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United States of America
1857. By letter dated 2 July 2004, sent jointly with the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the right to health, the Special Rapporteur, mindful of the 28 June 2004 decision of the United States Supreme Court, which stated that United States courts have jurisdiction to consider challenges to the legality of the detention of persons incarcerated at the United States Naval Base in Guantánamo Bay, Cuba, and the announcement that the first military tribunal was formed on 29 June 2004, notified the Government that he had received allegations regarding Feroz Ali Abbasi, a United Kingdom national, aged 23; Moazzam Begg, a United Kingdom/Pakistani national, aged 35; David Hicks, an Australian national, aged 28; Salim Ahmed Hamdan, a Yemeni national, aged 34; Ali Hamza Ahmed Sulayman al Bahlul, a Yemeni national, and Ibrahim Ahmed Mahmoud al Qosi, a Sudanese national. According to the allegations received, it was announced on 3 July 2003 that the six men were made subject to the Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, of 13 November 2001. They were subsequently transferred to Camp Echo, the part of the Naval Base in Guantánamo Bay where pre-commission detainees, or those designated to face a military commission, are held. Salim Ahmed Hamdan, in custody since November 2001, was transferred there in early December 2003, while Feroz Abbasi and Moazzam Begg are believed to have been held there longer. Ali Hamza Ahmed Sulayman al Bahlul, Ibrahim Ahmed Mahmoud al Qosi and David Hicks, have been charged with conspiracy to commit war crimes. No dates for their trials have been set, but David Hicks may face a military commission in August. At Camp Echo each detainee is held in solitary confinement for up to 24 hours per day in a windowless air-conditioned cell. The cells are approximately 3m by 3m by 5m, divided into living quarters with a bed and small toilet, and a section for a small table. One psychiatrist, who visited Guantánamo Bay in 2003 at the invitation of the Department of Defense, stated that the solitary confinement places the detainees at significant risk for future psychiatric deterioration, possibly including the development of irreversible psychiatric symptoms. The International Committee of the Red Cross has stated that it has observed a worrying deterioration in the psychological health of a large number of detainees. Moreover, the isolation and conditions of confinement may ultimately make these prisoners susceptible to mental coercion and false confessions. Therefore there are concerns that guilty pleas or incriminating testimony could result from the conditions in which the detainees are held. According to the psychiatrist’s declaration which was filed in federal court, Salim Ahmed Hamdan has said that he has considered confessing falsely to ameliorate his situation. There is concern that the military commissions, whose sentences cannot be appealed in any other court and include the death penalty (i.e. sections 7 and 4 of the Military Order, 2001, respectively), will allow for the admission of such evidence without regard to international standards of due process. According to the released memorandum from the Department of Justice to the Department of Defense dated 26 February 2002, incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the Miranda warnings [the US Supreme Court decision concerning the rights of suspects].
1858. By letter dated 30 November 2004, the Special Rapporteur notified the Government that he had received allegations concerning execution by lethal injection in North Carolina. According to the state statute (NCGS 15-187 and 15-188) the sentence of lethal injection requires the use of two drugs, an ultrashort-acting barbiturate (i.e. a sedative to render the person unconscious) and a chemical paralytic agent (i.e. paralyzes the voluntary muscles). The North Carolina Department of Corrections reportedly uses sodium pentobarbital as the sedative, and pancuronium bromide as the paralytic agent. The use of pancuronium bromide, which paralyzes all voluntary muscles, does not affect sensation, consciousness, cognition or the ability to feel pain and suffocation. A third drug, potassium chloride—not authorized under the statute—which causes the heart to stop, is also used, reportedly to expedite death. While the normally high doses of sodium pentobarbital that is administered to a person renders very small the chances of consciousness, toxicology reports indicate a great variation in the post-mortem barbiturate levels in persons following executions in North Carolina; a 140-fold variation in doses, from 2.6mg/L (i.e. October 1999 execution of Arthur Boyd) to only “trace” levels (i.e. December 2002 execution of Desmond Carter). The executions of William Jones, Henry Hunt, Joseph Bates, Edward Hartman, John Daniels, Joseph Keel, and Raymond Rowsey, occurring in 2003 and 2004, do not report the post-mortem levels of the sedative. If the sedative is not properly administered in a dose sufficient to cause death or at least the loss of consciousness for the duration of the execution procedure, the use of the pancuronium bromide places the person at risk for consciously experiencing paralysis, suffocation and the pain of the injection of potassium chloride; it essentially masks the suffering of the person during the execution and gives the appearance of tranquillity. Therefore it is reported that this drug has no effect on the efficacy of the lethal injection nor does it render the execution more humane. Moreover, it is alleged that in North Carolina the drugs are administered successively without delay (i.e. without a saline flush between the administration of each drug), which may cause the sodium pentothal to crystallize upon contact with the pancuronium bromide, and result in extreme pain during the procedure.
Urgent appeals
1859. On 12 March 2004, the Special Rapporteur sent an urgent appeal concerning Qutaiba Taha ‘Abd al-Hamid Hamdani, a 24-year-old graduate of Basra University who works in an information technology office; ‘Uday Nasser Badr, aged 28; Yasser Hamad, a 30-year-old teacher at the Grand Mosque, and Firas ‘Imad. According to the allegations received, Qutaiba Taha ‘Abd al-Hamid Hamdani was arrested with his colleague ‘Uday Nasser Badr by members of the "Intelligence Directorate" on 22 February 2004 in Hay al- Risala. Yasser Hamad was arrested at his home in the al-Mishraq district on 25 February. Firas ‘Imad was arrested at his home in Hay al-Risala on the same day. The four men are held in incommunicado detention at the "Intelligence Directorate" in Basra; Basra being currently under the control of the United Kingdom military. The "Intelligence Directorate" was formed a few months ago by the Badr organization, the armed wing of the political group, the Supreme Council for the Islamic Revolution in Iraq. Several people are said to have been held incommunicado and tortured at the directorate’s headquarters in Basra. The methods of torture reportedly include lashing on various parts of the body, specifically on the back with an iron stick inserted inside a plastic pipe.
1860. On 27 May 2004, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on extrajudicial, summary or arbitrary executions, regarding about 22 ethnic Uighurs of Chinese nationality. According to the allegations received, they are held at Camp 4 at the military base in Guantánamo Bay, and are at risk of imminent forcible return to China. The detainees were allegedly captured in the context of the armed conflict in Afghanistan and transferred to United States custody around January 2002. A delegation from the Government of China visited Guantánamo Bay in September 2002 and participated in interrogations of the ethnic-Uighur detainees. The detainees were subjected to intimidation and threats, and to “stress and duress” techniques such as environmental manipulation, forced sitting for many hours, and sleep deprivation, some of which were carried out on the instruction of the Chinese delegation.
Follow-up to previously transmitted communications
1861. By letter dated 3 March 2004, the Government provided information concerning:
1862. Khaled Ben Mustafa, Nizar Sassi, Ridouane Khalid, and Mourad Benchellali (E/CN.4/2004/56/Add.1, para. 1819). The Government informed that operational and security concerns prevent the confirmation of the identity of individuals detatained at the Naval Base in Guantánamo Bay, except to their governments of nationality and the International Committee of the Red Cross. The Government has-made clear that it does not permit, tolerate or condone torture by its employees under any circumstances. Torture is forbidden under the customary law of war and by the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, as ratified by the United States in 1994. It is also prohibited by the federal anti-torture statute (Title 18, Part I, Chapter 113C of the United States Code). Misconduct by members of the United States Armed Forces is punishable under the Uniform Code of Military Justice, as well as other federal statutes. United States policy is to treat the detainees at Guantánamo Bay in a manner consistent with article 16 of the Convention. Article 16 provides, "Each State Party shall undertake to prevent ... other acts of cruel, inhuman, or degrading treatment or, punishment which do not amount to torture." Because the terms in article 16 are not defined, the United States ratified the Convention with a reservation to this provision. This reservation supplies an important definition for the term "cruel, inhuman, or degrading treatment or punishment." Specifically, this reservation provides that "the United States considers itself bound by the obligation under article 16 to prevent cruel, inhuman or degrading treatment or punishment, only in so far as the term cruel, inhuman or degrading treatment or punishment, means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." Although the Government cannot comment on specific cases or practices, credible allegations of illegal conduct by United States personnel will be investigated and, as appropriate, reported to proper authorities. Should any investigation indicate that illegal conduct has occurred, the appropriate authorities would have a duty to take action to ensure that any individuals responsible are held accountable in accordance with the law. United States military personnel are well trained, disciplined, and informed on the laws and customs of war. United States forces undergo extensive training and education not only prior to any military operation, but also during and after military operations. United States military personnel have a duty and commitment to prevent violations of the law of war. Department of Defense Directive 5100.77 requires that all possible, suspected, or alleged violations of the law of war committed by United States persons be promptly reported, thoroughly investigated, and, when appropriate, remedied by corrective action. Instances of misconduct are rare among United States military personnel taking part in military operations. United States forces are subject to the Uniform Code of Military Justice, which contains penalties for many military offenses. These penalties are more severe if the offenses are committed during an armed conflict. The United States is acting well within its rights under the customary law of war in detaining enemy combatants for the duration of hostilities, without trial or access to lawyers. The war with Al-Qaida and its affiliates continues, as demonstrated by their continuing attacks around the world. Thousands have been killed in these attacks thus far. The Security Council recognized the right of self-defence to respond to the attacks of 11 September 2001, as did members of the North Atlantic Treaty Organization, the Inter- American Treaty of Reciprocal Assistance (Rio Treaty) and the Security Treaty between Australia, New Zealand and the United States of America (ANZUS), all of which invoked treaty clauses regarding collective self-defence following those attacks. The right of the United States to use armed force in self-defence inevitably includes the legal authority to capture and detain as enemy combatants those terrorists who take up arms against us during ongoing hostilities and those acting in support of enemy forces engaged in continuing armed attacks. The United States has treated, and will continue to treat, enemy combatants humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Convention relative to the Treatment of Prisoners of War. There is also the need for security precautions by military personnel transporting and guarding the detainees in light of the serious threat of physical harm involved. The United States affirms its commitment to the elimination of torture worldwide.
1863. Approximately 100 detainees of different nationalities (ibid., para. 1821). The Government informed that it has accelerated the release and transfer of some detainees from Guantánamo Bay to their countries of nationality and anticipates more releases and transfers in the near future. To date, approximately 90 detainees have been returned to their countries of nationality. The United States does not expel, return, or extradite individuals to countries where it believes it is more likely than not that they will be tortured or subjected to persecution. The United States seeks specific assurances from the Government concerned, particularly of humane treatment, before transfer of a detainee from Guantánamo Bay and would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that, those assurances were not being honoured.
1864. By letter dated 8 April 2004, the Government provided information concerning the high rate of inmate on inmate sexual abuse in prisons (E/CN.4/2002/76/Add.1, para. 1709). The Government informed that the Special Litigation Section of the Department of Justice protects the constitutional and federal statutory rights of persons confined in certain institutions owned or operated by State and local governments. These institutions include nursing homes, juvenile correctional facilities, adult prisons, jails and facilities for individuals who are mentally ill or developmentally disabled,. The governing statute, the Civil Rights of Institutionalized Persons Act (CRIPA) empowers the Department of Justice to investigate institutional conditions and, among other matters, to enforce Title III of the Civil Rights Act of 1964, which prohibits discrimination in public facilities on the basis of race, religion, or national origin. Staff at the Special Litigation Section is involved in a broad array of activities to vindicate the federal rights of detained and institutionalized persons. The Section investigates and brings civil actions to eliminate patterns or practices of law enforcement misconduct. The Section is currently investigating complaints against law enforcement offices and has filed civil suits resulting in court-enforceable agreements to eliminate systemic misconduct with several law enforcement agencies. The Section has been successful in resolving the vast majority of CRIPA investigations that have uncovered unlawful conditions by obtaining voluntary correction or a settlement designed to improve conditions and the provision of services. In the past several years, for example, the United States has entered into consent decrees to obtain remedies for deficient conditions at numerous prisons and local jails around the country, including a Montana State men’s prison; facilities in the Territory of Guam and the Commonwealth of the Northern Mariana Islands; and jails in Maricopa County and Gila County, Arizona, and Clay County and Dooly County, Georgia. Of particular interest, in March 1998 the United States entered into a comprehensive settlement agreement with the State of Georgia to resolve the UnitedStates investigation of unlawful conditions of confinement at 31 juvenile correctional facilities in the State. The settlement required the State to develop and implement remedial plans in numerous areas, including protection from harm and provision of medical care and mental health care. In December 1997, the United States similarly entered into a consent decree with the Commonwealth of Puerto Rico to resolve the United States lawsuit challenging conditions of confinement in 20 juvenile facilities in Puerto Rico. The Civil Rights Division of the Department of Justice has launched more than 250 investigations into State and local government institutions since the enactment of CRIPA in 1980. As several of the cases raised by the Special Rapporteur involve allegations of prison rape, it is relevant to note that on 20 February 2003, the President signed an appropriations bill into law, committing $13 million for implementation of prison rape prevention and prosecution programmes including: a statistical review and analysis of the incidence and effects of prison rape; the establishment of a national clearing house for provision of information and assistance for federal, State, and local officials; grants to States, units of local government, prisons, and prison systems for prison rape prevention and prosecution efforts; and the development of national standards for enhancing the detection, prevention, reduction, and punishment of prison rape (Consolidated Appropriations Resolution, 2003). In addition, on 4 September 2003, President George W. Bush signed into law S. 1435, the Prison Rape Elimination Act of 2003. In furtherance of the principles set forth in the Consolidated Appropriations Resolution, the Prison Rape Elimination Act provides for analysis of the incidence and effects of prison rape in federal, State and local institutions, and for information, resources, recommendations and funding to protect individuals from prison rape. A National Prison Rape Reduction Commission was also established pursuant to the Act, the purpose of which is to carry out a comprehensive legal and factual study of the penalogical, physical, mental, medical, social and economic impacts of prison rape, and to offer recommendations for enhancing detection, prevention, reduction and punishment of prison rape. The Government informed that in many of the cases, remedies have been provided through judicial or other recourse, including substantial monetary compensation in several cases. In this regard, United States law provides various avenues for individuals seeking redress, including inter alia filing criminal charges; which can lead to investigation and possible prosecution of the offender; bringing a civil action in federal or State court under the federal civil rights statute, directly against State or local officials for money damages or injunctive relief; seeking damages from the Government of the United States for negligence of federal officials under the Federal Tort Claims Act; suing federal officials directly for "constitutional torts" under a Bivens action (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)); and pursuing administrative remedies, including proceedings before civilian complaint review boards, to review alleged police misconduct. The Government provided information concerning:
1865. Robin Lucas (ibid., para. 1711). The Government informed that she alleges that she was subjected to "a pattern of serious sexual assaults, sexual harassment and unwelcome sexual advances orchestrated and facilitated by prison officials" in August and September 1995. This matter was thoroughly investigated by the Criminal Section of the Department of Justice and the criminal case was closed due to the absence of a finding of sufficient credible information to establish a prosecutable violation of federal law. On 13 August 1996, Robin Lucas and two other female inmates of the Federal Detention Centre in Pleasanton, California, filed suit against the United States Department of Justice Bureau of Prisons. Pursuant to the settlement agreement reached in February 1998, the Bureau of Prisons committed to a number of national and local reforms. These reforms include, among others, the establishment of a confidential mechanism for inmates to report sexual assaults, the discontinuation of housing women in the men’s facility where Lucas was housed, and the establishment of a national training programme to prevent the sexual assault of female prisoners. In addition, the plaintiffs received $500,000 in damages.
1866. Rodney Hulin, Jr. (ibid., para. 1712). The Government informed that the alleged rapists were fellow prison inmates, and there is no allegation of criminal involvement by any prison official in either the alleged rapes or Rodney Hulin Jr.’s suicide. As such, this information does not disclose a prosecutable violation by public officials of federal criminal civil rights statutes, and the Department of Justice is unable to authorize an investigation.
1867. Gary Adkins (ibid., para. 1713). The Government informed that according to press reports, in October 1999 officers at the Wayne County Jail in West Virginia are alleged to have shackled and beaten Gary Adkins and refused him medical assistance. The two officers accused resigned following a separate incident that involved allegations of physical, sexual and mental abuse of female inmates. A number of civil suits were filed against the officers, many of which were settled. Press reports indicate that Gary Adkins’ lawsuit resulted in a settlement for $75,000. There is an ongoing investigation by the Federal Bureau of Investigation into this matter.
1868. Frederick Mason (ibid., para. 1714). The Government informed that in August 2000, he filed a lawsuit against the Chicago Police Department and two officers, alleging that on 19 July 2000, he was sodomized and called racist and anti-gay names by the two officers. The Office of Professional Standards investigated this case. The Chicago Police Superintendent indicated that a medical examination on 20 July 2000, did not support Frederick Mason’s allegations and that even the most basic facts do not support his allegations of physical abuse. His civil suit was settled in June 2002 for $20,000. The City of Chicago has denied all wrongdoing and stated that there was no evidence to support the removal of the officers from the police force. The City also claims the settlement was merely for nuisance value. According to press reports, on 6 September 2002, the two police officers involved counter-sued Frederick Mason for $20,000, claiming malicious prosecution. The Department of Justice Criminal Section closed its file in this matter after reviewing the Federal Bureau of Investigation investigation report and concluding that the matter lacked prosecutorial merit under federal criminal civil rights statutes.
1869. Kentin Waits (ibid., para. 1715). The Government informed that according to press reports, in July 2000 he argued with a Chicago police officer and shortly thereafter returned and squirted the officer with a water bottle. The following morning approximately seven officers arrested him at his home and held him at the police station for 22 hours, subjecting him to physical and anti-gay verbal abuse. In May 2001, Kentin Waits filed a lawsuit against the city, the chief of the office of Professional Standards, and certain unidentified officers. Press reports also indicated that in November 2002, after a jury trial, Waits was awarded $15,000 in compensatory damages and $2 million in punitive damages. Upon review, the judge reduced the jury’s punitive award to $45,000.
1870. Jeffrey Lyons (ibid., para. 1716). The Government informed that in November 2000, according to press reports, Jeffrey Lyons was physically and verbally assaulted by a group of off-duty Chicago police officers. This matter was thoroughly investigated by the Department of Justice Criminal Section, and the criminal case was closed due to the absence of a finding of sufficient credible information to establish a prosecutable violation of federal law. In January 2001, Lyons filed a civil lawsuit against the city and three officers. The federal judge granted summary judgment in February 2003 on all counts for the City of Chicago, the on-duty police officers who subsequently arrived on the scene, and the owners of the bar outside of which the incident took place. The battery claim against the off-duty police officers was not dismissed, however, and a settlement between the parties was reached. Separate settlements were also entered into between Jeffrey Lyons and the City, and the bar owners, in order to avoid appeals on the matters. The City of Chicago agreed to pay him $24,000. The total settlement package is believed to be around $64,000.
1871. Pine Hills School Youth Correctional Facility (ibid., para. 1717). The Government informed that the allegations of indiscriminate use of pepper spray on Native American residents of Pine Hills were brought to the attention of the Montana Senate Judiciary Committee in 2002. A Bill to ban the use of pepper spray at such facilities, and proposed legislation SB 452 was fully debated. Pine Hill administrators participated in the debate and presented information on the progress they have made in running the facility. The Special Litigation Section of the Department of Justice closed a preliminary investigation into this matter after corrective action was taken by the State of Montana.
1872. By letter dated 21 October 2004, the Government provided information concerning anti-war protestors (E/CN.4/2004/56/Add.1, para. 1812). The Government informed that several protestors were arrested at the scene of the demonstrations, but none were held overnight. The Alameda County District Attorney’s office pursued misdemeanour charges (i.e. failure to disperse, interfering with a business and creating a public nuisance) against 25 of the arrested anti-war protesters. Some supporters of the defendants attended several public, pre-trial hearings, while others protested peacefully outside the courthouse. Charges were dropped against one defendant on 10 March 2004. At a pre-trial hearing on 22 April 2004, at the request of the Alameda County prosecutors, the judge dismissed all charges against the remaining 24 defendants. While continuing to deny any wrongdoing, the Oakland Police Department has adopted new crowd-control procedures, including new restrictions on the use of non-lethal munitions, and greater effort to coordinate with protest organizers before an event. Meanwhile, some of the protesters continue to seek redress for the alleged misconduct of the local police through a civil lawsuit in federal court. Lawyers for the protestors and the City of Oakland are engaged in settlement negotiations.
Observations
1873. The Special Rapporteur draws attention to a statement issued on 3 May 2004,
concerning reports of torture and other cruel, inhuman or degrading treatment of Iraqi
detainees by United States and United Kingdom forces serving under the Coalition
Provisional Authority. He called upon all countries with forces serving in Iraq to take prompt
and effective steps to investigate, prosecute and impose appropriate sanctions on any persons
guilty of the alleged violations, as well as provide an effective remedy and adequate
reparation for the victims of these abuses. In this connection, the Special Rapporteur also
draws attention to requests for visits, made jointly with other Commission on Human Rights
experts in January and June 2004, to places of detention of alleged terrorist suspects,
including Afghanistan, Iraq and Guantánamo Bay Naval Base (E/CN.4/2005/62, para. 6).
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United Kingdom of Great Britain and Northern Ireland
Uzbekistan
This report has been published by Equipo Nizkor and Derechos Human Rights on July 27, 2005.