A. The Commission has the jurisdictional competence to offer guidance on the basis of the American Declaration on the Rights and Duties of Man to non-States Parties to the American Convention on Human Rights.

Chapter VII of the American Convention establishes the organization, functions and procedures of the Commission. See American Convention, Articles 34-51. Article 39 of the American Convention authorized the Commission to prepare its Statute, which was submitted to the OAS General Assembly for its approval in Resolution No. 447. See Statute of the Inter-American Commission on Human Rights, approved by O.A.S. Gen. Assembly Res. 447 (October 1979), reprinted in Basic Documents,119-26 (2001) ("Commission Statute"). The Commission Statute provides further details about the operation of the Commission, and identifies its functions and powers. See id., Articles 18-20.

Articles 18 and 20 of the Commission Statute specifically set forth the scope of the Commission's competence with respect to States that are not party to the American Convention, Specifically, these articles authorize the Commission "to make recommendations ... on the adoption of progressive measures in favor of human rights . . . as well as appropriate measures to further observance of those rights"; "to pay particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV and XXVI of the American Declaration of the Rights and Duties of Man"; and "to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information . . . and to make recommendations to it . . . in order to bring about more effective'observance of fundamental human rights." See Id.

The Commission's competence with respect to countries that are not States Parties to the American Convention extends only to offering human rights guidance. See Commission Statute, Articles 18, 20. As the Commission is well aware, it is the longstanding position of the United States that the Commission's competence with respect to the United States extends only to offering guidance on the American Declaration. |9| It follows that the Commission lacks the authority with respect to the United States to exercise competence over issues falling outside of the American Declaration. Because this case involves international humanitarian law principles, the Commission does not have the authority to give guidance to the United States on these matters, let alone to request precautionary measures.

B. The Commission lacks the jurisdictional competence to apply international humanitarian law, including the Geneva Convention and customary international humanitarian law.

In a recent judgment of the Inter-American Court of Human Rights, the Las Palmeras Case, the Court held that the competence of the Court for a party to the American Convention (which the United States is not) extended only "to determin[ing] whether the acts or the norms of the States are compatible with the [American] Convention itself, and not with the 1949 Geneva Conventions." See Las Palmeras Case, Preliminary Objections, Judgment No. 67, Feb. 4, 2000, at para. 33, at <http://www.corteidh.or.cr/seriecing/C_67_ENG.html> (visited April 11, 2002). The Court also held that the competence of the Commission extended only "to rights protected by that [American] Convention," unless the state had ratified another convention conferring competence on the Commission. Id. at para. 34.

In the Las Palmeras Case, the Commission requested that the Court "conclude and declare that the State of Colombia [had] violated the right to life, embodied in Article 4 of the Convention, and Article 3, common to all the 1949 Geneva Conventions . . . ." Id. at para. 28. In opposition, Colombia argued that, although members of the OAS must observe the 1949 Geneva Conventions in good faith, this did not give the Commission competence to infer State responsibility based on them. Id. at 34. The Court agreed with Colombia and upheld Colombia's preliminary objections. Id.

In many respects, the Commission is now presented with a similar case. Indeed, the case against jurisdiction is even stronger here, for the United States is not a party to either the American Convention or any other convention giving competence to the Commission to consider the application of international humanitarian law with respect to the United States, the Commission's competence is limited to considering certain rights set forth in the American Declaration.

In the present case, however, the Commission's request for precautionary measures and the precautionary measures themselves are not premised on any rights get forth in the American Declaration. This case is not about the American Declaration. Rather, this case is about the detention of captured enemy combatants who took part in hostilities during an armed conflict - an armed conflict that continues at this time. It involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law, neither of which lies within the scope of the Commission's competence. In order to request provisional measures in this case, the Commission necessarily has had to interpret and apply humanitarian law, specifically Article 5 and other provisions of the Geneva Convention -- a body of law separate and distinct from the American Declaration and the body of human rights law.

The Commission's application of humanitarian law in this case is inconsistent with the Court's ruling in Las Palmeras. In addition, it plainly exceeds the Commission's limited authority with respect to the United States, to make recommendations with respect to human rights set forth in the American Declaration. It also flatly contradicts the Commission's own statement of purpose, i.e., "to [supervise] member states' observance of human rights . . . ." Commission Letter at 2.

Petitioners have attempted to blur the distinction between human rights law and humanitarian law by arguing that "both share a 'common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.'" Petitioners' Request at 11-12 (citing Coard et al. v. United States, Case 10,951, Inter-Am. C.H.R. Report No. 109/99, (1999), para. 39).

Petitioners' reliance on Coard and citation to international human rights law is misguided, in part because it rests on the assumption that human rights law is equally applicable during armed conflict and indeed takes precedence over international humanitarian law. In fact, international human rights law is not applicable to the conduct of hostilities or the capture and detention of enemy combatants, which are governed by the more specific laws of armed conflict. While reserving its position on the case, the United States notes that the ICJ explained, in its Advisory Opinion on the Legality of the Threat or- Use of Nuclear Weapons, that human rights law. to the extent it is applicable during armed conflict, must be interpreted in light of relevant lex specialis as set forth in the body of humanitarian law. See Advisory Opinion, 35 I.L.M. 809, 1343 at para. 25.

While the United States continues to assert that Coard was decided incorrectly, |10| even if that were not the case, Coard is inapposite here. In Coard, the Commission addressed the United States' detention of certain individuals allegedly after the cessation of hostilities in Grenada. See Inter-Am. C.H.R. Report No. 109/99 at para. 57. The Commission found that the detainees "were held for six to nine days after the cessation of hostilities without access to any review of the legality of their detention." Id. In that case, the Commission found the detentions incompatible with the American Declaration "as understood with reference to Article 78 of the Fourth Geneva Convention", i.e., the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. |11| Id.

In the present case, unlike in Coard, the detainees are being held in an armed conflict that is ongoing. Furthermore, the detainees in this case, unlike in Coard, are not subject to the Fourth Geneva Convention on civilians. Rather they are unlawful enemy combatants who were captured while taking part in hostilities against the United States and its allies. For these reasons, as well as previously-articulated reasons relating to the Commission's jurisdictional competence, the Commission's conclusions in Coard do not apply to this case.

Moreover, Petitioners' general reliance on human rights law is at odds with international humanitarian law, as well as the Inter-American Court's ruling in the Las Palmeras Case. As the Court recognized in the Las Palmeras Case. the Commission has no independent jurisdictional competence to interpret and apply international humanitarian law in a case such as this one. See, e.g., Las Palmeras at para. 33.

Nor can Petitioners save the jurisdictional competence of the Commission by framing the issues in terms of human rights law, evidently ignoring the separate and distinct humanitarian law rules at issue. For example, the Petitioners assert that the United States has violated the detainees' human rights to be free from, inter alia., arbitrary and prolonged detention without, however, any reference to the separate and distinct rules of detention in international humanitarian law. Petitioners' Request at 1. Under international humanitarian law, states engaged in armed conflict have the right to capture and detain enemy combatants, whether or not the combatants are POWs. |12| In this case, active hostilities are ongoing. The United States is therefore fully entitled to hold the detainees.

In light of the Commission's limited competence and the judgment of the Inter-American Court in the Las Palmeras Case, the Commission plainly does not have; the competence to interpret or apply the laws and customs of war in this case, nor to issue its request for precautionary measures. Fundamental legal principles require the Commission to follow the Court's holding in the Las Palmeras Case.

C. In addition to its lack of jurisdictional competence, the Commission has failed in this case to follow the methodology set forth by the International Court of Justice for ascertaining the applicable legal norms in cases that involve international humanitarian law.

International humanitarian law is the applicable law in armed conflict. It is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatants in armed conflict. To the extent the ICJ's decision in the Nuclear Weapons Case implies otherwise, the United States reserves its judgment. However, even if the Commission were to apply the ICJ approach faithfully, the Commission would conclude that it lacks jurisdictional competence to act in this case.

Under the ICJ's methodology, the Commission would have to interpret the American Declaration in light of the lex specialis, i.e., international humanitarian law and the Geneva Convention. See Advisory Opinion, 35 I.L.M. 809, 1343 at para. 25. The ICJ explained in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that, to the extent human rights law is applicable during armed conflict, it must be interpreted in light of relevant lex specialis as set forth in the body of humanitarian law. Id.

In the Nuclear Weapons Case, as the Commission noted in its request to the United States, the ICJ observed that in order to interpret the human rights concept of "arbitrary deprivation of life" during an armed conflict, it is necessary to determine the applicable lex specialis - namely, the law applicable in armed conflict - and refer to it to determine the underlying legal standard or rule. Commission Letter, at 3, citing id. The ICJ concluded that to determine whether the loss of human life resulting from the use of a certain weapon in warfare was to be considered an arbitrary deprivation of life contrary to Article 6 of the International Covenant on Civil and Political Rights, it was necessary to refer to the relevant humanitarian law applicable in armed conflict. See Advisory Opinion, 35 I.L.M. 809, 1343 at para. 25.

Accordingly, the ICJ's analysis would require the Commission to take the following analytical steps in this case:

  • First, the Commission would determine the generally applicable human rights norm. The generally applicable norm under the American Declaration, Article XVIII, provides that individuals may resort to the courts to protect their legal rights. American Declaration, Art. XVIII. Absent applicable lex specialis therefore, detainees generally would have recourse to the courts to challenge their detentions.
  • Second, the Commission would determine whether there is any applicable lex specialis. In this case, the lex specialis would be international humanitarian law because the detainees were captured in the context of an ongoing armed conflict.
  • Third, the Commission would determine whether the lex specialis forms a separate and distinct rule altogether, or rather, merely refines the otherwise applicable concepts embodied in the American Declaration.
  • Fourth, if the lex specialis forms a separate and distinct rule altogether, the Commission would determine whether it had competence to interpret the separate and distinct lex specialis. In this case, the Commission would recognize that the international humanitarian laws on detention are quite explicit, as well as separate and distinct from the human rights norms in the American Declaration. The Commission would recognize that it, unlike the 1CJ. has a very limited jurisdictional competence which does not include international humanitarian law, for reasons previously discussed. The Commission would then acknowledge that where it lacks the competence to interpret and apply the relevant law, it must decline to grant the Petitioners' request.

A conclusion that the Commission lacks competence is the correct result in this case. As described below, the lex specialis in this case is the body of international humanitarian law relating to detentions, which affords the detainees, as captured unlawful enemy combatants, no right of access to the detaining power's courts.

This case is not one where the Commission is simply informing itself of the meaning of a human rights norm reflected in the American Declaration, such as Article XVIII. Rather, as previously discussed, the underlying facts of this case involve hostile, unlawful enemy combatants who were lawfully captured and detained in the course of active hostilities in armed conflict. Petitioners' request and the Commission's subsequent precautionary measures request both are based upon the interpretation and application of Articles 4 and 5 of the Geneva Convention, as well as customary international humanitarian law. There can be no doubt that this case is fundamentally about alleged rights and duties under humanitarian law.

The Commission, whose mission it is to interpret human rights under the American Declaration, lacks the jurisdictional competence to interpret and apply humanitarian law. Thus, the Commission does not have the requisite jurisdictional competence to apply the relevant law in this case.

II. EVEN IF THE COMMISSION HAD THE JURISDICTIONAL COMPETENCE TO APPLY INTERNATIONAL HUMANITARIAN LAW WITH RESPECT TO THE UNITED STATES, WHICH IT DOES NOT, PRECAUTIONARY MEASURES ARE NEITHER NECESSARY NOR APPROPRIATE IN THIS CASE.

Precautionary measures are designed "to prevent irreparable harm to persons." Commission Statute, Art. 19; Commission Rules of Procedure, Art. 25. Moreover, precautionary measures are appropriate only in cases of extreme urgency. The Inter-American Court of Human Rights has stated that "the urgency of the required measure is the result of the nature of the situation that motivates it. The Court must evaluate whether there is a situation of urgency where the right to life or to physical integrity is being threatened or violated, which are the grounds that the Court has previously considered in order to call for provisional measures." Request for Provisional Measures (Costa Rica), Order of the Inter-American Court of Human Rights, May 23. 2001.

In this case, precautionary measures are neither appropriate nor necessary because (1) the legal status of the detainees already is clear; and (2) there is no risk of , irreparable, let alone immediate, harm to the detainees.

A. Precautionary measures are unnecessary because the legal status of the detainees already is clear.

The Commission Letter states that "precautionary measures are both appropriate and necessary . . . in order to ensure that the legal status of each of the detainees is clarified . . . ." Commission Letter at 4. This statement assumes that the legal status of the detainees needs clarification. In fact, however, their legal status has been stated clearly and is widely known.

The United States has stated publicly that the detainees are not entitled to POW status because they are unlawful combatants. For example, the United States has said:

    Under Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status. . . . The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. . . . Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.

Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in Washington, D.C. (Feb. 7, 2002). Petitioners themselves acknowledge that "[i]t is the official position of the United States government that none of the detainees are [sic] pows. Instead, officials have repeatedly described the prisoners as 'unlawful combatants' . . . ." Petitioner's Request at 7.

Thus, contrary to the Commission's assertion, the detainees' legal status is clear. The United States has made it a matter of public record that the detainees are not POWs because they do not meet the criteria applicable to lawful combatants. |13| As even Petitioners recognize, the United States has found the detainees to be unlawful combatants. Nonetheless, the United States is providing the detainees with protections consistent with international humanitarian law.

In light of the fact that the status already has been clarified, precautionary measures are unnecessary.

B. Even if the detainees' legal status had not been clarified, precautionary measures are unnecessary because there is no risk, let alone an immediate risk, of irreparable harm to the detainees.

The Commission may request the Inter-American Court of Human Rights to take provisional measures in "serious and urgent cases" whenever "this becomes necessary to prevent irreparable injury to persons." Commission Statute, Art. 19 (c). The Commission's Rules, at Article 25, echo the requirement that precautionary measures are "to prevent irreparable harm to persons." Commission Rules, Article 25(1). Even if the Commission had authority to request precautionary measures in the present case, no such "irreparable harm" has been demonstrated.

The cases in which precautionary measures have been requested in the past have been cases where the life of the individual was at risk, such as those relating to the following: the death penalty. Case 9647 (United States), I.A.C.H.R. Ann. Rep. 147-84 (1986-87); where evidence was at risk of being destroyed preventing further investigation. Case 9619 (Honduras), I.A.C.H.R. Ann. Rep. 65-88 (1986-87); where asylum seekers with a reasonable fear of persecution were at risk of being sent back to the country they were fleeing. Ibid., and where persons had disappeared, Velasquez Rodriguez Case, Judgment, Inter- American Court of Human Rights, Series C No. 4, para 39 (1988).

The detainees at Guantanamo Bay are not facing any such immediate peril or irreparable harm. The detainees are being treated humanely. In fact, the United States is treating the detainees consistent with applicable international humanitarian law. As discussed in detail above, the United States "is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention]," See White House Fact Sheet, Feb.7, 2002, at 1. They are being provided three culturally sensitive meals a day, shelter, new clothing and shoes, showers, and sleeping pads and blankets. Id.

The United States also is giving the detainees excellent medical care. For example, detainees have received necessary routine medical care, prescription medication, eye examinations and corrective eyewear, and when serious health concerns require, even hospitalization and surgery. They are being given the opportunity to worship freely and many have been given copies of the Koran in their native language.

Petitioners, on the other hand, allege that the United States "treatment of the Guantanamo detainees violates norms of international humanitarian law relating to the treatment of individuals detained during times of international armed conflict". Petitioners' Request at 11. Petitioners state that "the United States' detention of the Guantanamo prisoners is arbitrary." Id, at 12. Petitioners claim that the detainees have been deprived of the right to have the legality of their detention ascertained without delay by a court. Id. at 12.

Petitioners have ignored or are unaware that enemy combatants -- whether lawful or unlawful combatants -- have no such right. An Article 5 determination in any case merely clarifies legal status and does not entitle a captured enemy combatant to be released from detention. Geneva Convention, Article 5. Furthermore, Article 5 by its terms does not require the convening of a tribunal to make a factual determination on whether or not all captured individuals are entitled to prisoner of war protection, treatment, or status. Rather, it requires a tribunal only in cases of doubt. Article 5 states:

    "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal" [emphasis added].

Id. Here, there is no doubt about the detainees' legal status. Accordingly, the United States has no obligation to convene any tribunal.

Under international humanitarian law, the detainees have no right to counsel or to have access to courts. If and when a detainee is charged with a crime, he will have the right to counsel and fundamental procedural safeguards. |14| In any event, to date, none of the detainees has been charged with any crime.

Petitioners also allege that the detainees are being held incommunicado. Petitioners' Request at 9, 11-12. In fact, however, detainees have communicated with each other, their families, representatives of the ICRC, and government officials from their country of nationality. Representatives of the ICRC have met with detainees individually and privately. Detainees have met and consulted with a U.S. Navy chaplain of Muslim faith. Petitioners' unsupported assertion that the detainees are being held incommunicado is simply not true.

In yet another example. Petitioners claim that the detainees are being subjected to "prolonged detention" in violation of their human rights. Petitioners' Request at 11-13. In fact, however, the detainees are being held lawfully as unlawful enemy combatants in connection with an ongoing armed conflict. They are not POWs, but even if they were, the United States would not have any obligation to release and repatriate them until at least the close of hostilities. See, e.g., Geneva Convention, Article 118. |15| Petitioners have mistakenly applied the peacetime human rights law concept of "prolonged detention" to the wartime humanitarian law concept of capture and detention of enemy combatants, lawful and unlawful.

Petitioners' misapplication of legal concepts and errors of fact render their claims groundless in fact and law. As a result, they have failed to state any cognizable claim of irreparable harm.

III. THE COMMISSION DOES NOT HAVE THE AUTHORITY TO MAKE REQUESTS FOR PRECAUTIONARY MEASURES TO NON-STATES PARTIES TO THE AMERICAN CONVENTION, SUCH AS THE UNITED STATES, AS IT HAS DONE IN THIS CASE.

As argued in Section I, the Commission lacks jurisdictional competence in this case. Even if the Commission had such competence, it has the authority only to make recommendations. It has no authority to make requests for precautionary measures.

The practice of requesting precautionary measures is based on Article 25 of the Commission's Rules of Procedure, which reads:

    1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

Commission Rules, Article 25.

The Statute of the Commission, however, refers to precautionary measures only in the context of States Parties to the American Convention on Human Rights. The Commission's Statute states, at Article 19, that the Commission has the power:

    c. to request the Inter-American Court of Human Rights to take such provisional measures .as it considers appropriate in serious and urgent cases which have not been submitted to it for consideration, whenever this becomes necessary to prevent irreparable injury to persons.

Commission's Statute, Article 19.

For non-States Parties to the American Convention, there is no parallel provision either in the Commission's organic document, the American Convention on Human Rights, or the Commission Statute, which would provide specific authority for the Commission to request precautionary measures. Rather Article 20 of the Commission Statute provides for the Commission to have the power:

    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 (emphasis added).

Commission's Statute, Article 20.

Where the OAS thought it appropriate for one of its bodies to be authorized to request provisional or precautionary measures, it expressly created such authority. For instance, article 63 of the American Convention explicitly gives the Inter-American Court of Human Rights the power to "adept such provisional measures as it deems pertinent" in cases of "extreme gravity and urgency, and when deemed necessary to avoid irreparable damage to persons.'" American Convention, Art. 63(2). Moreover, the American Convention gives the Commission the authority to request that the Court take such measures. See id. ("With respect to a case not yet submitted to the Court, it may act at the request of the Commission.")

Indeed, that authority is explicitly delineated in the Commission's Statute, article 19, for States Farcies to the American Convention ("to request the Inter-American Court of Human Rights to take . . . provisional measures. . . ."). Compare, e.g.. Commission's Statute, Article 19 (authorizing the Commission to request the Inter-American Court of Human Rights to take such provisional measures as it deems necessary with respect to States Parties of the American Convention) with Commission's Statute, Article 20 (authorizing the Commission to make recommendations with respect to Non-Parties to the American Convention).

Notably, therefore, the American Convention does not vest the authority to request precautionary measures in the Commission itself, nor does it provide a basis for the Commission to request the Court to take such measures with respect to non-States Parties to the American Convention. So, while the OAS expressly gave the Commission the. authority to request that the Court take provisional measures vis-a-vis States Parties to the American Convention, it did not give the Commission the same such authority vis-a-vis a State such as the United States, which is not a party to the Convention.

In this case, the United States is not party to the American Convention on Human Rights, or to any other Convention that would confer upon the Commission the authority to request that precautionary measures be taken by the United States. Because the United States is not party to the American Convention, the Commission has only the authority "to make recommendations ... to bring about more effective observance of fundamental human rights." See id. Nothing in the Commission's Statute provides the Commission with the authority to request precautionary measures of the United States. Absent such authority, the Commission may only make recommendations with respect to the United States.

In sum, the Commission lacks the requisite authority to request precautionary measures of the United States.

IV. CONCLUSION

The United States respectfully submits that the Commission has no basis in fact or law upon which it may request precautionary measures of the United States in this case.

This is because (1) the Commission lacks the requisite jurisdictional competence to apply international humanitarian law, particularly the Geneva Convention, as well as customary international humanitarian law; (2) even if the Commission had the jurisdictional competence, precautionary measures in this case are neither necessary nor appropriate,- and (3) the Commission lacks the authority to request precautionary measures with respect to States such as the United States, which are not party to the American Convention on Human Rights.

For the forgoing reasons, the United States respectfully asks the Commission to rescind its request for precautionary measures,

Fact Sheet

Status of Detainees at Guantanamo

United States Policy. - The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949. -

The President has determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida detainees. - Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As such, its members are not entitled to POW status. - Although we never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention. Under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs. -

Therefore, neither the Taliban nor al-Qaida detainees are entitled to POW status. ? Even though the detainees are not entitled to POW privileges, they will be provided many POW privileges as a matter of policy.

All detainees at Guantanamo are being provided: - three meals a day that meet Muslim dietary laws - water - medical care - clothing and shoes - shelter - showers - soap and toilet articles - foam sleeping pads and blankets - towels and washcloths - the opportunity to worship - correspondence materials, and the means to send mail -the ability to receive packages of food and clothing, subject to security screening

The detainees will not be subjected to physical or mental abuse or cruel treatment. The International Committee of the Red Cross, has visited and will continue to be able to visit the detainees privately. The detainees will be permitted to raise concerns about their conditions and we will attempt to address those concerns consistent with security.

Housing. We are building facilities in Guantanamo more appropriate for housing the detainees on a long-term basis. The detainees now at Guantanamo are being housed in temporary open-air shelters until these more long-term facilities can be arranged. Their current shelters are reasonable in light of the serious security risk posed by these detainees and the mild climate of Cuba.

POW Privileges the Detainees will not receive. The detainees will receive much of the treatment normally afforded to POWs by the Third Geneva Convention. However, the detainees will not receive some of the specific privileges afforded to POWs, including:

- access to a canteen to purchase food, soap, and tobacco - a monthly advance of pay - the ability to have and consult personal financial accounts - the ability to receive scientific equipment, musical instruments, or sports outfits

Many detainees at Guantanamo pose a severe security risk to those responsible for guarding them and to each other. Some of these individuals demonstrated how dangerous they are in uprisings at Mazar-e-Sharif and in Pakistan. The United States must take into account the need for security in establishing the conditions for detention at Guantanamo.

Background on Geneva Conventions. The Third Geneva Convention of 1949 is an international treaty designed to protect prisoners of war from inhumane treatment at the hands of their captors in conflicts covered by the Convention. It is among four treaties concluded in the wake of WWII to reduce the human suffering caused by war. These four treaties provide protections for four different classes of people: the military wounded and sick in land conflicts; the military wounded, sick and shipwrecked in conflicts at sea; military persons and civilians accompanying the armed forces in the field who are captured and qualify as prisoners of war; and civilian non-combatants who are interned or otherwise found in the hands of a party (e.g. in a military occupation) during an armed conflict.

Documentation Note: This communication sent to:

  • Jennifer M. Green, Michael Ratner, Bill Goodman, Anthony DiCaprio, and Beth Stephens, from the Center for Constitutional Rights;
  • Roxanna Altholz from the Center for Justice and International Law;
  • Prof. Richard J. Wilson;
  • Judith Chompsky;
  • Catherine Powell et al., Human Rights Clinic at Columbia University Law School

Notes:

1. The term international humanitarian law, as used herein, is synonymous with the law of war or the law of armed conflict. [Back]

2. Geneva Convention Relative to the Treatment of Prisoners of War of August 12. 1949, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.M.T.S. 135 (1949). [Back]

3. See, e.g., Secretary Rumsfeld's statement that the detainees "are not POWs" and instead are "unlawful combatants". Gerry J. Gilmore, Rumsfeld Visits, Thanks U.S. Troops at Camp X-Ray in Cuba, American Forces Press Service, Jan. 27, 2002, at <http://www.defenselink.mil/news/Jan2002/n01272002_200201271.html> (visited April 11, 2002). [Back]

4. The U.S. Supreme Court, citing numerous authoritative international sources, has held that unlawful combatants "are subject to capture and detention, [as well as] trial and punishment by military tribunals for acts which render their belligerency unlawful." See Ex parte Quirin, 317 U.S. 1, 31 (1942) (citing GREAT BRITAIN, WAR OFFICE, MANUAL OF MILITARY, ch. xiv, §§ 445-451; REGOLAMENTO DI SERVIZIO IN GUERRA § 133, 3 LEGGI E DECRETI DEL REGNO D'ITALIA (1896) 3184; 7 MOOR, DIGEST OF INTERNATIONAL LAW, § 1109; 2 HYDE, INTERNATIONAL LAW, §§ 654, 652; 2 HALLECK, INTERNATIONAL LAW, (4th Ed. 1908) § 4; 2 OPPENHEIM, INTERNATIONAL LAW, § 254; HALL, INTERNATIONAL LAW, §§ 127, 135; BATY & MORGAN, WAR, ITS CONDUCT AND LEGAL RESULTS (1915) 172; BLUNTSCHI, DROIT INTERNATIONAL, §§ 570 bis.). [Back]

5. Petitioners also assert that the U.S. position is that none of the detainees is "subject to the Geneva Conventions". Petitioners Request at 7. This is factually inaccurate. As previously mentioned, President Bush's Press Secretary has stated publicly that the Geneva Convention "applies to the Taliban detainees . . . . " White House Fact Sheet, Feb. 7, 2002, at 1. [Back]

6. See American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1969), arts. 34-51. [Back]

7. See American Declaration on the Rights and Duties of Man, adopted at Bogota by the Ninth International Conference of States, Mar. 30-May 2, 1946, OAS Res. XXX, reprinted in Basic Documents 15-21. [Back]

8. See Advisory Opinion of July 8, 1996, 35 I.L.M. 809, 1343 at para. 25 (1996). [Back]

9. The United States cakes no position with respect to countries that are States Parties to the American Convent ion because that issue raises separate and complex legal issues of jurisdiction and treaty interpretation not relevant to this case. [Back]

10. It has been and continues to be the United States view that Coard was decided incorrectly as a matter of fact and law, in part because the Commission applied international humanitarian law without the jurisdictional competence to do so, a view that is reinforced by the decision of the Inter-American Court in the Las Palmeras Case, as discussed previously. As stated above, the Inter-American Court held in Las Palmeras that the competence of the Court for parties to the American Convention (which the United States is not) extends only "to determin[ing] whether the acts or the norms of the States are compatible with the [American] Convention, and not with the 1949 Geneva Conventions." Las Palmeras Case, Judgment No. 67, at para. 33. Here, the Commission has violated that principle by expounding upon specific articles and provisions of the 1949 Geneva Convention on POWs. [Back]

11. 75 U.N.T.S. 287-417 (1950). [Back]

12. The underlying principle that a State has the authority to detain combatants for the duration of hostilities certainly is not diminished by the mere fact that a combatant is acting unlawfully, as opposed to lawfully. Geneva Convention Article 118, which sets forth release and repatriation obligations and conditions with respect to lawful combatants, i.e., POWs, reflects the international humanitarian law principle that combatants may be detained for at least the duration of hostilities. The authority to detain unlawful combatants is at a minimum equal to that with respect to lawful combatants. To afford rights to unlawful combatants greater than those afforded to lawful combatants would be entirely inconsistent with the letter and spirit of the Geneva Convention, as well as customary international humanitarian law. In other words, a State engaged in armed conflict has at a minimum every right to capture and detain combatants acting unlawfully that it otherwise would have if the combatants were acting lawfully. [Back]

13. Because the Commission lacks the authority to interpret and apply the relevant humanitarian law, the United States declines to address the merits of its underlying status determinations, but reserves the right to do so at a later time. That said, the United States notes that Article 5 tribunals are not required where, as here, there is no doubt about the status of the detainees. See Geneva Contention, Article 5 ("Should any doubt arise [regarding statue] . . . [detainees] shall enjoy the protection of the present Convention until such time as their Statue has been determined by a competent tribunal."). Even if there were doubt, any dispute regarding their status would not be for the Commission to resolve -- not only due to the Commission's limited jurisdictional competence, but also as a result of the terms of the Geneva Convention, which plainly states that "alleged violation[s] of the Convention" shall be dealt with "in a manner to be decided between the interested Parties." Geneva Convention, Article 132. No party to the Convention has alleged a violation has occurred or expressed an interest in even discussing with the United States any alleged violation. [Back]

14. See, e.g., Department of Defense, Military Commission Order No. 1 (March 21. 2002), <http;//www.defeneselink.mil/news/March2002/d20020321ord.pdf> (visited April 5. 2002). [Back]

15. See note 12, supra at 24. [Back]

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