Opinion; Subjects: UNITED STATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.18-01121(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eightieth session, 20–24 November 2017
Opinion No. 89/2017 concerning Ammar al Baluchi
(United States of America)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/36/38), on 11 May 2017 the
Working Group transmitted to the Government of the United States of America a
communication concerning Ammar al Baluchi. The Government replied to the
communication on 6 June 2017. The United States of America is a party to the International
Covenant on Civil and Political Rights.
3.
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 him or her) (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
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (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 on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
* The annex to the present report is circulated as received, in the language of submission only.
United Nations
A/HRC/WGAD/2017/89
General Assembly
Distr.: General
24 January 2018
Original: English
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2
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Ali Abdul Aziz Ali, also known as Ammar al Baluchi, is a 40-year-old national of
Pakistan. He was arrested on 29 April 2003 in Karachi, Pakistan.
5.
The circumstances surrounding Mr. al Baluchi’s arrest and subsequent custody were
considered by the Working Group in its opinion No. 29/2006. The Working Group found
that Mr. al Baluchi’s deprivation of liberty under the rendition programme of the Central
Intelligence Agency was arbitrary under category I. In the opinion, the Working Group also
considered the situation of 25 other individuals deprived of their liberty under the Agency’s
programme.
6.
On or about 6 September 2006, Mr. al Baluchi was transferred to the top secret and
maximum security prison located at Guantánamo Bay Naval Base, Cuba (camp 7). The
source’s current submission addresses the situation of Mr. al Baluchi after his transfer to
Guantánamo Bay.
7.
The source reports that Mr. al Baluchi is currently being detained indefinitely by the
United States Department of Defense as an “alien unlawful enemy combatant”, pursuant to
the Government’s interpretation of the laws of war, and he is no longer under the custody of
the Agency. According to the source, the Government has previously stated its intention to
detain other former Agency detainees, even if they are acquitted of all charges by a military
commission. Mr. al Baluchi faces capital charges on allegations related to the attacks of 11
September 2001.
8.
On 30 March 2007, the Combatant Status Review Tribunal conducted a hearing
which resulted in categorizing Mr. al Baluchi as an “enemy combatant” who could be
detained pursuant to the laws of war for his alleged association with Al-Qaida. This hearing
lasted for 1 hour and 20 minutes. The source alleges that the Tribunal failed to provide Mr.
al Baluchi with basic procedural protections, such as the exclusion of coerced statements
and unreliable hearsay evidence, and denied him the ability to cross-examine witnesses.
The source states that the Government’s evidence was considered by the Tribunal to be
presumptively correct.
9.
In 2008, the United States Supreme Court held in the case of Boumediene v. Bush
that Combatant Status Review Tribunal hearings were an inadequate and ineffective
substitute for habeas corpus guaranteed by the United States Constitution. Nevertheless, the
source reports that the Government continues to cite Mr. al Baluchi’s Tribunal status as a
basis for his detention. Mr. al Baluchi has never been given a status review hearing
pursuant to article 5 of the Geneva Convention relative to the Treatment of Prisoners of
War (Third Geneva Convention).
10.
According to the source, Mr. al Baluchi was held without charge or legal
representation until April 2008, when he was assigned a military lawyer, not of his own
choice.
11.
The source further reports that, more than five years after Mr. al Baluchi’s arrest, the
Government charged him with numerous counts of violating the laws of war, even though
several of the charges (notably conspiracy) do not traditionally fall under the laws of war.
Mr. al Baluchi’s alleged crimes included murder, conspiracy, attacking civilians, attacking
civilian objects, intentionally causing serious bodily injury, hijacking or causing hazard to a
vessel or aircraft, terrorism and providing material support for terrorism. According to the
source, a military commission was established for the purpose of trying Mr. al Baluchi and
his four co-defendants.
12.
On 29 January 2009, Mr. al Baluchi’s military commission proceedings ceased
following the issuance of Presidential Executive Order 13492, which directed the review
and disposition of individuals detained at Guantánamo Bay and the closure of the detention
facility. Meanwhile, Mr. al Baluchi remained in detention at Guantánamo Bay. The source
states that the military commission judge ruled that Mr. al Baluchi has no independent right
to consular access, and he has been denied communication with any consular officials since
his detention began in 2003.
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13.
On 21 January 2010, all charges against Mr. al Baluchi and his four co-defendants
were dropped. However, Mr. al Baluchi continued to be detained without charges until May
2011, when military commission prosecution was again initiated against him and his four
co-defendants. Mr. al Baluchi is currently 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. The source emphasizes that conspiracy,
hijacking, material support for terrorism and terrorism are not, and have never been,
considered crimes under the laws of war.
14.
The source submits that Mr. al Baluchi’s deprivation of liberty is arbitrary according
to categories I, III and V of the categories applied by the Working Group.
15.
In relation to category I, the source submits that Mr. al Baluchi’s deprivation of
liberty has no legal basis because Mr. al Baluchi is a civilian not subject to military
jurisdiction. Moreover, despite having been in the custody of the United States for more
than 13 years, Mr. al Baluchi has never received a status hearing as required by article 5 of
the Third Geneva Convention and his continued detention and trial by military commission
is therefore illegal under international humanitarian law. Accordingly, his deprivation of
liberty violates article 9 of the Universal Declaration of Human Rights, article 9 of the
Covenant, as well as 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.
16.
In relation to category III, the source submits that Mr. al Baluchi’s right to attorney-
client privileged communications has been repeatedly violated. His legal material has been
improperly seized from his cell and reviewed by guards in camp 7, despite being clearly
marked as attorney-client privileged. In addition, Mr. al Baluchi does not have access to
much of the evidence that is used against him due to overclassification of that information
by the Government. The source claims that Mr. al Baluchi is being denied the ability to
know his rights, given that under the military commissions system, even the judge and
prosecution are unclear as to what rights accused persons retain.
17.
In addition, the source reports that Mr. al Baluchi was brutally tortured by Agency
personnel and continues to be subjected to cruel, inhuman and degrading treatment by the
Government while in pretrial detention at the Guantánamo Bay facility. The source submits
that such treatment is a violation of the Fifth and Eighth Amendments to the United States
Constitution, which incorporate what is now the international prohibition of torture and
other cruel, inhuman or degrading treatment.
18.
The source further reports that, upon their transfer to Guantánamo Bay, defendants
were placed directly in isolation at camp 7, where they have remained to this day, nearly 10
years later. Camp 7 is known to be the most restrictive area at the Guantánamo Bay facility.
Until 2013, the military commission treated defendants’ memories of having been tortured
as classified, while other information about their confinement was classified until 2015, and
the information necessary for determining accountability is still classified. It was only in
2015 that those memories began to be specifically declassified. The men are only allowed
infrequent letters from their families, and occasional opportunities for non-simultaneous
video messaging are available through the International Committee of the Red Cross
(ICRC). As a result, Mr. al Baluchi’s deprivation of liberty violates the international norms
relating to a fair trial guaranteed by article 10 of the Universal Declaration of Human
Rights, article 14 of the Covenant and principles 15–19 of the Body of Principles.
19.
In relation to category V, the source submits that Mr. al Baluchi has been deprived
of his liberty on the discriminatory grounds of birth, national, ethnic or social origin,
language, religion and gender. The source alleges that the military commissions
intentionally target men for harsher treatment based on their religion and nationality. While
the United States prosecutes men and women of all religions and nationalities in its state,
federal, territorial and tribal courts, as well as in court-martial proceedings, it reserves
military commissions for Muslims who do not hold United States citizenship. The source
states that the United States has never prosecuted any Christian, Jew, Buddhist, Sikh,
Hindu, Jain, Zoroastrian, Rastafarian or atheist in a Guantánamo Bay military commission.
Mr. al Baluchi’s deprivation of liberty therefore violates articles 2, 5 and 6 of the
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International Convention on the Elimination of All Forms of Racial Discrimination, article
10 of the Universal Declaration of Human Rights, articles 14 and 26 of the Covenant and
principle 5 of the Body of Principles.
20.
Mr. al Baluchi and his four co-defendants were the subject of an urgent appeal
addressed by the Working Group and several other special procedure mandate holders to
the Government on 30 November 2012. 1 In the communication, the mandate holders
expressed concern regarding a range of topics including access to legal representation,
attorney-client privilege, failure to investigate and acknowledge the use of torture, the use
of testimony obtained through abusive interrogation techniques and indefinite detention.
The Government replied on 20 December 2013 with responses similar to those outlined
below in its replies to the Working Group’s regular communication in the present case.
Response from the Government
21.
On 11 May 2017, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 10 July 2017 about the current situation
of Mr. al Baluchi, including any comments on the allegations made by the source. The
Working Group also requested the Government to clarify the factual and legal grounds
justifying the continued deprivation of liberty of Mr. al Baluchi, and how this is compatible
with the obligations of the United States under international human rights law, including
with regard to the Covenant and other treaties that it has ratified. Moreover, the Working
Group called upon the Government to ensure Mr. al Baluchi’s physical and mental
integrity.
22.
The Government submitted its response on 6 June 2017, stating that Mr. al Baluchi
is detained lawfully under the Authorization for Use of Military Force (U.S. Public Law
107-40), as informed by the laws of war, in the ongoing armed conflict with Al-Qaida, the
Taliban and associated forces. Under the law, the President of the United States is
authorized 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 September 11, 2001”, including the authority to detain persons who are part of
Al-Qaida, the Taliban or associated forces.2
23.
According to the Government, all Guantánamo Bay detainees have the ability to
challenge the lawfulness of their detention in the United States Federal Court through a
petition for a writ of habeas corpus. Detainees may also challenge certain types of
conditions of their confinement through a habeas corpus writ. Detainees have access to
counsel and to appropriate evidence to mount 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’ counsels, who have been granted security clearances to view the classified
evidence, and detainees may submit written statements and provide live testimony at their
hearings via video link. The Government has the burden in these cases to establish its legal
authority to hold the detainees. Detainees whose habeas corpus petitions have been denied
or dismissed continue to have access to counsel. Mr. al Baluchi has filed a habeas corpus
petition challenging his detention, which is currently pending.
24.
The Government notes that Mr. al Baluchi has been charged with crimes in relation
to his alleged role in the planning and execution of the 11 September 2001 attacks. He has
been charged with eight offences before a military commission: conspiracy; murder in
1 See case No. JUA USA 31/2012, in A/HRC/22/67 and Corr.1 and 2.
2 The Government states that international humanitarian law and international human rights law contain
many provisions that complement one another and are in many respects mutually reinforcing, and that
certain provisions of human rights treaties may apply in armed conflicts. For example, the obligations
to prevent torture and cruel, inhuman or degrading treatment or punishment under the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment remain applicable
in times of armed conflict and are reinforced by complementary prohibitions in the law of armed
conflict. However, with respect to situations of armed conflict, international humanitarian law is the
lex specialis; as such, it is the controlling body of law with regard to the conduct of hostilities and the
protection of war victims.
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5
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 Baluchi is presumed innocent unless proven guilty
beyond a reasonable doubt.
25.
Moreover, the Government states that, pursuant to the requirements of the 2009
Military Commissions Act, Mr. al Baluchi has been provided defence counsel with
specialized knowledge and experience in death penalty cases. These proceedings are
currently in the pretrial litigation phase. In Mr. al Baluchi’s case, the parties have submitted
287 substantive motions in writing and have orally argued 136 motions. Of the 287
substantive motions, 20 have been mooted, dismissed or withdrawn; more than 200 have
been ruled on by the judge; and 38 have been submitted for and are pending decision. The
Commission has received testimony from 37 witnesses during more than 93 hours of
testimony, with all witnesses subject to cross-examination to assist in deciding pretrial
motions. The Government emphasizes that this progress represents methodical movement
towards trial, but the seriousness of criminal proceedings and accountability under law
require that the defence be given a full and fair opportunity to raise such legal challenges,
and each one must be taken up methodically, and without resorting to perceived shortcuts,
in order to pursue a justice that is truly sustainable.
26.
According to the Government, 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 Guantánamo Bay are
governed by the 2009 Military Commissions Act. Under the Act, military commissions are
available to try alien unprivileged enemy belligerents, who are defined as non-United States
citizens who have engaged in hostilities against the United States or its coalition partners;
who have purposefully and materially supported hostilities against the United States or its
coalition partners; or who were part of Al-Qaida at the time of the alleged offence under the
Act. The military commissions are not reserved for followers of Islam or any other
particular religion.
27.
The Government notes that the 2009 Act instituted significant reforms to the system
of military commissions. These 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 subjected to torture or such
treatment as evidence against a person accused of committing the torture or mistreatment
(10 United States Code, sect. 948r).
28.
The Government further notes that all military commissions under the 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. If an accused person is convicted by a military
commission, 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 United States
Supreme Court.
29.
Furthermore, the Government stresses that it is committed to ensuring the
transparency of military commission proceedings. To that end, proceedings are now
transmitted via live video feed to locations at Guantánamo 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.
30.
The Government has a strong interest in ensuring that the detainees at the
Guantánamo Bay detention facility have meaningful access to counsel in habeas corpus and
military commission proceedings. The Government respects the critical role of detainees’
counsel in these 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
counsels can communicate effectively and meaningfully with their clients. Additionally, the
procedures governing the military commissions provide for robust attorney-client privilege.
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31.
The Government asserts that all United States military detention operations,
including those at Guantánamo Bay, comply with common article 3 of the Geneva
Conventions of 12 August 1949 on the protection of war victims and other applicable
international laws. The Government takes very seriously its responsibility to provide for the
safe and humane care of detainees at Guantánamo Bay. The Government reaffirms that
torture and cruel, inhuman or degrading treatment or punishment are categorically
prohibited under United States domestic law and international law, including international
human rights law and the law of armed conflict. These prohibitions exist everywhere and at
all times.
32.
Finally, the Government refers to Executive Order 13491 (Ensuring Lawful
Interrogations), which provides 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. Such individuals 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 they are in the custody or under the effective control of an officer, employee or
other agent of the Government or detained within a facility owned, operated or controlled
by a department or agency of the United States. The Executive Order further provides 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 Field Manual explicitly prohibits threats, coercion and physical abuse. The
National Defense Authorization Act for Fiscal Year 2016 codified many of the key
interrogation-related provisions of the Executive Order. It also imposed new legal
requirements, including that the Army Field Manual remain publicly available and that any
revisions be made publicly available 30 days in advance of their taking effect.
Further comments from the source and the Government
33.
The Working Group has considered all the submissions (see annex) made by the
source and the responses provided by the Government.
Discussion
34.
This is not the first time that the Working Group has issued an opinion in relation to
Mr. al Baluchi. In its opinion No. 29/2006, the Working Group found that Mr. al Baluchi
and 25 other individuals were arbitrarily deprived of their liberty under the Central
Intelligence Agency rendition programme. Opinion No. 29/2006 was adopted on 1
September 2006, five days before Mr. al Baluchi was transferred to the Guantánamo Bay
Naval Base. The source seeks a new opinion based on the change in Mr. al Baluchi’s
circumstances.
35.
The Working Group considers that it is appropriate to adopt a new opinion because
the circumstances of Mr. al Baluchi’s detention have changed significantly since it adopted
opinion No. 29/2006, 3 particularly in relation to the detaining authority, the place of
detention and Mr. al Baluchi’s legal status. In reaching this conclusion, the Working Group
has taken into account the following factors:
(a)
When the Working Group considered Mr. al Baluchi’s circumstances in
2006, he was being detained by the Central Intelligence Agency in secret prisons and
“black sites”. The Working Group considered that detention in these circumstances fell
“outside of all national and international legal regimes pertaining to the safeguards against
arbitrary detention”.4 Since being transferred to Guantánamo Bay more than 11 years ago,
Mr. al Baluchi has been in the custody of the United States Department of Defense and is
being detained under a different legal regime, including the 2009 Military Commissions
Act;
(b)
While Mr. al Baluchi was held under the Agency programme, no charges or
proceedings had been initiated against him, and the Working Group did not consider, in
opinion No. 29/2006, whether his right to a fair trial had been observed. Since Mr. al
3 See also opinion No. 50/2014.
4 See opinion No. 29/2006, para. 21.
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Baluchi’s transfer to Guantánamo Bay, charges have been brought against him on two
occasions and new violations of his right to a fair trial before the military commission have
allegedly occurred;
(c)
The source alleges that the Government has not provided adequate medical
care or torture rehabilitation to Mr. al Baluchi, who continues to suffer the effects of being
tortured under the Agency programme. In accordance with its mandate, the Working Group
wishes to consider whether detention under these circumstances is affecting Mr. al
Baluchi’s ability to participate in, and be an asset to, his current proceedings before the
military commission.
36.
It is also not the first time that the Working Group has considered detention at
Guantánamo Bay. Over the last 15 years, the Working Group has developed a considerable
body of legal analysis and jurisprudence reaffirming that the prohibition of arbitrary
deprivation of liberty is a peremptory norm (jus cogens) of international law from which no
derogation is permitted,5 and that the prolonged and indefinite detention of individuals at
Guantánamo Bay violates that prohibition.
37.
The Working Group considers it timely to briefly restate the key principles relevant
to the present opinion based on its previous analyses of detention at Guantánamo Bay:
(a)
In its 2002 annual report, the Working Group published its “Legal opinion
regarding the deprivation of liberty of persons detained in Guantánamo Bay”. 6 The
Working Group considered that the Third Geneva Convention and the Covenant were both
part of the legal framework applicable to detainees at Guantánamo Bay. If a detainee is not
recognized by a competent court as having prisoner of war status under the Third Geneva
Convention, the right to have the lawfulness of detention reviewed and the right to a fair
trial under articles 9 and 14 of the Covenant still apply;7
(b)
In 2006, the Working Group joined four other mandate holders to present a
report to the former Commission on Human Rights on the situation of detainees at
Guantánamo Bay (E/CN.4/2006/120). The report includes a number of important
conclusions:
(i)
Given consistent findings by the Human Rights Committee that a State party
to the Covenant must ensure the rights under the Covenant to anyone within its
power or effective control, the obligations of the United States under international
human rights law extend to persons detained at Guantánamo Bay (paras. 10–11);8
(ii)
The global struggle against international terrorism does not constitute an
armed conflict for the purposes of the applicability of international humanitarian
law.9 Legal provisions under international humanitarian law allowing the United
States to hold belligerents without charges or access to counsel for the duration of
hostilities can therefore not be invoked to justify their detention. Such deprivation of
liberty is, however, governed by human rights law, specifically articles 9 and 14 of
the Covenant.10 This includes the right to challenge the legality of detention before a
court in proceedings affording fundamental due process rights, such as guarantees of
independence and impartiality, the right to be informed of the reasons for arrest, the
5 See A/HRC/22/44, para. 51; and opinions No. 10/2013, para. 32 and No. 50/2014, para. 66.
6 See E/CN.4/2003/8, paras. 61–64.
7 The Working Group noted that “the application of international humanitarian law to an international
or non-international armed conflict does not exclude the application of human rights law. The two
bodies of law are complementary and not mutually exclusive.” See E/CN.4/2006/7, paras. 68–75, in
particular para. 70; and A/HRC/4/40, paras. 14–15, in particular para. 14. See also opinions No.
44/2005, para. 13; No. 2/2009, para. 27; No. 3/2009, para. 30 and No. 53/2016, para. 42. See further
Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and
Human Rights, Human Rights Situation of Detainees at Guantánamo (Warsaw, 2015), paras. 8–9 and
111, available at www.osce.org/odihr/198721?download=true.
8 See opinion No. 57/2013, para. 55; and 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. See
also Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136.
9 See opinions No. 43/2006, para. 31; and No. 11/2007, para. 11. See also A/HRC/13/42, para. 51.
10 The United States has not notified the Secretary-General of any derogation from the Covenant.
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right to be informed about the evidence underlying these reasons, the right to
assistance by counsel and the right to a trial within a reasonable time or to release.
Any person deprived of his or her liberty must enjoy continued and effective access
to habeas corpus proceedings, and any limitations on this right should be viewed
with utmost concern (paras. 21, 25–26);
(iii)
Torture is prohibited under article 7 of the Covenant and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The prohibition of torture is non-derogable, including during the fight against
terrorism, because of its status as a jus cogens norm. The prohibition of torture
encompasses the obligation to investigate alleged violations promptly and bring
perpetrators to justice, and the prohibition of the use of evidence obtained under
torture in legal proceedings (paras. 41–45);
(c)
In 2013, the Working Group, together with the Inter-American Commission
on Human Rights and three other United Nations special procedure mandate holders,
reiterated the need to end indefinite detention at Guantánamo Bay.11 The authors of the joint
statement emphasized that, even in extraordinary circumstances, the indefinite detention of
individuals beyond a minimal and reasonable period of time constitutes a flagrant violation
of international human rights law, which in itself constitutes a form of cruel, inhuman and
degrading treatment. The continuing and indefinite detention of individuals without the
right to due process is arbitrary. The authors of the joint statement urged the United States
to adopt all legislative, administrative, judicial and other measures to prosecute, with full
respect for the right to due process, individuals held at Guantánamo Bay or, where
appropriate, provide for their immediate release or transfer to a third country in accordance
with international law;
(d)
The Working Group’s jurisprudence has consistently determined that
prolonged and indefinite detention at Guantánamo Bay is arbitrary. The Working Group
considered the cases of detainees held at Guantánamo Bay for periods of 6 1/2 years
(opinion No. 2/2009); almost 5 years (opinion No. 3/2009); more than 10 years (opinion
No. 10/2013) and 8 years (opinion No. 50/2014). In each of these cases, the detainees had
not been afforded due process, such as the right to prompt review of the lawfulness of their
detention before a judicial authority and other fair trial rights, which resulted in prolonged
and indefinite detention.12 Following its visit to the United States in 2016, the Working
Group expressed concern that detainees at Guantánamo Bay had not been tried by an
independent and impartial court after many years of arbitrary deprivation of liberty.13
38.
Several other prominent human rights mechanisms have also expressed concern
about the arbitrary deprivation of liberty, lack of due process and ill-treatment of detainees
at Guantánamo Bay. These include United Nations mechanisms, such as the Human Rights
Committee,14 the Committee against Torture15 and special procedure mandate holders,16 as
well as other regional bodies such as the Inter-American Commission on Human Rights17
and the Organization for Security and Cooperation in Europe. 18 Moreover, during the
universal periodic review of the United States in May 2015, 16 delegations expressed
concern and/or made recommendations in relation to Guantánamo Bay, including providing
11 See www.oas.org/en/iachr/media_center/PReleases/2013/029.asp.
12 In an earlier case involving four detainees held without charge at Guantánamo Bay, the Working
Group found that there was no legal basis for their detention (opinion No. 5/2003).
13 See A/HRC/36/37/Add.2, para. 78.
14 See, for example, CCPR/C/USA/CO/4, para. 21.
15 See, for example, CAT/C/USA/CO/3-5.
16 Since 2012, eight joint urgent appeals and allegation letters have been sent by several special
procedure mandate holders in relation to detainees at Guantánamo Bay. See
www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx.
17 For example, Towards the Closure of Guantánamo (2015), particularly para. 23. Available at
www.oas.org/en/iachr/reports/pdfs/Towards-Closure-Guantanamo.pdf.
18 See OSCE, Human Rights Situation of Detainees at Guantánamo. See also
www.osce.org/odihr/215276.
A/HRC/WGAD/2017/89
9
due process to detainees, allowing independent monitoring and investigation of allegations
of human rights violations and closing the facility.19
39.
Turning now to the application of the above principles to the circumstances of the
present case, it is clear from the Working Group’s jurisprudence that the obligations of the
United States under international human rights law extend to persons, including Mr. al
Baluchi, who are detained at Guantánamo Bay. The Working Group must determine
whether the Government has violated those obligations in Mr. al Baluchi’s case. The
Working Group has established the ways in which it deals with evidentiary issues. If the
source has established a prima facie case for a breach of international requirements
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations. The Government can meet this burden of
proof by producing documentary evidence in support of its claims. 20 However, mere
assertions by the Government that lawful procedures have been followed, without such
evidence, are not sufficient to rebut the source’s allegations.21
40.
The source alleges that Mr. al Baluchi’s deprivation of liberty is arbitrary according
to categories I, III and V.
41.
Category I applies when it is clearly impossible to invoke any legal basis justifying
the deprivation of liberty. The source submits that the Government has failed to establish a
legal basis for Mr. al Baluchi’s detention at Guantánamo Bay. According to the source, the
2009 Military Commissions Act requires proof of existing hostilities on 11 September 2001
in order to establish the military commission’s jurisdiction over Mr. al Baluchi. If the
Government cannot prove that an armed conflict existed on 11 September 2001 and that
Mr. al Baluchi participated in those hostilities, the laws of war do not apply, and the
Government can no longer rely upon the Authorization for Use of Military Force as
justification for Mr. al Baluchi’s detention. The military judge ordered a special personal
jurisdiction hearing to be held for Mr. al Baluchi in 2017.
42.
The Working Group has stated on several occasions, most recently in its opinion No.
50/2014 (at para. 68), that the struggle against international terrorism cannot be
characterized as an armed conflict for the purposes of the applicability of international
humanitarian law. That is, the global war on terrorism is not capable of conferring the status
of combatant on persons detained for conduct outside of an armed conflict, and such acts of
terrorism are treated as criminal offences rather than violations of the laws and customs of
war. The Working Group considers that it is a question of fact whether an armed conflict
existed on 11 September 2001 (apart from any broadly alleged war on terror), and whether
there is evidence that Mr. al Baluchi participated in that armed conflict. The Working
Group does not consider itself competent to resolve these questions of fact, and it is for a
domestic tribunal (in the present case, the military commission) to consider in determining
its jurisdiction over Mr. al Baluchi.22
43.
However, the Working Group reiterates its finding in opinion No. 50/2014 that, even
if an armed conflict existed on 11 September 2001, 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 as the lex specialis
have ceased to apply, if they ever did, to Mr. al Baluchi. International humanitarian law was
never conceived to apply to detention of the length of that of Mr. al Baluchi, who has now
been detained at Guantánamo Bay for more than 11 years. Procedures for detention regimes
under international humanitarian law do not provide any support for the prolonged and
indefinite detention of individuals at Guantánamo Bay, and such cases must be considered
with reference to international human rights law.
19 See A/HRC/30/12, paras. 41, 72, 84, 99, 176.239–176.250 and 176.288.
20 See opinion No. 41/2013 quoting Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic
of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 661, para. 55.
21 See A/HRC/19/57, para. 68.
22 Similarly, the Working Group does not consider that it falls within its mandate to resolve whether the
offences with which Mr. al Baluchi has been charged are considered crimes under the laws of war.
A/HRC/WGAD/2017/89
10
44.
According to the source, Mr. al Baluchi was held without charge for a period of over
18 months from the beginning of his detention at Guantánamo Bay on or about 6 September
2006 until April 2008. The Government did not contest this allegation. This amounts to a
violation of Mr. al Baluchi’s right under articles 9 (2) and 14 (3) (a) of the Covenant to be
promptly informed of the charges against him, as well as a failure to invoke a legal basis to
justify his detention. Moreover, the source alleges, and the Government does not dispute,23
that all charges against Mr. al Baluchi were dropped on 21 January 2010 and he continued
to be detained without charges until May 2011, when military commission prosecution was
again initiated against him. Mr. al Baluchi was therefore held for a second period of
detention without legal basis for approximately 16 months.
45.
Further, Mr. al Baluchi first received a hearing before the Combatant Status Review
Tribunal on 30 March 2007, more than six months after he was transferred to Guantánamo
Bay. This hearing resulted in his categorization as an “enemy combatant” who could be
detained pursuant to the laws of war for his alleged association with Al-Qaida. The source
alleges, and the Government does not contest, that this hearing lasted for 1 hour and 20
minutes, and the Tribunal failed to provide Mr. al Baluchi (who had no legal representation
until April 2008) with procedural protections, such as the exclusion of coerced statements
and unreliable hearsay evidence, and the ability to cross-examine witnesses. The
Government’s evidence was also considered by the Tribunal to be presumptively correct.
46.
As the Working Group found in its opinions No. 50/2014, No. 10/2013 and No.
2/2009, hearings before the Combatant Status Review Tribunal do not satisfy the right to
habeas corpus or to a fair and independent trial under article 10 of the Universal
Declaration of Human Rights and article 14 (1) of the Covenant, as they are military
tribunals of a summary nature. The United States Supreme Court has reached a similar
conclusion, having ruled in the case of Boumediene v. Bush that hearings before the
Tribunal are an inadequate and ineffective substitute for habeas corpus proceedings. While
the Government asserts in its response that all Guantánamo Bay detainees have the ability
to challenge the lawfulness of their detention in the United States Federal Court through a
petition for a writ of habeas corpus, Mr. al Baluchi has seen no meaningful progress over
the last two years in his habeas petition, which was first filed in December 2008. He has
therefore not been afforded his right to an effective remedy under article 8 of the Universal
Declaration of Human Rights and article 2 (3) of the Covenant.
47.
The Working Group finds that Mr. al Baluchi was not afforded his right to be
brought promptly before a judge or other judicial authority for review of his detention
under article 9 (3) of the Covenant, or his right to take proceedings before a court to
determine the lawfulness of his detention without delay under article 9 (4) of the
Covenant.24 In the absence of a ruling on the lawfulness of Mr. al Baluchi’s detention by a
judicial authority, the Working Group concludes that no legal basis has been established for
his detention.
48.
For these reasons, the Working Group considers that there was no legal basis
invoked to justify the detention of Mr. al Baluchi, and his deprivation of liberty falls within
category I.
49.
Category III applies when the total or partial non-observance of the international
norms relating to the right to a fair trial is of such gravity as to give the deprivation of
liberty an arbitrary character. The source alleges that there were several grave violations of
Mr. al Baluchi’s fair trial rights.
50.
The source alleges, and the Government does not contest, that the military
commission judge ruled that Mr. al Baluchi has no right to consular access, and that Mr. al
Baluchi has been denied communication with any consular officials since his detention
23 If the Government had sought to challenge these allegations, it could have provided charge sheets or
other records (with redactions necessary for security purposes) to show that Mr. al Baluchi was
charged earlier than claimed by the source.
24 See Basic Principles and Guidelines on Remedies and Procedures on the Right of Persons Deprived
of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 4. See also
guideline 4, paragraph 55, of the Basic Principles and Guidelines, on the review of detention of
civilians by military tribunals.
A/HRC/WGAD/2017/89
11
began. As a national of Pakistan, Mr. al Baluchi has the right under article 36 of the 1963
Vienna Convention on Consular Relations,25 principle 16 (2) of the Body of Principles and
rule 62 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) to communicate with consular authorities of Pakistan. The failure
by the Government to afford Mr. al Baluchi this right is serious given that he is facing
capital charges, and had no access to legal representation for more than 18 months after he
was transferred to Guantánamo Bay. Mr. al Baluchi’s inability to communicate with
consular authorities has potentially precluded effective solutions to his prolonged and
indefinite detention, such as being able to challenge the lawfulness of his detention before a
court and obtain a remedy without delay under article 9 (4) of the Covenant.26 It has also
placed Mr. al Baluchi at risk of further human rights violations, including torture and other
ill-treatment.
51.
Further, the source contends that the Government, specifically the Central
Intelligence Agency, provided the director of the 2012 film Zero Dark Thirty with
information regarding the torture of Mr. al Baluchi at the Agency’s “black sites”, and that
this information, which has been denied to Mr. al Baluchi’s lawyers, was subsequently used
in producing the film. The source alleges that the first 25 minutes of the film involved a
character named “Ammar”, who was beaten, water-doused, held with his wrists bound
above his head, and kept awake for 96 consecutive hours, and that all of these techniques
were used on Mr. al Baluchi. In its response, the Government asserts that Mr. al Baluchi is
presumed innocent unless proven guilty beyond a reasonable doubt, but did not address
these specific allegations. Given that the storyline of the film involves the investigations
that led to identifying the whereabouts of Osama bin Laden, the material portrayed in the
film is highly prejudicial to Mr. al Baluchi’s ability to obtain a fair trial. As the Human
Rights Committee has noted, information placed in the public domain about a criminal
matter must not undermine the presumption of innocence. 27 Moreover, the pretrial
categorization of Mr. al Baluchi by the Combatant Status Review Tribunal as an “enemy
combatant” presupposes his guilt. He has also been held in punitive conditions (discussed
further below) for over 11 years, despite not having been convicted of any crime. In these
circumstances, the Working Group considers that there is a serious and ongoing violation of
Mr. al Baluchi’s right to be presumed innocent under article 11 (1) of the Universal
Declaration of Human Rights and article 14 (2) of the Covenant.
52.
In addition, the source alleges that Mr. al Baluchi had no legal representation from
the date of his transfer to Guantánamo Bay on or about 6 September 2006 until April 2008.
The Government asserts in its response that all Guantánamo Bay detainees have access to
counsel (including, in Mr. al Baluchi’s case, counsel experienced in death penalty cases) to
file a habeas corpus challenge and to assist throughout their proceedings. However, it does
not deny that Mr. al Baluchi had no legal assistance for over 18 months after his transfer to
Guantánamo Bay.28 This amounts to a violation of Mr. al Baluchi’s right to legal assistance
under article 14 (3) (b) of the Covenant. As the Working Group stated in principle 9 of the
Basic Principles and Guidelines on Remedies and Procedures on the Right of Persons
25 The United States is a State party to the Convention. The ability of a foreign defendant in a capital
case to communicate with his or her consular authorities has been recognized as an individual right in
international law: LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p.
466; and Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004, p. 12. Consular access has also been recognized as a human right that informs the right
to a fair trial under article 14 of the Covenant: Inter-American Court of Human Rights, The Right to
Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law,
Advisory Opinion OC-16/99, adopted on 1 October 1999. See also General Assembly resolution
40/144, annex, art. 10.
26 See the Basic Principles and Guidelines (para. 110) in relation to immigration detention, but it is
equally applicable to the criminal justice context.
27 See Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts
and tribunals and to a fair trial, para. 30.
28 Examples of documentary evidence that the Government could have provided include visitor logs for
lawyers meeting with Mr. al Baluchi or a transcript of the Tribunal proceedings showing that he was
legally represented.
A/HRC/WGAD/2017/89
12
Deprived of Their Liberty to Bring Proceedings Before a Court, all persons deprived of
their liberty have the right to legal assistance at any time during their detention, including
immediately after the moment of apprehension (para. 12).29
53.
The source also alleges that, even after legal representation was assigned to Mr. al
Baluchi in April 2008, the ability to represent Mr. al Baluchi has been impeded by repeated
violation of the right to attorney-client privilege. Specifically, Mr. al Baluchi’s legal
material has been seized and reviewed by guards, despite being clearly marked as attorney-
client privileged. Moreover, the source refers to instances in 2013 to 2015, and again in
2017, in which listening devices were allegedly found in attorney-client meeting rooms, as
well as alleged attempts by the Government to place informants on the defence teams. In its
response, the Government states that it respects the critical role of detainees’ counsel and
will continue to make every reasonable effort to ensure that counsel can communicate
effectively with clients. The Government also asserts that the procedures governing the
military commissions provide for “robust” attorney-client privilege, though it did not offer
any examples. While the source does not appear to suggest that the use of listening devices
and attempts to place informants on the defence teams directly affected Mr. al Baluchi,
these allegations raise doubt as to whether Mr. al Baluchi and his legal team have been able
to communicate confidentially at all times at Guantánamo Bay. As the Human Rights
Committee noted in general comment No. 32 (2007) on the right to equality before courts
and tribunals and to a fair trial, the ability to hold private and confidential discussions is an
important element of the right to communicate with counsel under article 14 (3) (b) of the
Covenant (para. 34).
54.
Mr. al Baluchi has been deprived of his liberty for more than 11 years at
Guantánamo Bay. His matter is still only in the pretrial litigation phase, with pretrial
proceedings having continued for over six years. The Working Group takes note of the
Government’s statement in its response that 287 substantive motions have been filed in Mr.
al Baluchi’s case, and agrees with the Government that it is important to give the defence a
full and fair opportunity to raise such challenges. However, notwithstanding the complexity
of Mr. al Baluchi’s case and the number of motions filed by his legal team, the Working
Group considers that 11 years of pretrial detention is both prolonged (excessive in duration)
and indefinite. There is no indication of when Mr. al Baluchi will be brought to trial. The
Government has indicated that it will continue to detain former Central Intelligence Agency
detainees even if they are acquitted by the military commission, so that even acquittal is not
a remedy for indefinite detention at Guantánamo Bay. According to article 9 (3) of the
Covenant, if Mr. al Baluchi cannot be tried within a reasonable time, he is entitled to
release. He is also entitled, under article 14 (3) (c) of the Covenant, to be tried without
undue delay. Both provisions have been violated in the present case.
55.
Furthermore, the source alleges that Mr. al Baluchi does not have access to all of the
evidence that is used against him due to overclassification of that information by the
Government. The source claims that information provided to the director of Zero Dark
Thirty regarding Mr. al Baluchi’s torture under the Agency programme is among the
material that has not been provided to his legal team. Mr. al Baluchi has also requested that
131 witnesses be called for his personal jurisdiction hearing before the military
commission, but the Government has refused all but 10 of these witnesses. In its response,
the Government asserts that: “Except in rare instances required by compelling security
interests, all of the evidence relied upon by the government in habeas proceedings to justify
detention is disclosed to the detainees’ counsel, who have been granted security clearances
to view the classified evidence, and the detainees may submit written statements and
29 Although the source states that the military lawyer appointed for Mr. al Baluchi in April 2008 was not
of his choice, as required by article 14 (3) (b) and (d) of the Covenant, the United States has stated
“that subparagraphs 3 (b) and (d) of article 14 do not require the provision of a criminal defendant’s
counsel of choice when the defendant is provided with court-appointed counsel on grounds of
indigence, when the defendant is financially able to retain alternative counsel, or when imprisonment
is not imposed”. See https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-
4&chapter= 4&lang=en#EndDec. See also guideline 17, para. 93 (d), of the Basic Principles and
Guidelines.
A/HRC/WGAD/2017/89
13
provide live testimony at their hearings via video link.” The Government did not address
the specific allegations by the source and did not elaborate on what constitutes a
“compelling security interest”.
56.
The Working Group concludes that Mr. al Baluchi has not been afforded equality of
arms in terms of having adequate facilities for the preparation of his defence, including
access to evidence, under the same conditions as the prosecution. This amounts to a
violation of article 14 (1) and 14 (3) (b) of the Covenant. 30 The Working Group is
particularly concerned that information regarding the alleged torture of Mr. al Baluchi
under the Agency programme has not been provided to his lawyers. This is potentially
exculpatory material in the capital charges against Mr. al Baluchi if it indicates that
statements made by him were not voluntary.31 This information is also necessary for the
investigation of alleged acts of torture upon Mr. al Baluchi and for the provision of physical
and psychological rehabilitation to him for those acts.
57.
The source has provided credible information, which was not challenged by the
Government, that Mr. al Baluchi was subjected to torture while detained by the Central
Intelligence Agency. It is clear from that information that the previous torture by the
Agency, and the punitive conditions in which Mr. al Baluchi is currently being held,
continues to have an impact upon the fairness of the current military commission
proceedings against him.
58.
Mr. al Baluchi is suffering psychological and physical effects from the previous
torture and his health is in severe decline. Despite his ongoing suffering, he has not been
provided with torture rehabilitation or any other redress, as required by article 8 of the
Universal Declaration of Human Rights and article 14 of the Convention against Torture,32
to which the United States is party. Mr. al Baluchi has also been denied adequate medical
treatment, having been told by a doctor at Guantánamo Bay that he could not access a
treatment plan beyond painkillers due to the political nature of his case. Mr. al Baluchi’s
contact with the outside world is extremely limited, as he is only allowed infrequent letters
from his family and occasional opportunities for video-messaging through ICRC. He is also
subject to indefinite detention, itself a form of cruel, inhuman and degrading treatment
under international law that may amount to torture. 33 This treatment violates Mr. al
Baluchi’s right under article 10 (1) of the Covenant to be treated with humanity and respect
for his inherent dignity, as well as the standards found in rules 1, 3, 24, 30, 31, 34 and 58 of
the Nelson Mandela Rules and principles 1, 6, 15, 16, 19, 24 and 33 of the Body of
Principles. In these circumstances, the Working Group considers that it is very unlikely that
Mr. al Baluchi can effectively assist with, and participate in, his own defence, contrary to
article 14 (3) (b) of the Covenant.34
59.
In addition, the source alleges that previous involuntary statements made by Mr. al
Baluchi under torture by the Agency will be used during his personal jurisdiction hearing
before the military commission. The source cited provisions in the 2009 Military
Commissions Act that allow for the use of such statements, and a recent case involving
another Guantánamo Bay detainee in which the Government argued that the inadmissibility
of evidence obtained through torture only applies when the defendant was tortured at the
30 The Working Group does not have sufficient information to determine whether Mr. al Baluchi has
had a proper opportunity to call witnesses under article 14 (3) (e) of the Covenant. That provision
allows for the calling of relevant witnesses, and does not provide an unlimited right to call all of the
131 witnesses requested for the personal jurisdiction hearing if they are not all relevant. In any event,
the United States has stated “that paragraph 3 (e) does not prohibit a requirement that the defendant
make a showing that any witness whose attendance he seeks to compel is necessary for his defence”.
See
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter= 4&lang=en#End
Dec.
31 See Human Rights Committee, general comment No. 32, para. 33.
32 See Committee against Torture, general comment No. 3 (2012) on the implementation of article 14.
33 See also
http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13859&LangID=E.
34 See opinion No. 29/2017, para. 63. See also E/CN.4/2004/3/Add.3, para. 33.
A/HRC/WGAD/2017/89
14
same time as an incriminating statement was made. The Government emphasized that the
2009 Act, Executive Order 13491 and Army Field Manual 2-22.3 prohibit torture and ill-
treatment and the use of statements at trial obtained through such treatment, and that torture
and ill-treatment are prohibited under United States law.
60.
The Working Group reaffirms the absolute prohibition of torture under customary
international law, article 5 of the Universal Declaration of Human Rights, article 7 of the
Covenant and the Convention against Torture.35 Statements made by Mr. al Baluchi under
torture, regardless of when or where they were made, cannot be used as evidence against
him, as this would be a violation of article 14 (3) (g) of the Covenant and article 15 of the
Convention.36 In opinion No. 57/2013, the Working Group found that evidence obtained in
violation of a suspect’s rights during a previous period of detention was not admissible and
could compromise subsequent proceedings. The Working Group calls on the Government
to investigate Mr. al Baluchi’s allegation of torture under the Agency programme, in
accordance with its obligations under articles 4, 12 and 13 of the Convention, and prosecute
anyone found to have been involved. Any lack of accountability for such acts would only
serve to undermine the moral authority with which terrorism must be fought.
61.
The Working Group therefore concludes that these violations of the right to a fair
trial are of such gravity as to give the deprivation of liberty of Mr. al Baluchi an arbitrary
character according to category III. Given the serious and ongoing violation of Mr. al
Baluchi’s right to be presumed innocent, as well as the psychological and physical trauma
that he continues to suffer as a result of torture under the Agency programme, the Working
Group considers that it is no longer possible for Mr. al Baluchi to receive a fair trial.
62.
Further, the Working Group finds that Mr. al Baluchi has been subjected to
prolonged detention on discriminatory grounds because of his status as a foreign national
and his religious beliefs as a Muslim. In its response, the Government asserted that the
Guantánamo Bay military commissions are not reserved for followers of Islam or any other
particular religion. However, it did not present any information to challenge the source’s
claims that in practice: (a) Guantánamo Bay military commissions are held solely for
defendants who are not citizens of the United States; and (b) the Government has never
prosecuted any person of any religious faith, other than Muslim men, before a Guantánamo
Bay military commission. Indeed, the Government stated in its response that, under the
2009 Military Commissions Act, military commissions are available to try “alien
unprivileged enemy belligerents”, who are defined as non-United States citizens who have
engaged in or supported hostilities against the United States.
63.
In the proceedings before the military commission, Mr. al Baluchi has been deprived
of due process and the fair trial guarantees that would ordinarily apply within the judicial
system of the United States. This act of discrimination on the basis of his status as a foreign
national37 and his religion has denied Mr. al Baluchi equality before the law and violates
articles 2, 5 (a) and (b) and 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination,38 articles 2 and 7 of the Universal Declaration of Human
Rights, and articles 2 and 26 of the Covenant.
64.
The Working Group takes note that the Government has expressed its understanding
of articles 2 and 26 of the Covenant as follows: “That the Constitution and laws of the
35 The Working Group notes the reservations to article 7 of the Covenant and the Convention against
Torture made by the United States, particularly that it considers itself bound by the prohibition of
cruel, inhuman or degrading treatment or punishment only to the extent that it means the cruel,
unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth
Amendments to the United States Constitution.
36 See also guideline 12, pargraph.77, of the Basic Principles and Guidelines.
37 According to the joint study on global practices in relation to secret detention in the context of
counter-terrorism, none of the 14 people transferred from Agency custody to Guantánamo Bay on 6
September 2006, including Mr. al Baluchi, were United States citizens (see A/HRC/13/42, para. 105).
38 See Committee on the Elimination of Racial Discrimination, general recommendation No. 30 (2004)
on discrimination against non-citizens, paras. 19–21, and general recommendation No. 31 (2005) on
the prevention of racial discrimination in the administration and functioning of the criminal justice
system.
A/HRC/WGAD/2017/89
15
United States guarantee all persons equal protection of the law and provide extensive
protections against discrimination. The United States understands distinctions based upon
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or any other status — as those terms are used in article 2, paragraph 1 and
article 26 — to be permitted when such distinctions are, at minimum, rationally related to a
legitimate governmental objective.” 39 However, the Government did not make any
submissions to the Working Group as to how the establishment of military commissions,
which have in practice only prosecuted a select group of Muslim men who are not nationals
of the United States, would be a proportionate means of achieving a legitimate objective.
65.
The Working Group concludes that Mr. al Baluchi’s case falls within category V.40
66.
The Working Group has clarified many issues of international law in its
Guantánamo Bay jurisprudence, to which the present opinion is the most recent addition. In
the present opinion, the Working Group has restated principles of general application
regarding the law on the arbitrary deprivation of liberty and applied them to Mr. al
Baluchi’s circumstances. To avoid any ambiguity, the Working Group wishes to clarify
that, while it has specifically addressed Mr. al Baluchi’s case, the conclusions reached by
the Working Group in this opinion also apply to other detainees in similar situations at
Guantánamo Bay. No a contrario argument can be made in respect of any of the findings in
the present opinion.
67.
Moreover, the present case is one of several cases brought before the Working
Group in recent years concerning the arbitrary deprivation of liberty of persons at
Guantánamo Bay. 41 The Working Group recalls that under certain circumstances,
widespread or systematic imprisonment or other severe deprivation of liberty in violation of
the rules of international law may constitute crimes against humanity.42 As the Working
Group stated in relation to its visit to the United States in October 2016, it remains deeply
concerned regarding the ongoing operation of the detention facility at Guantánamo Bay, the
closure of which should remain a priority. In the meantime, the Working Group urges the
Government to cooperate with United Nations human rights mechanisms and allow them
full access to the facility.43
68.
The Working Group would welcome an invitation from the Government to
undertake a follow-up visit to the United States, with specific authorization to visit the
entire detention facility at Guantánamo Bay Naval Base, including camp 7, where Mr. al
Baluchi is detained. According to the terms of reference for country visits by the Working
Group,44 such a visit would need to be conducted under conditions which allow its members
to have unrestricted access to the facility, and to hold private and confidential interviews
with any detainee.
Disposition
69.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ammar al Baluchi, being in contravention of articles 2,
5, 7, 8, 9, 10 and 11 (1) of the Universal Declaration of Human Rights and of articles
2, 7, 9, 10 (1), 14 and 26 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, III and V.
70.
The Working Group requests the Government of the United States of America to
take the steps necessary to remedy the situation of Mr. al Baluchi without delay and bring it
into conformity with the relevant international norms, including those set out in the
39 See https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en
#EndDec.
40 See also opinions No. 50/2014 and No. 10/2013. See further CERD/C/USA/CO/7-9, para. 22.
41 See opinions No. 50/2014, No. 10/2013, No. 3/2009 and No. 2/2009.
42 See, for example, opinion No. 47/2012, para. 22.
43 See A/HRC/36/37/Add.2, para. 90.
44 See www.ohchr.org/EN/Issues/Detention/Pages/Visits.aspx. See also
www.ohchr.org/Documents/HRBodies/SP/ToRs2016.pdf.
A/HRC/WGAD/2017/89
16
Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
71.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. al Baluchi immediately and accord
him an enforceable right to compensation 45 and other reparations, such as appropriate
physical and psychological rehabilitation for the torture he has suffered, in accordance with
international law.
72.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. al
Baluchi, including an independent inquiry into his allegations of torture, and to take
appropriate measures against those responsible for the violation of his rights.
Follow-up procedure
73.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. al Baluchi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. al
Baluchi;
(c)
Whether an investigation has been conducted into the violation of Mr. al
Baluchi’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the United States of America with its international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
74.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
75.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
76.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.46
[Adopted on 24 November 2017]
45 The United States understands that “the right to compensation referred to in articles 9 (5) and 14 (6)
requires the provision of effective and enforceable mechanisms by which a victim of an unlawful
arrest or detention or a miscarriage of justice may seek and, where justified, obtain compensation
from either the responsible individual or the appropriate governmental entity. Entitlement to
compensation may be subject to the reasonable requirements of domestic law.” See
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en#End
Dec.
46 See Human Rights Council resolution 33/30, paras. 3 and 7.
A/HRC/WGAD/2017/89
17
Annex
Additional information submitted by the parties
Further comments from the source
1.
On 7 July 2017, the response from the Government was sent to the source for further
comment. The Working Group requested the source to respond by 21 July 2017. The source
responded on 18 July 2017.
2.
The source submits that the Government has not established personal jurisdiction
over Mr. al Baluchi after 14.5 years of detention and 6 years of pretrial hearings. The
source refers to the Government’s argument that Mr. al Baluchi is detained lawfully under
the Authorization for Use of Military Force, and submits that this response retroactively
proffers a legal justification for Mr. al Baluchi’s unlawful and arbitrary detention.
According to the source, the Government ignores the fact that in order to both detain and
prosecute Mr. al Baluchi, the 2009 Military Commissions Act (MCA) explicitly requires
proof of hostilities to establish the military commission’s personal jurisdiction over him (10
U.S.C.§ 948 (a) (7)). In May 2017, the Government was asked to prove for the first time
that there were existing hostilities on 11 September 2001, and that Mr. al Baluchi
participated in those hostilities. This position was argued and won by Mr. al Baluchi, and
the military judge has now ordered a special personal jurisdiction hearing to be held for Mr.
al Baluchi later in 2017. This hearing will take place over 14.5 years since Mr. al Baluchi
first entered United States custody through the Central Intelligence Agency (CIA), over 11
years since he was transferred to Guantánamo Bay, and over six years since charges were
brought against him for the second time. If the Government cannot prove that an armed
conflict existed on 11 September 2001, the laws of war do not apply, and the Government
can no longer rely upon the Authorization for Use of Military Force as justification for Mr.
al Baluchi’s unlawful and arbitrary detention.
3.
In addition, the source refers to the Government’s argument that detainees are able
to file habeas petitions, and notes that those proceedings are largely stalled in Mr. al
Baluchi’s case. According to the source, the Government fails to mention that government
evidence in habeas proceedings is treated with a presumption of “regularity”, despite
documented translation and other errors demonstrated by habeas counsel. Mr. al Baluchi’s
habeas petition, first filed in December 2008, has seen no meaningful action in the District
of Columbia District Court since September 2015.
4.
The source further submits that the Government does not observe fair trial rights at
the military commissions. In listing the crimes with which Mr. al Baluchi has been charged,
the Government ignores the fact that three of those crimes — conspiracy, terrorism and
hijacking — were not war crimes on 11 September 2001, and therefore may not be charged
before a military commission. In support of its argument, the source annexed to its
submission the opinions of two international experts in international humanitarian law and
war crimes.
5.
The source refers to the Government’s assertion that Mr. al Baluchi is presumed
innocent unless proven guilty beyond a reasonable doubt. However, the Government’s
argument does not address the fact that Mr. al Baluchi’s continued designation as a “High
Value Detainee”, without justification, is extremely prejudicial to the lay public. The source
also alleges that the Government collaborated with the filmmakers of the 2012 Hollywood
movie Zero Dark Thirty, which provides a fictionalized link — disproven by the Senate
Select Committee on Intelligence in its report — between the torture of Mr. al Baluchi at
the CIA black sites, and information leading to the discovery of Osama bin Laden.
According to the source, several examples of Mr. al Baluchi’s real-life torture were
depicted in this film. The first 25 minutes of the film are largely composed of a character
named “Ammar” who was beaten, water-doused, held up off the floor with his wrists bound
above his head and kept awake for 96 consecutive hours. The source alleges that all of these
techniques were used on Mr. al Baluchi, along with many others. The source also alleges
that the CIA provided the director of the film with information regarding Mr. al Baluchi’s
A/HRC/WGAD/2017/89
18
torture, and that this information has been denied to Mr. al Baluchi’s counsel, who hold
security clearances.
6.
According to the source, the Government continues to violate Mr. al Baluchi’s due
process rights. While the Government correctly notes that the military commission
proceedings are in the pretrial litigation phase, it fails to explain that the pretrial
proceedings have continued for over six years. The Government also does not address the
reasons for the slow movement of the military commissions, including the fact that it
created an entirely new legal system for a specific group of individuals (that is, non-citizen
Muslim males) that has required hundreds of motions to clarify.
7.
Moreover, the source alleges that there have been repeated and continuous intrusions
into the attorney-client privilege belonging to Mr. al Baluchi and other defendants before
the military commission that require investigation. For example, the source alleges that in
March 2013, defence counsel discovered listening devices disguised as smoke detectors in
the attorney-client meeting rooms where case strategy and other privileged discussions take
place, despite previous denials by the Government that it had not installed any such
devices. In April 2014, the Federal Bureau of Investigation (FBI), which is involved in the
prosecution of Mr. al Baluchi and the other four defendants, tried to place an informant on
one of the defence teams. In February 2015, one of Mr. al Baluchi’s co-defendants
identified, while in the courtroom, a CIA translator who had been with the men at the black
sites, who had been placed on a defence team. This kind of egregious violation of the
attorney-client privilege further delays military commission proceedings and undermines
any proffered rationale for Mr. al Baluchi’s continued arbitrary detention.
8.
The source asserts that, despite the Government’s statements that the 2009 MCA
prohibits the admission of evidence obtained through torture or cruel, inhuman or degrading
treatment, the 2009 MCA does allow for the use of evidence obtained through coercion and
derived from torture. The source refers to section 949 of the 2009 MCA, which states that:
“A statement of the accused that is otherwise admissible shall not be excluded from
trial by military commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the provisions of section 948r
of this title.”
9.
The source also refers to section 948r (c), which provides that:
“A statement of the accused may be admitted in evidence in a military commission
under this chapter only if the military judge finds--
(1)
that the totality of the circumstances renders the statement reliable and
possessing sufficient probative value; and
(2)
that--
(A)
the statement was made incident to lawful conduct during military operations
at the point of capture or during closely related active combat engagement, and the
interests of justice would best be served by admission of the statement into evidence;
or
(B)
the statement was voluntarily given.”
10.
According to the source, the section further provides:
“(d)
Determination of Voluntariness — In determining for purposes of subsection
(c) (2) (B) whether a statement was voluntarily given, the military judge shall
consider the totality of the circumstances, including, as appropriate, the following:
(1)
The details of the taking of the statement, accounting for the circumstances of
the conduct of military and intelligence operations during hostilities.
(2)
The characteristics of the accused, such as military training, age, and
education level.
(3)
The lapse of time, change of place, or change in identity of the questioners
between the statement sought to be admitted and any prior questioning of the
accused.”
A/HRC/WGAD/2017/89
19
11.
The source notes that the reason for the specific inclusion of this language in the
2009 MCA is that, following their extended torture and interrogation by the CIA, the
defendants were reinterrogated by the FBI in 2007 after their transfer to Guantánamo Bay,
and the resulting statements have been publicly called the “clean team” statements. The
source alleges that it is these statements, obtained as the result of years of torture, that the
Government seeks to rely upon in death penalty proceedings against Mr. al Baluchi.
12.
In addition, the source argues that the military commission proceedings lack
transparency because the Government actively withholds potentially exculpatory and
mitigating information regarding the torture of the defendants by the CIA, on the basis that
such information is not relevant to their eventual trial. For example, in February 2016,
counsel for Mr. al Baluchi argued that all communications between the CIA and the
filmmakers of Zero Dark Thirty should be released to counsel, but the Government
responded that such information was not relevant.
13.
Finally, the source asserts that Mr. al Baluchi has not been provided with torture
rehabilitation. The source refers to the Government’s summary of Executive Order 13491,
which prohibits torture or cruel, inhuman or degrading treatment, consistent with United
States law and treaty obligations. However, the Government has provided no remedy or
treatment for the prolonged torture inflicted upon the defendants while in CIA custody. The
withholding of torture rehabilitation constitutes an active violation of article 14 of the
Convention against Torture. Without such treatment, the victims continue to suffer the
effects of their torture.
14.
On 13 August 2017, the source provided a further update to the Working Group. The
source reports that Mr. al Baluchi has recently experienced a severe decline in his physical
and mental health. He has constant numbness, which may indicate permanent nerve
damage, on his body where he was shackled for months while in CIA custody. The source
alleges that when Mr. al Baluchi tried to speak about his symptoms with the Joint Medical
Group doctor at Guantánamo Bay, he was told that prescribing a treatment plan beyond
painkillers was not possible due to the political nature of his case.
15.
Furthermore, the source reports that the Government explained its favourable
position towards torture-derived statements in a recent case,1 characterizing the prohibition
of torture-acquired evidence as “temporal”, prohibiting only evidence obtained when the
defendant was tortured at the same time as an incriminating statement was made. The
source further reports that in Mr. al Baluchi’s upcoming personal jurisdiction hearing, the
Government has already indicated that it will rely almost exclusively on similarly tainted
statements made by Mr. al Baluchi, following the same reasoning offered in this recent
case.
16.
The source refers to the Government’s response to the Working Group in which it
stated that “the procedures governing the military commissions provide for robust attorney-
client privilege”. According to the source, in June 2017, the Government acknowledged
that it had “unintentionally” eavesdropped on attorney-client communications at
Guantánamo Bay after a specific order prohibiting monitoring had been made following the
2013 discovery of listening devices in meeting rooms.
17.
The source also refers to the Government’s statement in its response that
“proceedings are now transmitted via live video feed to locations at Guantánamo 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”. The source reports that, during
the past two military commission hearings, the live video feed to the United States has been
cancelled, and it is unclear whether it will be reinstated.
18.
Finally, the source notes that the Government’s response detailed the procedural
rigour of the military commissions, including the provision of witnesses. According to the
source, the personal jurisdiction hearing for Mr. al Baluchi in 2017 will examine two major
1 The name of the defendant was disclosed to the Working Group and to the Government, but is
withheld in the present opinion in order to preserve the integrity of those separate ongoing
proceedings.
A/HRC/WGAD/2017/89
20
questions: (a) whether hostilities existed on 11 September 2001 such that a military
commission has jurisdiction over the attacks and associated acts, and (b) whether coerced
statements made after 3.5 years of CIA detention by Mr. al Baluchi are admissible to
establish personal jurisdiction. Given the breadth of both questions, Mr. al Baluchi has
requested 131 witnesses for the personal jurisdiction hearing. The source reports that all but
10 of these witnesses have been refused by the Government.
Further comments from the Government
19.
Given that the source provided additional information, the Working Group took the
exceptional step of forwarding relevant information from the source’s response to the
Government on 28 August 2017 for its final comments. The Government was requested to
respond by 31 October 2017. The Government responded on 1 November 2017, requesting
an extension of time within which to reply. However, this request was made after the expiry
of the deadline. In accordance with its established practice, the Working Group declined the
request for an extension of time (see, for example, opinion No. 1/2017).