A/HRC/WGAD/2014/50

GE.15-02484 (E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-first session (17–21 November 2014)

No. 50/2014 (United States of America and Cuba)

Communication addressed to the Government of the United States of

America on 25 August 2014 and to the Government of Cuba on

15 September 2014

concerning Mustafa al Hawsawi

The Government of the United States of America replied to the communication of

25 August 2014 on 29 September and 14 November 2014. The Government of Cuba

has not responded to the communication of 15 September 2014.

The United States of America is a party to the International Covenant on Civil and

Political Rights, by accession on 8 June 1992.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. The mandate was extended for a further three years in

resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

United Nations

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General Assembly

Distr.: General

13 February 2015

Original: English

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Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The case has been reported to the Working Group on Arbitrary Detention as follows:

4.

Mustafa al Hawsawi, aged 45, is a native of Jeddah, Saudi Arabia. It is reported that

on 1 March 2003, Mr. al Hawsawi was arrested during a raid in Rawalpindi, Pakistan. He

was then imprisoned by government agents of the United States of America at undisclosed

and classified locations, until his transfer to a top-secret prison at the United States Naval

Base at Guantanamo Bay, Cuba, on 6 September 2006.

5.

According to the source, the Government of the United States has acknowledged

that, prior to his arrival at Guantanamo, Mr. al Hawsawi was part of the Central Intelligence

Agency rendition, detention, and interrogation programme, which has now become known

as the torture programme. Given that the Government of the United States has classified the

details of the programme, Mr. al Hawsawi and his legal representatives are prohibited from

revealing any circumstances of Mr. al Hawsawi’s capture, including the identities of the

personnel who carried out the arrest and subsequent detention, and any details of torture or

other cruel, degrading or inhuman treatment to which he may have been subjected during

that time.

6.

Mr. al Hawsawi’s legal representatives have been prohibited from meeting with him

at his place of detention.

7.

On 21 March 2007, Mr. al Hawsawi was brought before a Combatant Status Review

Tribunal (CSRT). The Tribunal met for the purpose of determining whether Mr. al

Hawsawi met the criteria to be designated as an enemy combatant against the United States

of America or its coalition partners. The source reports that, instead of being assigned an

attorney, Mr. al Hawsawi was assigned a one-time personal representative who was a

military officer without any legal training.

8.

The tribunal hearing lasted one hour and nine minutes, after which time it concluded

that Mr. al Hawsawi met the definition of an unlawful enemy combatant, and that he should

remain in detention. The source states that the tribunal failed to provide basic procedural

protections, such as the exclusion of coerced statements and unreliable hearsay evidence

and the ability to cross-examine witnesses, and that the Government’s evidence was

considered to be presumptively correct.

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9.

The source reports that Mr. al Hawsawi continued to be held without charges or

legal representation until April 2008, when he was assigned a military lawyer not of his

own choosing. Over five years after Mr. al Hawsawi’s arrest, the Government of the United

States provided notice of its intention to seek the death penalty against Mr. al Hawsawi, and

charged him on numerous counts of violating the law of war. The violations included:

murder, conspiracy, attacking civilians, attacking civilian objects, intentionally causing

serious bodily injury, hijacking or hazarding a vessel or aircraft, terrorism, and providing

material support for terrorism. A military commission was established for the purpose of

trying Mr. al Hawsawi and four co-accused.

10.

On 29 January 2009, all proceedings related to Mr. al Hawsawi’s military

commission ceased before a resolution was reached or before the case was brought before a

jury, following the issuance of Presidential Executive Order 13492, directing the review

and disposition of individuals detained at the Guantanamo Bay Naval Base and the closure

of detention facilities there. Meanwhile, Mr. al Hawsawi remained in detention at the top-

secret prison in Guantanamo Bay.

11.

On 21 January 2010, all charges against Mr. al Hawsawi and the four co-accused

were dropped. The source reports that Mr. al Hawsawi continued to be detained without

charges until 31 May 2011, when the prosecution process was again initiated against Mr. al

Hawsawi and the four co-accused. Currently, Mr. al Hawsawi is charged with conspiracy,

attacking civilians, attacking civilian objects, intentionally causing serious bodily injury,

murder in violation of the law of war, destruction of property in violation of the law of war,

hijacking or causing hazard to a vessel or aircraft, and terrorism.

12.

The source submits that the deprivation of liberty of Mr. al Hawsawi is considered

arbitrary and falls within category I of the Working Group’s defined categories of arbitrary

detention. The domestic law utilized by the Government of the United States for detention

does not conform to international human rights law and international humanitarian law, in

particular article 9 of the Universal Declaration of Human Rights, article 9 of the

International Covenant on Civil and Political Rights, and principles 4, 10, 11, 12, 32, 36

and 37 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.

13.

The source reports that Mr. al Hawsawi has been subjected to prolonged and

indefinite detention, without any legal basis or known charges against him for the five years

following the date of his arrest. It argues that the arrest of Mr. al Hawsawi by unidentified

government agents and his subsequent detention at undisclosed locations violate his right to

be brought promptly before a judicial authority to challenge the legality of his detention. He

has also been imprisoned for over 10 years without trial, and without the reasonable means

to prepare for a trial. Further, as a result of the public statements of his guilt made by the

authorities, his presumption of innocence has been compromised, in breach of article 11,

paragraph 1, of the Universal Declaration of Human Rights, and principle 36 of the above-

mentioned Body of Principles.

14.

According to the source, Mr. al Hawsawi has been charged for acts which the

international law of war does not recognize as a legitimate crime, that is, providing material

support for terrorism, conspiracy and terrorism. The source submits that that is in

contravention of article 11, paragraph 2, of the Universal Declaration of Human Rights, and

the jurisprudence of the United States Court of Appeals for the District of Columbia.

15.

The source also submits that Mr. al Hawsawi’s deprivation of liberty falls within

category III of the Working Group’s defined categories of arbitrary detention. The

detention of Mr. al Hawsawi is in total or partial non-observance of the international norms

relating to a fair trial, enshrined in article 10 of the Universal Declaration of Human Rights,

article 14 of the International Covenant on Civil and Political Rights, and principles 15, 16,

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17, 18 and 19 of the Body of Principles. The source highlights the fact that Mr. al Hawsawi

was held without consular access, access to his family or access to legal counsel.

Furthermore, Mr. al Hawsawi’s CSRT hearing has been deemed defective by the Supreme

Court of the United States as the hearing was reportedly conducted in secret, on the basis of

unreliable evidence, and without Mr. al Hawsawi being permitted representation by

qualified legal counsel.

16.

According to the source, Mr. al Hawsawi’s detention infringes principles 1, 6 and 33

of the Body of Principles, because he was detained as part of the Central Intelligence

Agency’s rendition, detention and interrogation programme, and no justification may be

invoked for subjecting a detained individual to torture or to cruel, inhuman or degrading

treatment or punishment. Further, Mr. al Hawsawi’s detention contravenes principles 2, 13,

14, 21 and 23 of the Body of Principles, as it is not consistent with the legally recognized

protocols for detention and interrogation. Mr. al Hawsawi was allegedly not entitled to an

explanation of his legal rights during interrogations, and has also been deprived of the

services of an Arabic translator dedicated to his case.

17.

The source further submits that Mr. al Hawsawi’s deprivation of liberty falls within

category V of the Working Group’s defined categories of arbitrary detention for reasons of

discrimination based on his status as a foreign national. It argues that Mr. al Hawsawi is

deprived of the due process and fair trial protections of legitimate criminal justice systems

because of that status. Instead, he is subjected to the inadequate and inferior protections of

the military commissions system. The source argues that that contravenes article 10 of the

Universal Declaration of Human Rights, articles 14 and 26 of the International Covenant on

Civil and Political Rights, and principle 5 of the Body of Principles.

Response from the Government of the United States of America

18.

In the communications addressed to the Government of the United States of

America on 25 August 2015 and to the Government of Cuba on 15 September 2014, the

Working Group transmitted the allegations made by the source. The Working Group stated

that it would appreciate it if the Governments could, in their replies, provide it with detailed

information about the current situation of Mr. al Hawsawi and clarify the legal provisions

justifying his continued detention. The Government of the United States of America replied

to the communication of 25 August 2014 on 29 September and 14 November 2014. The

Government of Cuba has not responded to the communication of 15 September 2014,

which the Working Group regrets.

19.

According to the Government of the United States, Mr. al Hawsawi continues to be

detained lawfully under the Authorization for Use of Military Force (United States Public

Law 107-40), which is informed by the laws of war, in the ongoing armed conflict with Al-

Qaida, the Taliban and associated forces. That law authorizes the President of the United

States to use all necessary and appropriate force against those organizations or persons he

determines planned, authorized, committed or aided the terrorist attacks that occurred on 11

September 2001, and includes the authority to detain persons who are part of Al-Qaida, the

Taliban or associated forces.

20.

All Guantanamo Bay detainees have the ability to challenge the lawfulness of their

detention in a United States federal court through a petition for a writ of habeas corpus.

Detainees have access to counsel and to appropriate evidence to mount such a challenge

before an independent court. Except in rare instances required by compelling security

interests, all of the evidence relied upon by the Government in habeas corpus proceedings

to justify detention is disclosed to the detainees’ counsel, who have been granted security

clearance to view classified evidence, and the detainees may submit written statements and

provide live testimony at their hearings via video link. The United States has the burden in

those cases to establish its legal authority to hold the detainees. Detainees whose habeas

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corpus petitions have been denied or dismissed continue to have access to counsel pursuant

to the same terms applicable during the habeas corpus proceedings.

21.

The Government notes that an attorney filed a habeas corpus petition on behalf of

Mr. al Hawsawi in 2008 without Mr. al Hawsawi’s authorization, leading to the dismissal

of the petition in 2009. Mr. al Hawsawi has made no response to the filing of that petition.

22.

Mr. al Hawsawi has been charged with crimes in relation to his alleged role in the

planning and execution of the 11 September 2001 attacks. The charges have subsequently

been referred to a military commission for trial. Eight charges were referred: conspiracy;

murder in violation of the law of war; attacking civilians; attacking civilian objects;

destruction of property in violation of the law of war; intentionally causing serious bodily

injury; hijacking aircraft; and terrorism. Mr. al Hawsawi is presumed innocent unless

proven guilty beyond a reasonable doubt. Pursuant to the requirements of the 2009 Military

Commissions Act, Mr. al Hawsawi has been provided defence counsel with specialized

knowledge and experience in death penalty cases. The proceedings are currently in the

pretrial litigation phase.

23.

Military commissions are a lawful and appropriate forum for trying violations of the

law of war and other offences triable by military commission. All current military

commission proceedings at Guantanamo Bay are governed by the 2009 Military

Commissions Act, which instituted significant reforms to the system of military

commissions. The reforms include prohibiting the admission at trial of statements obtained

through cruel, inhuman or degrading treatment, in addition to torture, except for statements

by individuals alleging that they were subject to torture or such treatment as evidence

against a person accused of committing the torture or ill-treatment. All military

commissions under the Military Commissions Act incorporate fundamental procedural

guarantees, including: the presumption of innocence and the requirement that the

prosecution prove guilt beyond a reasonable doubt; prohibitions on the use of coerced

evidence; additional evidentiary requirements for the admission of hearsay evidence; a

requirement that an accused in a capital case be provided with counsel “learned in

applicable law relating to capital cases”; the provision of latitude to the accused in selecting

his or her own military defence counsel; and enhancements to the accused’s right to

discovery of evidence. The accused is convicted by a military commission and the

conviction is subject to multiple layers of review, including judicial review in the United

States Court of Appeals for the District of Columbia Circuit, a federal civilian court

consisting of life-tenured judges, and ultimately by petition to the Supreme Court of the

United States.

24.

Further, the United States is committed to ensuring the transparency of commission

proceedings. To that end, proceedings are now transmitted via live video feed to locations

at Guantanamo Bay and in the United States, so that the press and the public can view

them, with a 40-second delay to protect against the disclosure of classified information.

Court transcripts, filings and other materials are also available to the public online via the

website of the Office of Military Commissions: www.mc.mil.

25.

The United States has a strong interest in ensuring the detainees at the Guantanamo

Bay detention facility have meaningful access to counsel in both habeas corpus and military

commission proceedings. The Government respects the critical role of detainees’ counsel in

those proceedings and the fundamental importance of that role in the United States system

of justice, and will continue to make every reasonable effort to ensure that counsel can

communicate effectively and meaningfully with their clients. Presumptive classification has

been a handling procedure to enable counsel to use information obtained from their clients

while also safeguarding classified information. In response to defence concerns that that

handling procedure unfairly burdens the attorney-client relationship, in September 2012,

the Government of the United States requested a modification of the protective order

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applicable to the military commission proceedings for Mr. al Hawsawi. That modification,

which was granted by the military commission judge and reflected in the revised protective

order issued in December 2012, removes the presumption of classification from statements

made by Mr. al Hawsawi and is intended to clarify that defence counsel, who have always

had the ability to discuss with their client a broad range of topics directly related to the

military commission proceeding, may now publicly discuss information unless they have

reason to know it is classified. Additionally, the military commission procedures provide

for a robust attorney-client privilege, which is not waived by any application of the

handling procedures required by the protective order.

26.

According to the applicable counsel access procedures, defence counsel must hold a

valid, current United States security clearance at the appropriate level in order to have in-

person access to detainees at Guantanamo Bay. The counsel access procedures governing

prosecutions by military commissions are modelled on the counsel access procedures

applicable to counsel representing detainees in habeas corpus cases, which were issued by a

United States federal court. The procedures balance the strong interest in counsel access

with the need to comply with United States law and regulations regarding the protection of

classified national security information.

27.

As holders of a valid United States security clearance, detainees’ defence lawyers

are obliged to protect classified information acquired in the course of their representation of

individuals detained at Guantanamo Bay according to applicable United States law and

regulations, and signed agreements between the holder of the clearance and the

Government of the United States. All holders of United States security clearances are

subject to those same obligations.

28.

The United States takes very seriously its responsibility to provide for the safe and

humane care of detainees at Guantanamo Bay. On one of his first days in office, 22 January

2009, President Obama issued Executive Order 13491, Ensuring Lawful Interrogations. The

Executive Order directed that individuals detained in any armed conflict shall in all

circumstances be treated humanely, consistent with United States domestic law, treaty

obligations, and United States policy, and shall not be subjected to violence to life and

person (including murder of all kinds, mutilation, cruel treatment and torture), nor to

outrages upon personal dignity (including humiliating and degrading treatment), whenever

such individuals are in the custody or under the effective control of an officer, employee or

other agent of the Government of the United States or detained within a facility owned,

operated or controlled by a department or agency of the United States. It also ordered that

such individuals shall not be subjected to any interrogation technique or approach, or any

treatment related to interrogation, that is not authorized by and listed in Army Field Manual

2-22.3. The Executive Order revoked all previous executive directives, orders and

regulations that were inconsistent with that Order. All United States military detention

operations, including those at Guantanamo Bay, comply with article 3 common to the four

Geneva Conventions, and other applicable international laws.

29.

Regarding the former detention and interrogation programme referenced in the

Working Group’s letter, President Obama has made clear that certain aspects of that

programme were inconsistent with the values of the United States as a nation. One of the

President’s first acts in office was to sign Executive Order 13491, which brought an end to

that programme.

30.

For some time, the Obama Administration has made clear that the 500-page

document containing the findings and conclusions and the executive summary of the final

report of the Senate Select Committee on Intelligence on the former detention and

interrogation programme should be declassified and released by the Senate Committee,

with appropriate redactions necessary to protect national security.

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Comments from the source

31.

On 19 November 2014, the source submitted its comments on the response of the

Government of the United States.

32.

According to the source, the Government’s response is based on policy statements

which do not reflect the actual practices at Guantanamo Bay. The petitioner respectfully

directs the Working Group’s attention to concrete facts which conclusively demonstrate the

arbitrary character of the detention scheme currently in place at Guantanamo Bay. Arbitrary

and prolonged detention at Guantanamo Bay is affecting not only Mr. al Hawsawi, but all

Guantanamo Bay detainees who are in a similar situation.

33.

As previously observed, Guantanamo Bay detention policies continue to be arbitrary

because the Government of the United States justifies the detentions with domestic policies

that do not actually conform to human rights law and international humanitarian law, and

which instead allow and promote prolonged and indefinite detention. Mr. al Hawsawi’s

detention and that of Guantanamo detainees in a similar situation are also arbitrary because

the Government’s military commission system violates international norms recognizing the

right to a fair trial, as spelled out in the Universal Declaration of Human Rights and other

international instruments accepted by the States concerned. Those violations are of such

gravity that they constitute arbitrary detention.

34.

Nothing in the Government’s response negates the fact that its detention scheme at

Guantanamo Bay continues to violate international law by discriminating against detainees

based on their status as foreign nationals.

35.

The following facts conclusively rebut the Government’s response and demonstrate

the arbitrary character of the detention scheme at Guantanamo Bay.

36.

The Authorization for Use of Military Force (Public Law 107-40) sets forth

absolutely no definition of what an “ongoing armed conflict with Al-Qaida, the Taliban or

associated forces” means, nor any timeline. The blanket authorization apparently authorizes

detention in perpetuity. Additionally, prosecutors from the Government of the United States

at Guantanamo Bay have indicated that, even if a Guantanamo detainee is acquitted by a

military commission, the Authorization for Use of Military Force still authorizes his

indefinite detention. Therefore, justice is impossible at Guantanamo Bay. Even an acquittal

would not provide meaningful redress.

37.

The Government asserts that all Guantanamo detainees can challenge their detention

in a United States federal court through a writ of habeas corpus. That is a hollow promise.

United States courts treat habeas corpus petitions by Guantanamo detainees differently

from those submitted by United States prisoners. All Guantanamo petitions are handled by

the Federal Court for the District of Columbia Circuit, which has created a separate body of

law specifically for Guantanamo habeas corpus petitions. That body of law has ensured that

all Guantanamo habeas corpus petitions since 2009 have been denied except one, and in

that case the Government itself recommended the detainee’s release.

38.

The Government affirms that Mr. al Hawsawi has been provided with one counsel

with specialized knowledge and experience in death penalty cases. That is true, but the

appropriate representation standards for death penalty cases, as set forth by the American

Bar Association, require at least two attorneys with significant knowledge and experience

in the defence of death penalty cases. The Government has consistently opposed ethical

resourcing for death penalty cases at Guantanamo Bay. Counsels at Guantanamo Bay have

been denied access to classified evidence even though they possess the requisite security

clearances. Ethical death penalty defence requires adequate resourcing and access to

evidence. They are non-existent at Guantanamo Bay.

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39.

The Government continues to affirm that proceedings at Guantanamo Bay are

governed by the 2009 Military Commissions Act, which purportedly introduced significant

procedural protections and reforms. The Government claims that they include the

prohibition of evidence obtained through torture, coercion or cruel, inhuman or degrading

treatment. It also claims “additional evidentiary requirements” to protect against the

introduction of hearsay evidence, and “enhancements to the accused’s right to discovery of

evidence”. In reality, the military commission system lacks adequate procedural safeguards

and meaningful mechanisms for redress for the indefinite and prolonged detention to which

men in Guantanamo Bay are currently subjected. The facts are as follows.

40.

The Military Commission Rules of Evidence (MCRE) provide:

• That evidence derived from torture is admissible under MCRE 304(5)(A)(ii);

• That evidence derived from coerced statements is admissible under MCRE

304(5)(B)(i)(ii);

• Lowered standards of admissibility for hearsay evidence, in that hearsay evidence is

broadly admissible under MCRE 803(b). That rule states that hearsay evidence not

otherwise admissible under the rules of evidence applicable in trial by general courts

martial may be admitted in trials by military commission.

41.

Furthermore:

• Anyone who represents Guantanamo Bay detainees must be approved by the United

States Department of Defense. Foreign legal representatives of the detainee’s

choosing may not appear in military commission proceedings. The Government has

denied Mr. al Hawsawi the opportunity to meet personally with international legal

representatives willing to act on his behalf and challenge his arbitrary detention in

international human rights courts;

• The Government of the United States continues to prohibit Guantanamo detainees

from meeting with representatives of their Government. For instance, the

Government of Saudi Arabia has been prohibited from meeting with Mr. al

Hawsawi, who is a Saudi Arabian national;

• There are no enhanced rights to discovery of evidence. To date, prosecutors from the

Government of the United States at Guantanamo Bay continue to deny access to

evidence. Large amounts of necessary evidence may never be disclosed to

Guantanamo Bay detainees.

42.

The United States alleges that the Government remains committed to ensuring the

transparency of commissions proceedings. However, Government prosecutors in

Guantanamo Bay have consistently opposed requests by media organizations and defence

representatives to open the proceedings to the general public beyond a few sites on largely

inaccessible military installations. United States intelligence agencies have interfered with

judicial proceedings, for example by shutting off the sound broadcast of a public hearing

without the knowledge or approval of the Military Judge. The Federal Bureau of

Investigation recently infiltrated defence teams by recruiting members as confidential

informants. Those concrete examples of external governmental manipulation demonstrate

that, while the Government may say it is committed to transparency, its current practices

contradict such claims.

43.

Since February 2014, no substantive legal challenges by Mr. al Hawsawi have been

addressed by the military law of war court. That is due to interference by the Federal

Bureau of Investigation and the repercussions thereof. While Mr. al Hawsawi has

repeatedly asked the military law of war court to address his legal challenges, the military

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court has been unwilling to entertain any substantive legal challenges and will not do so

anytime in the near future.

44.

The Government’s practice of over-classification of evidence undermines any claims

that it is committed to transparency. The practice shields government agents from

embarrassment and criminal accountability based on their flagrant violations of human

rights law. Rather than promoting open and confidential communications between detainees

and counsel, new policies ensure that detainees such as Mr. al Hawsawi are effectively

silenced and prohibited from exercising their independent right of action before

international tribunals as victims of torture.

45.

According to the source, the Government of the United States has extended the

practice of over-classification to classify the wish of Guantanamo Bay detainees to disclose

their own life experiences and observations, particularly their experience of torture at the

hands of the Government. Thus, in October 2013, the Military Judge questioned United

States Prosecutor Clayton Trivett, the Managing Deputy Trial Counsel for the Chief

Prosecutor. The colloquy went as follows:

Military Judge: The question becomes, “Is the Government’s position on life

experiences — I’m going to use that term — of the accused, that they know

personally, would that be classified information?”

Mr. Trivett: Yes.

Judge Pohl: Okay. Then I come back to the executive order about being in control of

the United States Government, I’m not paraphrasing it.

Mr. Trivett: Yes.

Judge Pohl: Is that considered in control of the United States Government, if it’s in

the accused’s brain?

Mr. Trivett: The accused are currently in control of the United States Government.

That’s one part of the analysis.

Judge Pohl: Okay.

Mr. Trivett: The second part of the analysis is the fact that the accused were exposed

to sensitive sources and methods1 that were produced by the Government of the

United States.

46.

The practices in place reveal not a commitment to transparency, but rather a

commitment to secrecy and unaccountability. For instance, the identities of government

agents who tortured men is deemed classified and their identities have not been provided

even to defence counsel who possess the requisite security clearances. The names of

countries and locations where men were held and tortured remain classified. The details of

the agreements between the United States and liaison countries remain classified.

47.

United States Prosecutors, led by Chief Prosecutor Brigadier General Mark Martins,

refuse to turn over classified evidence to defence teams unless they sign an agreement

(a Memorandum of Understanding) that would essentially make the attorneys complicit in

the denial of the torture victims’ rights by compelling defence counsel to police their own

clients and prevent them from speaking about the torture they endured. Thus:

1 According to the source of the submission, “sources and methods” is a government euphemism.

“Sources” refers to the identities of the torturers. “Methods” refers to the torture techniques

themselves.

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• Recently, the name of a specific non-governmental organization advocating on

behalf of a Guantanamo detainee has been deemed classified;

• References to specific geographical continents have been classified;

• The names of specific legal cases brought on behalf of Guantanamo detainees in

international forums have been classified;

• The name of a specific international human rights court has been classified.

48.

The response of the Government was that “The United States takes very seriously its

responsibility to provide for the safe and humane care of detainees at Guantanamo Bay ...

The Executive Order directed that all individuals detained ... shall in all circumstances be

treated humanely, consistent with U.S. domestic law, treaty obligations, and U.S. Policy”.

49.

The facts show otherwise. Mr. al Hawsawi is held in a secret detention camp, where

a government investigation has acknowledged that the conditions are the worst in the

Guantanamo prison. In 2012, another detainee in the same camp agreed to plead guilty. Part

of his agreement was that, “as long as I am fully and truthfully cooperating with the

Government as required by this agreement, I should not be detained in [this camp] and

should be detained at a facility consistent with the detention conditions appropriate for law

of war detainees”.

50.

Thus, whatever its executive orders may say in theory, in practice the Government

reserves humane treatment consistent with its treaty obligations for those who agree to

“cooperate” and work with it. Thus, the conditions of arbitrary and prolonged detention are

used as a spur to coerce guilty pleas and “cooperation”, while the humane conditions to

which the detainees have a right are withheld as a reward for guilty pleas and forfeiture of

rights.

51.

Accordingly, the current practices and procedures of the Government of the United

States contradict the policy statements with which it responded to the Working Group. The

current detention scheme at Guantanamo Bay violates international law and conflicts with

the public policy statements of the Government of the United States, which purport to

repudiate torture and affirm the need for accountability.

52.

The Guantanamo Bay detention policies continue to be arbitrary because current

practices do not conform to human rights law and international humanitarian law. Rather,

current practices allow and promote prolonged and indefinite detention. The United States

military commission system, which permits external manipulation, allows the introduction

of derivative evidence obtained through torture and coercion, suppresses evidence and

denies meaningful redress, and violates international norms requiring fair and impartial

tribunals and the right to a fair trial, as spelled out in the Universal Declaration of Human

Rights and other international instruments accepted by the State concerned. Those

violations are of such gravity as to constitute arbitrary detention.

Government of Cuba

53.

The United States of America and the Republic of Cuba signed an agreement on 16

and 23 February 1903 for the lease of some lands within Cuban territory,2 including the

location of the United States Naval Base at Guantanamo Bay. That agreement was

complemented by an additional agreement signed in July 1903. In 1934, the agreement was

2 “Agreement for the lease to the United States of lands in Cuba for coaling and naval stations”, T.S. 418; 6

Bevans 1113, in United States Department of State, Treaties in Force: A List of Treaties and Other

International Agreements of the United States in Force on January 1, 2013, p. 67. Available from

www.state.gov/documents/organization/218912.pdf.

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11

revised.3 There is no doubt that it is a lease agreement because the agreement provides for

the United States to pay a certain amount on an annual basis to Cuba. In principle, a lease

agreement would not imply any transfer of sovereignty. However, the set of agreements

here provides for the United States to exercise complete sovereignty over the areas covered

by the lease.4 In addition, the lease is indefinite and can only be terminated if the United

States decides to vacate the naval base or if the two States, namely the United States and

Cuba, agree.5 The circumstances of the lease imply an effective transfer of sovereignty

from Cuba to the United States for the period of the lease, even though that period is not

limited in time. The February 1903 agreement does state that Cuba remains sovereign, but

that sovereignty is only theoretical and is suspended while the effective sovereignty is

exercised by the United States of America.

54.

That analysis could be challenged when one considers the arguments presented by

the Government of the United States before the United States Supreme Court in Rasul v.

Bush.6 Indeed, the Government of the United States argued in that case that its jurisdiction

did not extend to foreigners at Guantanamo Bay, which was outside of its territory.

However, the Working Group here bears in mind the specific circumstances of that

argument and does not view it as a unilateral act that should be given any legal value. As a

result, only the United States of America currently exercises sovereignty over Guantanamo

Bay and the Working Group has based its decision on the understanding that the alleged

violations at Guantanamo Bay are the responsibility of the Government of the United

States. The Working Group has thus limited its analysis of the case to the responsibility of

United States of America.

Discussion

55.

The Working Group recalls that the International Court of Justice, in its judgment in

the case concerning United States diplomatic and consular staff in Tehran, emphasized that

“wrongfully to deprive human beings of their freedom and to subject them to physical

constraint in conditions of hardship is in itself manifestly incompatible with the principles

3 “Treaty of relations”, signed on May 29, 1934. 48 Stat. 1682; TS 866; 6 Bevans 1161, in United States

Department of State, Treaties in Force, p. 64.

4 Article III of the February 1903 Agreement reads: “While on the one hand the United States recognizes the

continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and

water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United

States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and

control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the

two Governments) for the public purposes of the United States any land or other property therein by purchase or

by exercise of eminent domain with full compensation to the owners thereof.”

5 Article III of the May 1934 Agreement reads: “Until the two contracting parties agree to the modification or

abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in

Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and

by the President of the United States of America on the 23rd day of the same month and year, the stipulations of

that agreement with regard to the naval station of Guantanamo shall continue in effect. The supplementary

agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall

continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo.

So long as the United States of America shall not abandon the said naval station of Guantanamo or the two

Governments shall not agree to a modification of its present limits, the station shall continue to have the

territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.”

6 Rasul et al. v. Bush, President of the United States, et al., Certiorari to the United States Court of Appeals for

the District of Columbia Circuit, Case No. 03-334, 542 U.S. 466 (2004).

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12

of the Charter of the United Nations, as well as with the fundamental principles enunciated

in the Universal Declaration of Human Rights”.7

56.

In a joint statement of 1 May 2013, the Working Group, together with the Inter-

American Commission on Human Rights (IACHR), the Special Rapporteur on the question

of torture, the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism, and the Special Rapporteur on the right

to health, reiterated the need to end the indefinite detention of individuals at the Naval Base

in Guantanamo Bay.

57.

In Opinion No. 10/2013 (United States of America), the Working Group requested

the release of another Guantanamo Bay detainee, and referred to the 2013 joint statement

and the jurisprudence of the Working Group. It also referred to statements by the United

Nations High Commissioner for Human Rights and the International Committee of the Red

Cross expressing with utmost concern that the Guantanamo detainees’ lack of legal

protection and the resulting anguish caused by the uncertainty regarding their future had led

them to take the extreme step of going on hunger strike to demand a real change to their

situation. The 2013 joint statement, the jurisprudence of the Working Group and statements

by the United Nations High Commissioner for Human Rights underlined that, even in

extraordinary circumstances, the indefinite detention of individuals goes beyond a minimal

and reasonable period of time and constitutes a flagrant violation of international human

rights law which in itself constitutes a form of cruel, inhuman and degrading treatment.

Those international bodies have also confirmed that the continuing and indefinite detention

of individuals without the right to due process is arbitrary and constitutes a clear violation

of international law.

58.

In the 2013 joint statement, the Working Group repeated the request it had made to

the Government of the United States of America on 22 January 2002 and had reiterated on

25 June 2004, along with the Special Rapporteurs and other United Nations human rights

mechanisms, to be allowed to visit the Guantanamo detention centre and hold private,

confidential interviews with the detainees as soon as possible.

59.

Furthermore, IACHR, the Working Group and the Special Rapporteurs urged the

United States of America to: (a) adopt all legislative, administrative, judicial and any other

types of measures necessary to prosecute, with full respect for the right to due process, the

individuals being held at Guantanamo Naval Base or, where appropriate, to provide for

their immediate release or transfer to a third country, in accordance with international law;

(b) expedite the process of release and transfer of those detainees who had been certified for

release by the Government itself; (c) conduct a serious, independent and impartial

investigation into acts of forced feeding of inmates on hunger strike and the alleged

violence being used in those procedures; (d) allow IACHR and the United Nations Human

Rights Council mechanisms, such as the Working Group and the Special Rapporteurs, to

conduct monitoring visits to the Guantanamo detention centre under conditions in which

they could freely move about the installations and meet freely and privately with the

prisoners; and (e) take concrete, decisive steps towards closing the detention centre at the

Guantanamo Naval Base once and for all. They urged the Government to state clearly and

unequivocally what specific measures it would implement towards that end.

60.

In its 2008 annual report, the Working Group included a list of principles for the

deprivation of liberty of persons accused of acts of terrorism in accordance of articles 9 and

10 of the Universal Declaration of Human Rights and articles 9 and 14 of the International

7 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment,

I.C.J. Reports 1980, p. 42.

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13

Covenant on Civil and Political Rights (A/HRC/10/21, paras. 53–54). They were set out as

follows:

(a)

Terrorist activities carried out by individuals shall be considered as

punishable criminal offences, which shall be sanctioned by applying current and relevant

criminal and penal procedure laws according to the different legal systems;

(b)

Resort to administrative detention against suspects of such criminal activities

is inadmissible;

(c)

The detention of persons who are suspected of terrorist activities shall be

accompanied by concrete charges;

(d)

The persons detained under charges of terrorist acts shall be immediately

informed of them, and shall be brought before a competent judicial authority, as soon as

possible, and no later than within a reasonable time period;

(e)

The persons detained under charges of terrorist activities shall enjoy the

effective right to habeas corpus following their detention;

(f)

The exercise of the right to habeas corpus does not impede on the obligation

of the law enforcement authority responsible for the decision for detention or maintaining

the detention to present the detained person before a competent and independent judicial

authority within a reasonable time period. Such person shall be brought before a competent

and independent judicial authority, which then evaluates the accusations, the basis of the

deprivation of liberty, and the continuation of the judicial process;

(g)

In the development of judgements against them, the persons accused of

having engaged in terrorist activities shall have a right to enjoy the necessary guarantees of

a fair trial, access to legal counsel and representation, as well as the ability to present

exculpatory evidence and arguments under the same conditions as the prosecution, all of

which should take place in an adversarial process;

(h)

The persons convicted by a court of having carried out terrorist activities

shall have the right to appeal against their sentences.

61.

In several of its opinions and reports, the Working Group has addressed detention at

the Naval Base at Guantanamo Bay. Already in its 2002 annual report (E/CN.4/2003/8), the

Working Group published its “Legal Opinion regarding the deprivation of liberty of

persons detained in Guantanamo Bay”. In its 2006 annual report (A/HRC/4/40), the

Working Group responded to the submissions of the Government of the United States

concerning the Working Group’s Opinion No. 29/2006 (United States of America). The

Government had referred to the United States Supreme Court ruling in Hamdan v.

Rumsfeld, and asserted that the law of armed conflicts governed the armed conflict with Al-

Qaida. In paragraph 14 of the 2006 annual report, the Working Group reiterated the point

made in its 2005 annual report (E/CN.4/2006/7) that “the application of international

humanitarian law ... does not exclude the application of international human rights law”.

That was also restated in the Working Group’s “Deliberation No. 9 concerning the

definition and scope of arbitrary deprivation of liberty under customary international law”,

set out in its 2012 annual report (A/HRC/22/44, paras. 37–75).

62.

According to a joint report of five special procedures mandate holders concerning

the situation of detainees at Guantanamo Bay, international armed conflicts, including

situations of occupation, imply the full applicability of relevant provisions of international

humanitarian law and of international human rights law, with the exception of guarantees

derogated from, provided such derogations have been declared in accordance with article 4

of the International Covenant on Civil and Political Rights by the State party. The United

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14

States has not notified the Secretary-General of the United Nations of any derogation from

the Covenant (E/CN.4/2006/120, para. 83).

63.

In its 2006 annual report, the Working Group repeated that a State’s jurisdiction and

responsibility extend beyond its territorial boundaries, referring to the consistent

jurisprudence of the Human Rights Committee on the International Covenant on Civil and

Political Rights (para. 15). The Working Group and the Human Rights Committee apply

general principles in that regard as they have been clarified by the International Court of

Justice and have gradually also entered into the jurisprudence of the regional human rights

courts, in particular the European Court of Human Rights and the Inter-American Court of

Human Rights. Of note are the Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory,8 and the Application of the International Convention on the

Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),9 in

which the Court stated that “these provisions of the Committee on the Elimination of Racial

Discrimination generally appear to apply, like other provisions of instruments of that

nature, to the actions of a State party when it acts beyond its territory”. The nature of

human rights treaties and their foundation in universality require a justification for a

territorial limit on their scope, and that is a consequence of the object and purpose of human

rights treaties.

64.

The Working Group recalls that in 1986, in the López and Celiberti cases, the

Human Rights Committee held that “it would be unconscionable to so interpret the

responsibility under article 2 of the Covenant as to permit a State party to perpetrate

violations of the Covenant on the territory of another State, which violations it could not

perpetrate on its own territory”.10 The Human Rights Committee referred to article 5,

paragraph 1, of the International Covenant on Civil and Political Rights, which provides

that “nothing in the present Covenant may be interpreted as implying for any State, group

or person any right to engage in any activity or perform any act aimed at the destruction of

any of the rights and freedoms recognized herein or at their limitation to a greater extent

than is provided for in the present Covenant”. The Working Group has consistently adopted

the same approach in its jurisprudence, notably in its Opinions No. 10/2013 (United States

of America) and No. 57/2013 (Djibouti, Sweden and the United States of America).

65.

It is at the core of that general rule that a State’s international law obligations apply

equally to its acts abroad and those of its agents abroad, and it is clear that the rule applies

when individuals are held in detention. Adopting a contextual and purposive interpretation

of article 2 of the International Covenant on Civil and Political Rights, the Human Rights

Committee has confirmed that “a State party must respect and ensure the rights laid down

in the Covenant to anyone within the power or effective control of that State party, even if

not situated within the territory of the State party”.11 It is widely accepted that persons

incarcerated by State authorities in detention facilities located outside the State’s territory

are subject to the effective control of that State. To that end, the joint report of the five

special procedures mandate holders of the former Commission on Human Rights,12 and the

Opinions rendered by the Working Group have confirmed that the obligations of the United

States under international human rights law extend to persons detained at Guantanamo Bay.

The gross violations of international law at Guantanamo are such that any State that has

8 Advisory Opinion, I.C.J. Reports 2004, p. 136.

9 Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 353.

10 Communication No. 52/79, López Burgos v. Uruguay, Views adopted on 29 July 1981, para. 12.3;

Communication No. 56/79, Celiberti de Casariego v. Uruguay, Views adopted on 29 July 1981, para. 10.3.

11 Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation

imposed on States parties to the Covenant, para. 10.

12 See E/CN.4/2006/120, para. 11.

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15

actively facilitated or in any way acquiesced in the detention must hold enquiries into the

acts of its officials and provide remedies to individuals for any breaches of international

law to which their facilitation or acquiescence may give rise.

66.

The United States is bound by international law and its international human rights

obligations regarding its detention of Mr. al Hawsawi. The International Court of Justice in

its 2010 Diallo judgment stated that article 9, paragraphs 1 and 2, of the International

Covenant on Civil and Political Rights apply in principle to any form of detention,

“whatever its legal basis and the objective being pursued”.13 The Working Group has

emphasized that it “would like to stress as a matter of principle that the application of

international humanitarian law to an international or non-international armed conflict does

not exclude application of human rights law. The two bodies of law are complementary and

not mutually exclusive”.14 Customary international law prohibits arbitrary detention and

arbitrary detention is confirmed as a peremptory norm (jus cogens) in the constant

jurisprudence of the Working Group.15

67.

The prohibition of arbitrary detention provides for clear and precise rights and

guarantees from which there is no scope for derogations or restrictions under international

humanitarian law. Neither can international humanitarian law operate as a principle of

interpretation, and it is not lex specialis even in the present context of interpretation. The

rules and procedures of international humanitarian law must comply with the prohibition of

arbitrary detention in international law, and authorities are always subject to review by

international and domestic courts for their compliance.

68.

The Working Group has stated that “the struggle against international terrorism

cannot be characterized as an armed conflict within the meaning that contemporary

international law gives to that concept”.16 In the present case, the Working Group points out

that the detention of Mr. al Hawsawi is also in direct contravention of the protection

provided by international humanitarian law. With no concrete evidence that Mr. al

Hawsawi has committed any belligerent activity or directly participated in hostilities, the

United States cannot rely on international humanitarian law to argue that the detention of

Mr. al Hawsawi serves the purpose of preventing a combatant from continuing to take up

arms against the United States. The Working Group also points out that the Geneva

Conventions require that enemy belligerents and civilians who are detained as threats to

security be released at the end of the armed conflict or hostilities. At the current point in

time, whether the war on terror is considered an international or non-international armed

conflict, any of the procedures for detention regimes under international humanitarian law

cease to operate. International humanitarian law has never been conceived to apply to a

detention of the length of that of Mr. al Hawsawi and procedures for detention regimes

under international humanitarian law cease to provide any support, if they ever did, for the

detention of individuals at Guantanamo Bay.

13 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,

I.C.J. Reports 2010, para. 77.

14 Opinion No. 44/2005, para. 13; also quoted in Opinion No. 2/2009, para. 27. See also Human Rights

Committee, general comment No. 31, para. 11; general comment No. 35 (2014) on article 9: Liberty and

security of person, para. 64, and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,

I.C.J. Reports 1996, para. 25.

15 See also the clarification by the International Court of Justice of the prohibition of torture as a

peremptory norm of international law (jus cogens) in Questions relating to the Obligation to

Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, para. 99.

16 Opinion No. 43/2006, para. 31. See also E/CN.4/2006/120, para. 21, in which it is noted that “the global

struggle against international terrorism does not, as such, constitute an armed conflict for the purposes of

the applicability of international humanitarian law”.

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16

69.

Among the several other issues relating to the legality of the detention, even if it had

not otherwise been in contravention of international law, the Working Group points to the

absence of any express legal domestic authority for detention. The Authorization for Use of

Military Force, which authorizes the President to “use all necessary and appropriate force

against those nations, organizations, or persons he determines planned, authorized,

committed, or aided the terrorist attacks that occurred on September 11, 2001”,17 does not

specifically authorize arrest or detention.

70.

Article 9, paragraph 4, of the International Covenant on Civil and Political Rights

entitles any individual deprived of liberty by arrest or detention to take proceedings before

a court without delay to challenge the legality of detention. That right is non-derogable

under both treaty law and customary international law, as confirmed in the constant

jurisprudence of the Working Group.18 Mr. al Hawsawi first received an administrative

hearing before the Combatant Status Review Tribunal in 2004, two years after he was

incarcerated, and appeared annually before the Administrative Review Tribunal.

71.

That two-year delay in allowing Mr. al Hawsawi to challenge his detention is a

grave and clear violation of international law, which is further aggravated by his continued

detention.

72.

The Working Group again concludes that the administrative hearings before the

Combatant Status Review Tribunal and the Administrative Review Tribunal did not satisfy

Mr. al Hawsawi’s right to habeas corpus and failed to guarantee his right to a full and fair

trial as required under article 14, paragraph 1, of the International Covenant on Civil and

Political Rights and customary international law. The source has again drawn the Working

Group’s attention to the ruling by the United States Supreme Court that the Combatant

Status Review Tribunal is not an adequate and effective substitution for habeas corpus

proceedings,19 and the Working Group has itself previously stated that “the procedures of

the [Combatant Status Review Tribunal] and the [Administrative Review Board] are not

adequate procedures to satisfy the right to a fair and independent trial as these are military

tribunals of a summary nature”.20

73.

Mr. al Hawsawi’s case will be discussed under categories I, III and V of the

categories applicable to the cases before the Working Group. The Working Group has not

considered categories II or IV applicable.

74.

Category I applies when it is clearly impossible to invoke any legal basis justifying

the deprivation of liberty. Category I embodies a principle of legality. It requires a legal

basis for detention in domestic law that complies with international law. Mr. al Hawsawi’s

detention does not satisfy that requirement. The domestic law used by the United States

Government to detain Mr. al Hawsawi does not comply with international law and the

requirements of human rights law and international humanitarian law on the further

grounds that his detention is prolonged and indefinite.

75.

Mr. al Hawsawi’s case falls within category I of the categories applicable to cases

before the Working Group.

76.

Category III applies when the total or partial non-observance of the international

norms relating to the right to a fair trial, established in the Universal Declaration of Human

Rights, in other customary international law and in the relevant international instruments

accepted by the United States, is of such gravity as to give the deprivation of liberty an

17 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

18 A/HRC/22/44, para. 47.

19 Boumediene et al. v. Bush 553 U.S. (12 June 2008).

20 Opinion No. 2/2009, para. 32.

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17

arbitrary character. The source has alleged that there were several grave violations of the

fair trial rights of the defendant in the main proceedings. The Working Group has

considered all the submissions made by the source and the responses by the Government.

77.

The Government contends that the restrictions on the accused’s access to

confidential material in the investigation file were legitimate under international human

rights instruments. In that regard, the Working Group notes that such restrictions would be

legitimate in respect of material which is not then used as evidence against the accused at

trial and is not of an exculpatory nature. In the current case, however, in violation of

article 14, paragraph 3 (b), of the International Covenant on Civil and Political Rights, the

accused, on the pretext of national security, was denied access to substantial evidence used

by the prosecution at trial and to some potentially exculpatory evidence.

78.

In addition, the Working Group has in its constant jurisprudence considered counsel-

client confidentiality as a core element in the due process and fair trial guarantees in

article 14 of the International Covenant on Civil and Political Rights and article 10 of the

Universal Declaration of Human Rights and other customary international law.21 The

Working Group holds that deprivation of the accused’s right to communicate with his

defence counsel in private in the courtroom during the trial constitutes a most serious

breach of the due process and fair trial guarantees in article 14 of the International

Covenant on Civil and Political Rights and article 10 of the Universal Declaration of

Human Rights and other customary international law.

79.

The Working Group concludes that Mr. al Hawsawi’s rights to fair trial and due

process have been repeatedly violated, in breach of articles 9 and 14 of the International

Covenant on Civil and Political Rights, during his more than 10-year detention. Mr. al

Hawsawi was not provided with the reasons for his detention; was not promptly brought

before a judicial authority for review of his detention; and was not provided with legal

counsel within a reasonable time. The Government did not provide him with formal

information on the reasons for his detention for at least two years. He was not given an

opportunity to have his detention reviewed promptly by a judicial authority, and he was

also denied the legal counsel that international law requires throughout his administrative

and military hearings.

80.

Mr. al Hawsawi’s case falls within category III of the categories applicable to cases

before the Working Group.

81.

Category V applies when the deprivation of liberty constitutes a violation of

international law for reasons of discrimination based on birth; national, ethnic or social

origin; language; religion; economic condition; political or other opinion; gender; sexual

orientation; or disability or other status, and which aims towards or can result in ignoring

the equality of human rights.

82.

Mr. al Hawsawi has been subjected to prolonged detention because of his status as a

foreign national. He was also deprived of due process and fair trial protections of the court

system because of his foreign national status. The source contends that those are acts of

discrimination that make his detention arbitrary. The Working Group agrees; they are acts

in violation of international law for reasons of discrimination based on national and other

origin and which both aim towards and result in ignoring the equality of human rights.

83.

Mr. al Hawsawi’s case falls within category V of the categories applicable to cases

before the Working Group.

21 See Opinion No. 6/2013.

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18

84.

Notwithstanding the fact that the findings of the present opinion have been directed

to the circumstances of Mr. al Hawsawi’s unlawful detention, the Working Group has

addressed the issues of principle raised in the course of the present proceedings from the

viewpoint of the general application of the law on arbitrary detention. The Working Group

has clarified many issues of international law in its Guantanamo jurisprudence, to which the

present opinion is the most recent addition. To avoid any ambiguity, the Working Group

makes it clear that, while it has in the present opinion specifically addressed Mr. al

Hawsawi’s case, no a contrario argument can be made in respect of any of the findings in

the present opinion. The conclusions reached by the Working Group in the present opinion

apply to other persons finding themselves in similar situations at Guantanamo Bay,

including the conclusions on the remedies below.22

85.

Under international law, the United States has a duty to release Mr. al Hawsawi and

accord him an enforceable right to compensation. The duty to comply with international

law rests on everyone, including domestic authorities and private individuals, and

international and domestic law must provide remedies to make international law effective.

States are under a positive obligation to provide an effective remedy for violations of

international law concerning human rights. Domestic courts have a particular role to play in

granting tort remedies (responsabilité administrative et constitutionnelle). Domestic law

cannot erect barriers, such as immunities, jurisdictional limitations, procedural hurdles or

defences, based on an “act of State doctrine” in any form that would limit the effectiveness

of international law. One basis for jurisdiction is the exercise of control over individuals;

under international law, such control exists whenever an act attributable in the widest sense

to a State has an adverse effect on anyone anywhere in the world.

86.

Article 8 of the Universal Declaration of Human Rights provides that “everyone has

the right to an effective remedy by the competent national tribunals for acts violating the

fundamental rights granted him by the constitution or by law”.23 Article 14 of the

Convention against Torture provides that “each State Party shall ensure in its legal system

that the victim of an act of torture obtains redress and has an enforceable right to fair and

adequate compensation, including the means for as full rehabilitation as possible”.24 The

duty to provide such redress is confirmed as customary international law in the constant

jurisprudence of the Working Group. The Working Group points out that the arguments

raised and doctrines offered against remedies have so far been only too effective. In terms

of actual outcomes, international courts and tribunals and domestic courts have not

provided effective remedies. It is contrary to the rule of law and the requirements of an

effective international legal order to accept new restrictions effectively barring remedies in

domestic courts, as under the international law principles of subsidiarity and

complementarity, domestic legal orders have the primary responsibility to provide

remedies.

Disposition

87.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

22 See Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment, I.C.J. Reports 2004,

para. 151, and the Declaration of President Guillaume in LaGrand (Germany v. United States of America),

Judgment, I.C.J. Reports 2001, p. 517.

23 See also art. 9, para. 5, of the International Covenant on Civil and Political Rights.

24 See the clarification of the prohibition of torture as a peremptory norm of international law (jus cogens) in

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports

2012. Arbitrary detention is confirmed as a peremptory norm (jus cogens) in the constant jurisprudence of the

Working Group.

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The deprivation of liberty of Mr. al Hawsawi is arbitrary, being in contravention of

articles 9 and 10 of the Universal Declaration of Human Rights and 9 and 14 of the

International Covenant on Civil and Political Rights. It falls within categories I, III

and V of the arbitrary detention categories referred to by the Working Group when

considering cases submitted to it.

88.

Consequent upon the opinion rendered, the Working Group requests the

Government of the United States of America to take the necessary steps to remedy the

situation of Mr. al Hawsawi and bring it into conformity with the standards and principles

set out in the Universal Declaration of Human Rights and the International Covenant on

Civil and Political Rights.

89.

The Working Group considers that, taking into account all the circumstances of the

case, the adequate remedy would be to release Mr. al Hawsawi and accord him an

enforceable right to compensation in accordance with article 9, paragraph 5, of the

International Covenant on Civil and Political Rights.

[Adopted on 20 November 2014]