News Release Issued by the International Secretariat of Amnesty International
USA : Guantánamo detainees - the legal black hole deepens
AI-index: AMR 51/038/2003
12/03/2003
Yesterday's federal court ruling on the Guantánamo detainees it will cause further damage to the international
reputation of the USA and to fundamental human rights standards agreed to across the world, Amnesty International said
today.
"It is a basic principle of international law that any detainee has the right to test the lawfulness of his or her
detention in a court of law", Amnesty International said. "By putting these detainees into a legal black hole , the US
administration is supporting a world where arbitrary unchallengeable detention becomes acceptable".
More than 600 detainees of more than 40 nationalities are being held without charge or trial in the US Naval Base in
Guantánamo Bay in Cuba. Some have been held there for more than a year, with no access to lawyers, relatives, or the
courts. This situation of indefinite detention is inflicting cruelty on the detainees and their families.
"There can be little doubt that the US Government would not countenance such treatment of its own citizens by another
country", Amnesty International added.
By detaining people at the Guantánamo Bay naval base, the US Government appears to have effectively removed them from
the reach of the US courts because US jurisprudence has restricted the applicability of the Constitution in the case of
federal government actions outside the USA concerning foreign nationals.
Yesterday, the US Court of Appeals for the District of Columbia Circuit ruled that the detainees may not challenge their
detentions in US federal court because Cuba has sovereignty over Guantánamo Bay and therefore the prisoners are not
protected by the US Constitution.
However, international law, including the provisions of the International Covenant on Civil and Political Rights
(ICCPR), which the USA ratified in 1992, applies to persons subject to the jurisdiction of a state party even abroad.
"We recall the US Government's repeated assertions since 11 September 2001 that it will not relax its commitment to
international human rights standards and the rule of law", Amnesty International said. "Those words ring more and more
hollow each day that the Guantánamo detainees are denied their fundamental rights".
Background
In a 61-page Memorandum sent to the US Government in April 2002, Amnesty International pointed out, among other things,
that:
Article 2(1) of the ICCPR states: "Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind", including on the basis of national origin. The Human Rights Committee, the expert body
established by the ICCPR to oversee implementation of the treaty, has made it clear that the Covenant applies to places
outside the territory of a state party under its control.
Article 9(4) of the ICCPR states: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful." The Human Rights Committee has stressed that this "important
guarantee... applies to all persons deprived of their liberty by arrest or detention". Indeed, it has stated that this
right is non-derogable, even in states of emergency. When the USA ratified the ICCPR in 1992, it declared that: "it is
the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any
restrictions or limitations on the exercise of the rights recognized and protected by the terms of the Covenant".
Amnesty International has had no response to its Memorandum, or to numerous communications sent since. It has also not
had any response or acknowledgement to its repeated requests to visit the Guantánamo detainees and officials overseeing
them.
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