A/HRC/WGAD/2022/72

GE.23-09052 (E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 72/2022 concerning Abd al-Rahim Hussein al-Nashiri

(Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, United

Arab Emirates and United States of America)

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work, 1 on 22 July 2022 the Working Group

transmitted to the Governments of Afghanistan, Lithuania, Morocco, Poland, Romania,

Thailand, the United Arab Emirates and the United States of America a communication

concerning Abd al-Rahim Hussein al-Nashiri. Morocco, Poland and Romania submitted

timely responses. Lithuania replied after the deadline. Afghanistan, Thailand, the United

Arab Emirates and the United States did not reply. All of the above-mentioned States are

parties to the International Covenant on Civil and Political Rights with the exception of the

United Arab Emirates.

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);

1 A/HRC/36/38.

United Nations

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General Assembly

Distr.: General

30 May 2023

Original: English

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(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, 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.

Abd al-Rahim Hussein al-Nashiri is a Saudi Arabian national of Yemeni descent who

was born in 1965 and is currently detained in Guantanamo Bay, Cuba.

5.

In relation to opinion No. 29/2006 of the Working Group concerning Mr. al-Nashiri

and 25 other individuals, the source claims that the circumstances of his detention have

changed since 2006, in particular in relation to the detaining authority, the place of detention,

the legal status according to the authorities and the physical and psychological state of

confinement.

6.

The source underlines that the facts reported arise from official documents of various

authorities of the United States and from other sources that gathered direct testimonies or

evidence:

(a)

Central Intelligence Agency, Office of the Inspector General, Special Review

of Counterterrorism Detention and Interrogation Activities (September 2001–October 2003),

7 May 2004;

(b)

Central Intelligence Agency background paper on its combined use of

interrogation techniques, 30 December 2004;

(c)

International Committee of the Red Cross (ICRC) report following its visits to

14 high-value detainees in custody of the Central Intelligence Agency, including Mr. al-

Nashiri, 14 February 2007;

(d)

United States Senate Select Committee on Intelligence, Committee Study of

the Central Intelligence Agency Detention and Interrogation Program, 2014;

(e)

Declaration of a medical expert appointed by the United States Department of

Defense, October 2015.

7.

According to the information received, Mr. al-Nashiri was captured in Dubai, United

Arab Emirates, by local authorities in mid-October 2002. No warrant was presented. He was

interrogated for one month by agents of the United Arab Emirates.

8.

Mr. al-Nashiri was reportedly rendered to the Central Intelligence Agency, which

transferred him incommunicado to a “black site” in Afghanistan in November 2002.

Thereafter, he was held in solitary confinement and incommunicado for four years at other

black sites, before being transferred to Guantanamo Bay between 4 to 6 September 2006.

9.

Reportedly, on 8 December 2006, the United States Department of Defense assessed

that Mr. al-Nashiri was a high-risk detainee, likely to pose a threat to the United States. He

was detained by the Department of Defense as an “unlawful combatant” pursuant to the

Government’s interpretation of international humanitarian law.

10.

Mr. al-Nashiri was held pursuant to a secret detention and interrogation programme

developed by Central Intelligence Agency after 11 September 2001. The programme, which

was intended for “high-value detainees”, that is, captives suspected by the United States of

terrorism, consisted of a network of clandestine overseas detention facilities.

11.

The European Court of Human Rights has concluded that the rationale behind the

programme was specifically to remove those persons from any legal protection against torture

and enforced disappearance and to strip them of any safeguards afforded by both the United

States Constitution and international law against arbitrary detention. The whole scheme had

to operate outside the jurisdiction of the United States courts and in conditions securing its

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absolute secrecy, which required setting up, in cooperation with the host countries, overseas

detention facilities.2

12.

According to the source, on 10 November 2002, Mr. al-Nashiri was transferred to a

secret Central Intelligence Agency prison in Afghanistan. On 15 November 2002, United

States authorities took him to another secret prison, in Thailand. Between 4 and 5 December

2002, he was transferred to Poland, where he remained until 6 June 2003, when he was taken

to a secret prison in Morocco. On 23 September 2003, the Central Intelligence Agency

transported him to Guantanamo Bay for the first time, where he was held in secret until 12

April 2004, and then transferred to Romania, where he was held until 5 October 2005. Mr.

al-Nashiri was reportedly kept in secret detention at a location in Lithuania for over five

months, until it was closed in March 2006. He was transferred to secret detention in

Afghanistan, between 25 and 26 March 2006. Between 4 and 6 September 2006, Mr. al-

Nashiri was transferred to Guantanamo Bay, where he remains.3

13.

Mr. al-Nashiri is currently being detained indefinitely by the United States

Department of Defense as an “unlawful combatant”. On 10 October 2007, the Government

stated that the law of war, and not the Covenant, was the applicable legal framework

governing the detention of “enemy combatants”.4

14.

The source indicates that the United States justifies the continued detention of Mr. al-

Nashiri under the Authorization for Use of Military Force (United States Public Law 107-40)

adopted in 2001.

15.

According to the source, on 14 March 2007, Mr. al-Nashiri was heard by the

Combatant Status Review Tribunal, which purported to review whether he met the criteria of

an enemy combatant: an individual who was part of or supporting the Taliban, Al-Qaida or

associated forces engaged in hostilities against the United States or its allies. The hearing was

closed to the public and Mr. al-Nashiri was not afforded legal counsel. A personal

representative was appointed, but the individual did not act as counsel and Mr. al-Nashiri’s

statements to the representative were not privileged. He did not have access to any of the

classified evidence introduced against him nor did he have the right to refute the accusations.

16.

On 30 June 2008, the Government of the United States reportedly brought charges

against Mr. al-Nashiri, including charges relating to the bombing of the USS Cole on 12

October 2000. These charges were withdrawn in 2009, removing Mr. al-Nashiri from the

jurisdiction of the military judge, and were brought again in 2011, under the Military

Commission Act.

17.

On 2 October 2008, Mr. al-Nashiri filed a petition for a writ of habeas corpus in the

United States District Court for the District of Columbia (Case No. 08-1207). That petition

is still pending.

18.

The military commission pretrial hearings began on 17 January 2012. The

proceedings remain ongoing and no trial date has been set.

19.

On several occasions, Mr. al-Nashiri petitioned the United States District Court for

the District of Columbia to issue a writ of mandamus and prohibition. On 15 October 2021,

Mr. al-Nashiri reportedly asked the Court of Appeals for the District of Columbia Circuit to

issue a writ of mandamus and prohibition so that the use of torture and the evidence arising

from the use of torture would remain categorically forbidden in any proceeding. This request

is still pending.

Category I

20.

The source underlines 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

2 European Court of Human Rights, Al Nashiri v. Romania, Application No. 33234/12, Judgment, 31

May 2018, para. 690.

3 The Rendition Project, CIA Torture Unredacted: An Investigation into the CIA Torture Programme,

2019.

4 CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3.

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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”.5

21.

Even if international humanitarian law were applicable, the source claims it could

never justify Mr. al-Nashiri’s indefinite detention during an endless war on an open-ended

enemy.6 Mr. al-Nashiri’s detention cannot be justified under domestic law. The United States

cannot purport to justify his continued detention under the Authorization for Use of Military

Force since it does not explicitly allow for arrest or detention. It 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”, but does not specifically authorize capture, indefinite or

incommunicado detention.7

22.

Based on the above, the source claims that there is no legal basis for Mr. al-Nashiri’s

detention, which makes it arbitrary under category I.

Category III

23.

The source claims that rights to fair trial and due process have been repeatedly violated

in Guantanamo Bay.8 Mr. al-Nashiri allegedly suffered the most egregious violations of

human rights, of such gravity as to give the deprivation of liberty an arbitrary character under

category III.

24.

The Central Intelligence Agency used interrogation techniques to persuade high-value

detainees to provide information. Pursuant to a document of the Central Intelligence Agency,

effective interrogation is based on the concept of using both physical and psychological

pressures in a comprehensive, systematic and cumulative manner to influence high-value

detainees’ behaviour, to overcome detainees’ resistance posture. The goal of interrogation is

to create a state of learned helplessness and dependence.9

25.

According to the source, the interrogation techniques were used in all Central

Intelligence Agency facilities for high-value detainees and were intended to demonstrate to

detainees that they had no control over their basic human needs.10

26.

These “enhanced interrogation techniques” reportedly included:

(a)

Prolonged nudity, from several weeks to several months;

(b)

Sleep deprivation, through forced stress positions, cold water and repetitive

loud noise, for 11 days;

(c)

“Walling” (violently banging the head and the body of the detainee against a

wall, 20 to 30 times consecutively);

(d)

Beating, kicking, slapping and punching the face and body;

(e)

Waterboarding, consisting of binding the detainee to a bench, with a cloth over

the mouth and nose while water is poured over, producing the sensation of drowning and

suffocation, inducing convulsions and vomiting;

(f)

Prolonged standing position, naked, with the arms chained above the head for

two or three days continuously, and for up to two or three months intermittently, with toilet

sometimes denied, the detainee having to defecate and urinate on himself;

(g)

Confinement in a box, usually dark, to severely restrict movement; insects may

also be placed in the box;

5 Opinion No. 89/2017, para. 42.

6 Ibid., para. 43.

7 Opinion No. 70/2019, para. 64.

8 Opinion No. 50/2014, para. 79.

9 Central Intelligence Agency background paper on its combined use of interrogation techniques, 30

December 2004, p. 2.

10 Ibid., p. 3 and 5.

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(h)

Deprivation or restriction of solid food and rectal feeding;

(i)

Exposure to cold temperature, especially in cells and interrogation rooms,

using cold water poured over the body or held around the body with a sheet.

27.

The source claims that the use of these techniques amounted to torture and cruel,

inhuman or degrading treatment.

28.

It is alleged that Mr. al-Nashiri “was repeatedly subjected to the Central Intelligence

Agency’s enhanced interrogation techniques. 11 There is direct evidence that he was

waterboarded multiple times. This form of suffocation induces a feeling of panic and the

acute impression that the person is about to die.12

29.

Interrogators reportedly employed potentially injurious stress positions on Mr. al-

Nashiri, who was required to kneel on the floor and lean back. There was concern that his

arms might be dislocated from his shoulders. He was reportedly lifted off the floor by his

arms while his arms were bound behind his back with a belt.13

30.

In addition to enhanced interrogation techniques, Mr. al-Nashiri was reportedly

subjected to other forms of torture and ill-treatment. 14 Central Intelligence Agency

interrogators reportedly subjected him to a mock execution.15 He was also threatened with

sodomy.

31.

According to the source, after having seen and having interviewed Mr. al-Nashiri,

ICRC concluded that the totality of the circumstances in which he was “held effectively

amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention

of international law”.16

32.

The European Court of Human Rights found that, four and a half years after his initial

detention, on 14 March 2007, Mr. al-Nashiri was heard by the Combatant Status Review

Tribunal, which purported to review all the information related to the question whether he

met the criteria to be designated as an “enemy combatant”. The hearing was closed to the

public. The applicant was not afforded legal counsel at this hearing. A personal representative

was appointed for him, but this person did not act as counsel and the applicant’s statements

to this representative were not privileged. He did not have access to any classified evidence

that was introduced against him, nor did he have the right to refute any of the accusations

that were introduced at this hearing.17

33.

United States authorities reportedly monitored Mr. al-Nashiri’s conversations with his

lawyers; a secret judicial ruling limited his right to attorney-client confidentiality. The lack

of access to counsel within a reasonable period and denial of private communication with

counsel contributed to the arbitrariness of the detention.

34.

Reportedly, on 7 March 2012, the United States Department of Defense appointed an

expert in internal medicine and the treatment of victims of torture to conduct an evaluation

of Mr. al-Nashiri. On 24 October 2015, the expert stated that Mr. al-Nashiri suffered from

complex post-traumatic stress disorder as a result of extreme physical, psychological and

sexual torture inflicted upon him by the United States. In the opinion of the expert, the Central

Intelligence Agency had also succeeded in inducing “learned helplessness” in Mr. al-Nashiri.

The result was that he was most likely irreversibly damaged by torture that was unusually

cruel and designed to break him. In the expert’s many years of experience, Mr. Al-Nashiri

11 Senate Select Committee on Intelligence, “Committee Study of the Central Intelligence Agency

Detention and Interrogation Program”, Executive Summary, p. 472.

12 International Committee of the Red Cross (ICRC), “Report on the treatment of 14 high-value

detainees in CIA custody” (Geneva, February 2007), sect. 1.3.1.

13 Central Intelligence Agency, Special Review of Counterterrorism Detention and Interrogation

Activities, 7 May 2004, p. 44.

14 Transcript of the hearing before the Combatant Status Review Tribunal on 14 March 2007, in

European Court of Human Rights, AI Nashiri v. Romania, para. 123.

15 Central Intelligence Agency, Special Review of Counterterrorism Detention and Interrogation

Activities, p. 42.

16 ICRC, “Report on the treatment of 14 high-value detainees”, p. 26.

17 European Court of Human Rights, Al Nashiri v. Romania, para. 142.

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presented as one of the most severely traumatized individuals she had ever seen. To make

matters worse, there was no evident effort to treat the damage and there appeared to be efforts

to block others from giving him appropriate clinical care. The torture experienced by Mr. al-

Nashiri had fractured his trust in humanity, which had damaged his ability to interact with all

humans, including counsel, doctors, other detainees and even family. There was no question

that Mr. Al-Nashiri was tortured at the hands of the Central Intelligence Agency and that his

current symptoms and poor health directly relate to that torture. Despite the passage of time

between Mr. al-Nashiri’s direct torture in the custody of the Central Intelligence Agency and

the present, he shows little sustained improvement. Although, even in the best of

circumstances, the horrific and calculated nature of his torture would be expected to have

long-lasting effects, there were multiple factors that unique to Guantanamo Bay and the

military proceedings against him that were further exacerbating his symptoms and suffering.

The environment in Guantanamo lacked stability or any sense of relative safety. This lack of

stability profoundly had exacerbated Mr. al-Nashiri’s complex post-traumatic stress disorder.

From public court filings the expert gathered that the policies and procedures within the

detention facilities were highly variable and unpredictable. The chronic uncertainty conspires

to present him with ever-changing rules and procedures, whose rationales are obscure to the

point of arbitrary. There is an almost daily retraumatization of Mr. al-Nashiri and no adequate

mental health care to provide him the tools to deal with that. The military trial process was a

principal driver of this instability. Rules governing hearings and how the issues will be dealt

with were highly fluid and unpredictable.18

35.

The source claims that this situation remains as described above. On 14 December

2021, the same expert testified before the Military Commission in Mr. al-Nashiri’s case. He

still gets nauseated and vomits from flashbacks to a period when agents confined him nude

and shivering inside a chilled, cramped box. In these conditions, the journey to court is

allegedly traumatic for Mr. al-Nashiri and interferes with his ability to concentrate on the

death penalty proceedings and his defence.

36.

The source states that the above confirms that the detention of Mr. al-Nashiri in

Guantanamo Bay is arbitrary and falls within category III, due to a total non-observance of

the international norms relating to the right to a fair trial.

37.

According to article 9 (2) of the Covenant, anyone who is arrested shall be informed,

at the time of arrest, of the reasons for his or her arrest, enabling the person to seek release if

the legal basis for the detention is unfounded. An arrest is arbitrary when carried out without

informing the arrested person of its reasons. According to article 14 (3) (a) of the Covenant,

in the determination of any criminal charge, the accused shall be entitled to be informed

promptly and in detail in a language which he understands of the nature and cause of the

charges. Although Mr. al-Nashiri was captured in October 2002, United States authorities

brought charges against him for trial before a military commission only on 30 June 2008. He

was therefore held without charge for almost six years.

38.

Furthermore, all charges against him were dropped on 5 February 2009. He continued

to be detained, however, without charges until 20 April 2011, when the Military Commission

initiated prosecution again. He was therefore held without charge for a second period of over

two years.

39.

Considering the foregoing, the source claims that Mr. al-Nashiri’s rights under articles

9 and 14 of the Covenant where violated, making his detention arbitrary under category III.

Category V

40.

The source submits that Mr. al-Nashiri, a citizen of Saudi Arabia and a Muslim, is

being held in indefinite detention on a discriminatory basis because of his status as a foreign

national and his religious beliefs.

41.

Guantanamo Bay is a military detention camp holding exclusively Muslim foreign

nationals. The detention regime was created for the specific purpose of detaining “foreign

18 Declaration of an expert appointed by the United States Department of Defense on 7 March 2012,

regarding the physical and mental evaluation of Mr. al-Nashiri, 24 October 2015

(https://perma.cc/WNN5-YP3X).

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Muslim men” and “the existence of a particularly severe detention regime and a severely

restrictive justice system exclusively designed to hold and try aliens, all of them Muslim,

constitutes a violation of the non-discrimination clause (…)”.19

42.

The Working Group has previously concluded that an individual in Guantanamo Bay

had been subjected to prolonged detention on discriminatory grounds because of his status

as a foreign national and his religious beliefs as a Muslim.20 The deprivation of liberty of Mr.

al-Nashiri appears to violate articles 2, 5 and 6 of the 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 United Nations Basic

Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before Court.

Response from the Governments

43.

On 22 July 2022, the Working Group transmitted the source’s allegations to the

Governments of Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, the United

Arab Emirates and the United States, requesting them to provide, by 20 September 2022,

detailed information about the circumstances surrounding the detention and transfer of Mr.

al-Nashiri, as well as to clarify the legal provisions justifying his deprivation of liberty and

its compatibility with relevant obligations under international law.

44.

Afghanistan, Thailand, the United Arab Emirates and the United States did not

respond to the communication. Lithuania submitted its response on 28 September 2022, after

the deadline, and it therefore could not be taken as if presented on time.

45.

In its response of 19 September 2022, Poland notes that the Public Prosecution Service

investigated officials exceeding their powers in various localities during the period from 2001

to 2005 by allowing places of isolation where persons suspected of terrorism were held to

function. On 30 November 2020, the Public Prosecution Service partially discontinued this

investigation, a decision that was upheld by the courts on 7 September 2021. The Public

Prosecution Service made another request for international legal assistance to the United

States, on 29 January 2021. While awaiting the implementation of the request, the

investigation was suspended, on 26 February 2021. Poland is involved in the execution of

the judgment of the European Court of Human Rights in the case of Al Nashiri v. Poland

(application No. 28761/11), in which a number of violations of the European Convention on

Human Rights were identified. Poland notes that it paid the applicant the just satisfaction

awarded by the European Court of Human Rights.

46.

In its response of 20 September 2022, Romania refers to the judgment of the European

Court of Human Rights in the case of Al Nashiri v. Romania (application No. 33234/12)

rendered on 31 May 2018. Romania contested the applicant’s version of the facts on all

accounts, maintaining that there was no evidence demonstrating that they occurred. The

Government referred to the findings of the Court that Mr. al-Nashiri had been transferred to

and secretly detained in Romania, where he was subjected to treatment that could at a

minimum amount to ill-treatment; such as blindfolding, incommunicado and solitary

confinement, continuous noise or light and the use of leg shackles in all aspects of detainee

management and movement. The European Court found a violation of article 5, pertaining to

Mr. al-Nashiri’s secret detention in Romania and that Romania enabled the authorities of the

United States to transfer him from its territory, in spite of a real risk that he would be

subjected to further undisclosed detention.

47.

In its response of 20 September 2022, Morocco states that its judicial investigations

and inquiries concluded that Mr. al-Nashiri never registered a stay in Morocco. The

authorities categorically reject the allegations.

19 Inter-American Commission on Human Rights, Towards the Closure of Guantanamo (2015), paras.

221 and 226.

20 Opinion No. 89/2017, para. 62.

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Further comments from the source

48.

The source stressed that the replies from Poland and Romania confirm that Mr. al-

Nashiri was indeed transferred to and from and was detained in the territories of both

countries, where he was also mistreated. This was possible due to the cooperation of the

authorities of those Governments with the United States. The source notes that the reply from

Morocco that no stay of Mr. al-Nashiri had been recorded represents an element of this

extremely grave arbitrary detention.

Discussion

49.

The Working Group thanks the Governments of Lithuania, Morocco, Poland and

Romania for their replies. In determining whether Mr. al-Nashiri’s detention was arbitrary,

the Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has established a prima facie case for 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.21 In the absence of responses

from the Governments of Afghanistan, Thailand, the United Arab Emirates and the United

States, the Working Group has decided to render the present opinion, in conformity with

paragraph 15 of its methods of work.

50.

The Working Group notes that it previously adopted an opinion in relation to Mr. al-

Nashiri and 25 other individuals. In opinion No. 29/2006, it found that the detention of Mr

al-Nashiri, along with 25 others, was arbitrary, being in contravention of article 9 of the

Covenant and falling under category I. When the opinion was adopted, Mr. al-Nashiri was

detained by Central Intelligence Agency in its black sites. In early September 2006, he was

transferred to Guantanamo Bay and is being held there by the Department of Defence.

51.

In the present case, the Working Group considers it appropriate to adopt a new opinion,

given that the circumstances have changed and there are new issues warranting

consideration.22 While the initial petition focused on his detention in Central Intelligence

Agency black sites, the current submission focuses on his detention in Guantanamo Bay and

alleges new violations of Mr. al-Nashiri’s rights.

52.

In addition, his physical and mental health has reportedly deteriorated. The Working

Group will consider whether these conditions might affect his ability to participate in his trial.

Lastly, the Working Group added category V to its methods of work in 2010.23 Given the

allegations raised by the source, the Working Group will consider whether his detention is

arbitrary under this category.

53.

The source has submitted that Mr. al-Nashiri’s detention is arbitrary under categories

I, III and V. As detailed below, these categories are relevant to his treatment by the United

States. For Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand and the United

Arab Emirates only category I and category III (to the extent it concerns torture and cruel,

inhuman or degrading treatment) are potentially relevant to their treatment of Mr. al-Nashiri.

54.

Since 11 September 2001, the Working Group has developed a body of legal analysis

and jurisprudence reaffirming that the prohibition of arbitrary detention is a peremptory norm

(jus cogens) of international law from which no derogation is permitted 24 and that the

prolonged and indefinite detention of individuals at Guantanamo Bay violates that

prohibition.25 The Working Group has set out key principles in this regard, including in

21 A/HRC/19/57, para. 68.

22 Opinions No. 46/2008, No. 12/2010, No. 89/2017, No. 42/2019, and No. 7/2022.

23 A/HRC/36/38, para. 8 (e); and opinion No. 69/2019, para. 50.

24 A/HRC/22/44, para. 51; opinions No. 10/2013, para. 32; No. 50/2014, para. 66; No. 89/2017, para.

36; and No. 70/2019, para. 53.

25 Opinions No. 2/2009, No. 3/2009, No. 10/2013, No. 50/2014, No. 89/2017, and No. 70/2019.

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relation to the States’ obligations under human rights law,26 habeas corpus27 and fair trial

rights,28 as well as in relation to the applicability of international humanitarian law.29 The

Working Group has also stated relevant principles concerning the so-called extraordinary

rendition programme, highlighting its incompatibility with international law.30

Category I

United States of America

55.

The source submits that Mr. al-Nashiri was transferred into the military custody of the

United States in Guantanamo Bay between 4 and 6 of September 2006, where he is still

detained. The source claims that there is no legal basis for Mr. al-Nashiri’s detention under

either domestic or international law, which makes it arbitrary under category I. The source

submits that the United States authorities cannot justify his continued detention under the

Authorization for Use of Military Force (domestic legislation) as it allegedly does not

specifically authorize capture, indefinite or incommunicado detention. 31 The source also

submits that international humanitarian law was not applicable in relation to Mr. al-Nashiri’s

detention, and that even had it been applicable it could never justify his detention during an

endless war on an open-ended enemy.

56.

As the Working Group as previously stated, the global struggle against international

terrorism does not constitute an armed conflict for the purpose of the applicability of

international humanitarian law.32 Following reasoning developed in its previous opinions

related to detainees in Guantanamo Bay, the Working Group concludes that Mr. al-Nashiri

has been subjected to prolonged and indefinite detention at Guantanamo Bay, which the

Working Group has previously found to be arbitrary.33

57.

Any form of detention or imprisonment should be ordered by or be subject to the

effective control of a judicial or other authority, as required under article 9 (4) of the Covenant.

Such an authority should enjoy a status and tenure affording the strongest possible guarantees

of competence, impartiality and independence.34 Mr. al-Nashiri was never granted a hearing

while being transferred between black sites and was only brought before a Combatant Status

Review Tribunal in 2007, five years after the commencement of his detention. The

Combatant Status Review Tribunal did not meet the standards of review by a judicial

authority since, inter alia, it could not review the lawfulness of detention.35 The Working

Group does not consider that Mr. al-Nashiri has been able to challenge the legality of this

detention. The United States Supreme Court has also reached similar conclusions, concluding

that hearings before the Combatant Status Review Tribunal do not satisfy the right to habeas

corpus.36 The source submits that on 2 October 2008, Mr. al-Nashiri filed a habeas corpus

petition before the United States District Court for the District of Columbia (Case No. 08-

1207), which is still pending. The Working Group concludes that the failure to ensure

effective habeas corpus constitutes a denial of an effective remedy under article 8 of the

Universal Declaration of Human Rights and articles 2 (3) and 9 (4) of the Covenant.

26 E/CN.4/2006/120, paras. 10–11; opinion No. 57/2013, para. 55; and Human Rights Committee,

general comment No. 31 (2004), para. 10.

27 E/CN.4/2003/8, paras. 61–64; E/CN.4/2006/7, paras. 68–75; and A/HRC/4/40, paras. 14–15; opinions

No. 44/2005, para. 13; No. 2/2009, para. 27; No. 3/2009, para. 30; No. 53/2016, para. 42; and No.

89/2017, para. 37 (a).

28 A/HRC/36/37/Add.2, para. 78.

29 Opinions No. 43/2006, para. 31; No. 11/2007, para. 11; and No. 89/2017, para. 43.

30 A/HRC/48/55, para. 59; A/HRC/13/42, para. 36; and A/HRC/4/40, para. 49; opinions No. 47/2005,

paras. 19–20; No. 53/2016, paras. 59–60; No. 11/2018, para. 54; and No. 15/2021, para. 94.

31 Opinions No. 10/2013, para. 34; No. 50/2014, para. 69; and No. 70/2019, para. 64.

32 Opinions No. 43/2006, para. 31; No. 11/2007, para. 11; No. 50/2014, para. 68; and No. 89/2017, para.

42; see also A/HRC/13/42, para. 51.

33 Opinions No. 50/2014, No. 53/2016, No. 56/2016, No. 89/2017, and No. 70/2019.

34 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

principle 4; and A/HRC/WGAD/2021/32, para. 40.

35 Opinions No. 2/2009; No. 10/2013, and No. 50/2014; see also opinion No. 89/2017, para. 46.

36 United States Supreme Court, Boumediene v. Bush, 553 U.S. 723 (2008), pp. 60 and 70.

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58.

After his capture in the United Arab Emirates, Mr. al-Nashiri was reportedly rendered

to the Central Intelligence Agency, which transferred him incommunicado to a black site in

Afghanistan in November 2002. Thereafter, he was held in solitary confinement and

incommunicado for four years at other black sites before being transferred to Guantanamo

Bay between 4 and 6 September 2006. According to the source, after having seen and

interviewed Mr. al-Nashiri, ICRC concluded that the totality of the circumstances in which

he was held effectively amounted to an arbitrary deprivation of liberty and enforced

disappearance, in contravention of international law. The apparent determination to prevent

him from being in contact with the outside world while he has been subjected to the

extraordinary rendition programme in various black sites throughout the world and his

ongoing detention in Guantanamo exacerbate the arbitrariness of his detention as it has

prevented him from seeking means to challenge the basis for it. His detention in essentially

incommunicado conditions amounts to an enforced disappearance which has deprived him

of a meaningful opportunity to communicate with his family and/or the outside world. This

amounts to a violation of article 9 (3) of the Covenant.

59.

The source submits that although Mr. al-Nashiri was captured more than 20 years ago,

the United States Government brought charges against him only on 30 June 2008. Mr. al-

Nashiri was therefore not informed of the reasons for his arrest and was held without charge

for almost six years. All charges against Mr. al-Nashiri were dropped on 5 February 2009,

thus removing his case from the military judge’s jurisdiction. However, he continued to be

detained without charges until 20 April 2011, when the Military Commission initiated

prosecution against him again. Mr. al-Nashiri was therefore held without charge for a second

period of detention for over two years. In the absence of a rebuttal from the Government, the

Working Group thus finds that Mr. al-Nashiri’s rights under articles 9 (2), and 14 (3) (a) of

the Covenant were violated.37

60.

Finally, the United States violated Mr. al-Nashiri’s rights through its overarching role

in the extraordinary rendition programme, which involved transferring him to or from the

various countries listed herein, outside the protection of the law. This amounts to a violation

of article 9 (1) of the Covenant. In addition to the violations of articles 9 (2), 9 (3) and 9 (4)

of the Covenant, this makes his detention arbitrary under category I.

United Arab Emirates

61.

The source submits that in mid-October 2002, Mr. al-Nashiri was captured in Dubai,

United Arab Emirates, by the local authorities and that no warrant was presented. He was

interrogated for the first month after the arrest by agents of the United Arab Emirates. The

United Arab Emirates has not responded to these allegations.

62.

The right to be presented with an arrest warrant or equivalent (except for arrests made

in flagrante delicto) is procedurally inherent in the right to liberty and security of person and

the prohibition of arbitrary detention under articles 3 and 9 of the Universal Declaration of

Human Rights and principles 2, 4, 10 and 12 (1) of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment.38 By failing to present an

arrest warrant, the United Arab Emirates did not invoke a legal basis for Mr. al-Nashiri’s

detention.39

63.

In addition, Mr. al-Nashiri was denied the right to take proceedings before a court in

the United Arab Emirates to challenge the legality of his detention, in violation of articles 3

and 9 of the Universal Declaration of Human Rights and principles 11 and 32 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.40

Judicial oversight of detention is a fundamental safeguard of personal liberty and is essential

in ensuring that detention has a legal basis.41 Given that Mr. al-Nashiri had no opportunity to

challenge his detention, his right to an effective remedy under article 8 of the Universal

37 A/HRC/49/45; A/HRC/36/37/Add.2; CCPR/C/USA/CO/4; opinions No. 89/2017, and No. 70/2019.

38 Opinions No. 33/2020, para. 54; and No. 65/2020, para. 75.

39 Opinions No. 45/2019, para. 51; and No. 4/2021, para. 83.

40 Opinion No. 33/2020, para. 56.

41 A/HRC/30/37, para. 3.

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Declaration of Human Rights was violated and his deprivation of liberty falls within category

I.

64.

The source further submits that Mr. al-Nashiri was rendered to the Central Intelligence

Agency on 10 November 2002. This transfer lacked the procedural safeguards required under

international law and constitutes an extraordinary rendition, in violation of article 9 of the

Universal Declaration of Human Rights, and is arbitrary under category I.

Afghanistan

65.

The source submits that Mr. al-Nashiri was detained twice in Afghanistan between

2002 and 2006. He was reportedly rendered to the Central Intelligence Agency, which, on 10

November 2002, transferred him to a secret prison in Afghanistan, where he was detained

until 15 November 2002. Mr. al-Nashiri was then allegedly held in continuous solitary

confinement and incommunicado detention for four years at several other Central

Intelligence Agency black sites. Between 25 and 26 March 2006, he was transferred back to

a secret detention site in Afghanistan, before being transferred to Guantanamo Bay in

September 2006. It is sufficiently demonstrated that the Afghan authorities were aware of the

arbitrariness of his detention, noting the lack of any demonstrated lawful basis for it,

particularly in the light of the involvement of the Central Intelligence Agency. 42

Consequently, absent any Government response, the Working Group considers that

Afghanistan is responsible for complicity in the extraordinary rendition programme and for

violating Mr. al-Nashiri’s rights while he was on its territory and when he was transferred

from its territory, as it was aware of the foreseeable risk of further violations against him.

Because of the involvement of Afghanistan in Mr. al-Nashiri’s mistreatment concerned the

lack of any demonstrated lawful basis for his deprivation of liberty but did not concern the

subsequent proceedings in the United States and Guantanamo Bay (and deficiencies therein),

the Working Group considers that Afghanistan participated in the violation of article 9 of the

Covenant and thereby in Mr. al-Nashiri’s arbitrary detention under category I.

Thailand

66.

The source submits that on 15 November 2002, United States authorities took Mr. al-

Nashiri to a secret prison in Thailand, where he was detained between 4 and 5 December

2002. It is sufficiently demonstrated that Thai authorities were aware of the arbitrariness of

his detention, noting the lack of any demonstrated lawful basis for it, particularly in the light

of the involvement of the Central Intelligence Agency.43 In the absence of a response from

the Government, the Working Group considers that Thailand is responsible for complicity in

the extraordinary rendition programme and violating Mr. al-Nashiri’s rights while he was on

its territory and when he was transferred from its territory, as it was aware of the foreseeable

risk of further violations against him. Because of the involvement of Thailand in Mr. al-

Nashiri’s mistreatment concerned the lack of any demonstrated lawful basis for his

deprivation of liberty but did not concern the subsequent proceedings in the United States

and Guantanamo Bay (and deficiencies therein), the Working Group considers that Thailand

participated in Mr. al-Nashiri’s arbitrary detention under category I.

Poland

67.

The source submits that between 4 and 5 December 2002, Mr. al-Nashiri was rendered

to a black site in Poland where he was detained until 6 June 2003. Poland acknowledges

being found to have violated Mr. al-Nashiri’s rights and refers to paying just satisfaction to

him as ordered by the European Court of Human Rights. However, Poland also notes that it

has discontinued an investigation into public officials exceeding their powers concerning

secret detention sites and has suspended another related investigation. The Working Group

acknowledges the payment of just satisfaction, but also considers that this reaffirms the

complicity of Poland in and its partial responsibility for Mr. al-Nashiri’s arbitrary detention

and rights violations. The Working Group thus considers that Poland is responsible for

complicity in the extraordinary rendition programme and for violating Mr. al-Nashiri’s rights

42 A/HRC/49/45, para. 37 (d).

43 Ibid.

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while he was on its territory and when he was transferred from its territory as it was aware of

the foreseeable risk of further violations. In relation to the discontinuance of investigations

into public officials, the Working Group considers that this constitutes a violation of Mr.

Nashiri’s right to an effective remedy under article 8 of the Universal Declaration of Human

Rights and article 2 (3) of the Covenant. While the European Court has addressed the case,

the Working Group does not consider that this deprives it of jurisdiction. 44 Because the

involvement of Poland in Mr. al-Nashiri’s mistreatment concerned the lack of any

demonstrated lawful basis for his deprivation of liberty but did not concern the subsequent

proceedings in the United States and Guantanamo Bay (and deficiencies therein), the

Working Group considers that Poland participated in Mr. al-Nashiri’s arbitrary detention

under category I.

Romania

68.

The source submits that on 12 April 2004, Mr. al-Nashiri was rendered to a black site

in Romania, where he was detained until 5 October 2005. While Romania contested the

applicant’s version of the facts, it refers to the findings of the European Court of Human

Rights that Mr. al-Nashiri was transferred to and secretly detained in Romania, where he was

subjected to treatment that, at a minimum, could amount to ill-treatment. The Working Group

thus considers that Romania is responsible for complicity in the extraordinary rendition

programme and for violating Mr. al-Nashiri’s rights while he was on its territory and when

he was transferred from its territory as it was aware of the foreseeable risk of further

violations. While the European Court has addressed the case, the Working Group does not

consider that this deprives it of jurisdiction.45 Because the involvement of Romania in Mr. al-

Nashiri’s mistreatment concerned the lack of any demonstrated lawful basis for his

deprivation of liberty but did not concern the subsequent proceedings in the United States

and Guantanamo Bay (and deficiencies therein), the Working Group considers that it

participated in the violation of article 9 of the Covenant and thereby his arbitrary detention

under category I.

Lithuania

69.

The source submits that on 5 October 2002, Mr. al-Nashiri was transferred to

Lithuania in a rendition operation and was held at a secret location for over five months, until

March 2006. In its late reply, while Lithuania refers to the decision of the European Court of

Human Rights in the case of Abu Zubaydah v. Lithuania (application No. 46454/11), which

acknowledges the participation of Lithuania in the implementation of the Central Intelligence

Agency high-value detainee programme in 2005–2006, it submits that there is no objective

data demonstrating thar Mr. al-Nashiri was detained in Lithuania through that programme.

The Working Group concludes that it is sufficiently demonstrated that Lithuanian authorities

were aware of the arbitrariness of his detention, noting the lack of any demonstrated lawful

basis for it, particularly in the light of the involvement of the Central Intelligence Agency,46

including Mr. al-Nashiri’s reported status as a high-value detainee. Thus, Lithuania is

responsible for complicity in the extraordinary rendition programme and for violating Mr. al-

Nashiri’s rights while he was on its territory and when he was transferred from its territory

as it was aware of the foreseeable risk of further violations. Because the involvement of

Lithuania in Mr. al-Nashiri’s mistreatment concerned the lack of any demonstrated lawful

basis for his deprivation of liberty but did not concern the subsequent proceedings in the

United States and Guantanamo Bay (and deficiencies therein), the Working Group considers

that it participated in the violation of article 9 of the Covenant and thereby his arbitrary

detention under category I.

Morocco

70.

The source submits that on 6 June 2003, Mr. al-Nashiri was taken to a secret Central

Intelligence Agency prison in Morocco and detained there until 23 September 2003, when he

44 See A/HRC/36/38 and opinion No. 89/2018, paras. 64–67.

45 Ibid.

46 A/HRC/49/45, paras. 12 and 37 (d).

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was transported to Guantanamo Bay for the first time. In its reply, the Government of

Morocco states that his visit there was never “registered”. In the Working Group’s view, the

fact that his visit was never registered is insufficient to undermine the source’s prima facie

credible allegation that he was present in Morocco during that period. Indeed, a lack of

registration of his visit would be expected in the case of extraordinary rendition and secret

detention. The Working Group thus considers that Morocco is responsible for complicity in

the extraordinary rendition programme and for violating Mr. al-Nashiri’s rights while he was

on its territory and when he was transferred from its territory as it was aware of the

foreseeable risk of further violations. Because the involvement of Morocco concerned the

lack of any demonstrated lawful basis for his deprivation of liberty but did not concern the

subsequent proceedings in the United States and Guantanamo Bay (and deficiencies therein),

the Working Group considers that it participated in his arbitrary detention under category I,

in violation of article 9 the Covenant and thereby his arbitrary detention under category I.

71.

The Working Group recalls that the principle of joint responsibility applies to States

that aid or assist other States in the commission of an internationally wrongful act, as

elaborated, inter alia, in article 16 of the articles on responsibility of States for internationally

wrongful acts. In the light of its findings above, the Working Group is satisfied that the

Governments of Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, the United

Arab Emirates and United States played a role in the extraordinary rendition programme,

whether through directly detaining persons subjected to it or through knowingly assisting the

implementation of the programme through transport access and the provision of locations for

unregistered detention sites. These States are all jointly responsible for the arrest, rendition

and arbitrary detention of Mr. al-Nashiri,47 which amount to violations of article 9 of the

Covenant and render his detention arbitrary under category I.

72.

The Working Group recalls that the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering terrorism

recommended the establishment–or, where applicable, the reopening–by the Governments of

Lithuania, Morocco, Poland, Romania and Thailand of effective independent judicial or

quasi-judicial inquiries into credible allegations that secret Central Intelligence Agency

“black sites” were established on their territories.48

Category III

73.

Under category III, the first key issue is whether the governmental authorities played

a role in the torture or cruel, inhuman or degrading treatment that the source alleges Mr. al-

Nashiri suffered or had substantial grounds to believe that the extraordinary rendition

programme that they participated in involved torture or cruel, inhuman or degrading

treatment.

74.

Individuals should not be expelled to another country when there are substantial

grounds for believing that their lives would be at risk or that they would be in danger of being

subjected to torture or cruel, inhuman or degrading treatment.49 This is sometimes considered

under the principle of non-refoulement. Torture itself is a peremptory norm of international

law, article 5 of the Universal Declaration of Human Rights, article 7 of the Covenant and

articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment.50 The prohibition of torture, which is non-derogable, including

during the fight against terrorism because of its status as a jus cogens norm, 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.51

47 Opinion No. 84/2020, para. 72.

48 A/HRC/49/45, para. 37 (d).

49 A/HRC/48/55, para. 59; A/HRC/13/42, para. 36; and A/HRC/4/40, para. 49; see also opinions No.

47/2005, paras. 19–20; No. 53/2016, paras. 59–60; No. 11/2018, para. 54; and No. 15/2021, para. 94.

50 The Working Group notes the reservations to article 7 of the Covenant and to the Convention against

Torture. However, it considers that the alleged treatment of Mr. al-Nashiri is of such a grave nature

that it would violate any internationally accepted definition of torture and cruel, inhuman or

degrading treatment or punishment.

51 Opinion No. 89/2017, paras. 41–45.

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75.

The Working Group notes that Mr. al-Nashiri was transferred from the United States

to the custody of (or under the control of or with the assistance of) Afghanistan, Lithuania,

Morocco, Poland, Romania, Thailand and the United Arab Emirates as part of the

extraordinary rendition programme. Given that the whole extraordinary rendition programme

system was established outside of the usual legal controls, and given the information set out

above regarding the role of those States in carrying out mistreatment on behalf of the United

States or participating in the programme with knowledge of its nature, the Working Group

considers that, along with the United States, Afghanistan, Lithuania, Morocco, Poland,

Romania, Thailand and the United Arab Emirates had, at minimum, substantial grounds to

believe that Mr. al-Nashiri would be subjected to torture or cruel, inhuman or degrading

treatment as a result of his inclusion in the extraordinary rendition programme. The Working

Group recalls the conclusion of the European Court of Human Rights that the rationale behind

the programme was specifically to remove those persons from any legal protection against

torture and enforced disappearance and to strip them of any safeguards afforded by both the

United States Constitution and international law against arbitrary detention. The whole

scheme had to operate outside the jurisdiction of the United States courts and in conditions

securing its absolute secrecy, which required setting up, in cooperation with the host

countries, overseas detention facilities.

76.

The Working Group notes with grave concern the allegations regarding the use of

enhanced interrogation techniques by the Central Intelligence Agency on Mr. al-Nashiri.

Considering the source’s detailed submissions, and in the absence of a governmental

response, the Working Group finds credible the source’s allegations of extreme physical and

psychological torture against Mr. al-Nashiri, in violation of the absolute prohibition of torture

as a peremptory norm of international law, article 5 of the Universal Declaration of Human

Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against Torture.52 It

is also cognizant of the determination of the European Court of Human Rights that he was

tortured and ill-treated.53 The Working Group further notes that the denial of medical care

can constitute a form of torture. 54 The Working Group calls upon the Governments of

Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, the United Arab Emirates and

the United States to investigate the alleged torture and mistreatment of Mr. al-Nashiri, in

accordance with their obligations under articles 4, 12 and 13 of the Convention against

Torture, and to prosecute anyone found to have been involved.

77.

Taking into account the severity of the alleged torture and its impact upon Mr. al-

Nashiri, as detailed above, the Working Group considers it extremely unlikely that he would

have been able to effectively participate in the legal proceedings that were conducted (or in

any future legal proceedings), reinforcing the conclusion that his right to a fair trial was

violated.55 The Working Group refers the case to the Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment.

78.

The Working Group recalls the articles on responsibility of States for internationally

wrongful acts, particularly article 16, on aid or assistance. For the reasons set out above, it

considers that the Governments of Afghanistan, Lithuania, Morocco, Poland, Romania,

Thailand, the United Arab Emirates and the United States are jointly responsible for the

torture and cruel, inhuman or degrading treatment of Mr. al-Nashiri, and that this deprives

him of the meaningful ability to benefit from a fair trial, should a trial ever occur. These

violations of article 5 of the Universal Declaration of Human Rights, article 7 of the Covenant

and articles 2, 15 and 16 of the Convention against Torture result in serious violations of

article 14 of the Covenant, which render the detention arbitrary under category III.

52 Opinion No. 89/2017, paras. 41–45.

53 European Court of Human Rights, Al-Nashiri v. Poland, Application No. 28761/11, Judgment, 24

July 2014, paras. 511–516, and Al-Nashiri v. Romania, paras. 670–675.

54 A/HRC/38/36, para. 18; opinions No. 20/2022, para. 103; No. 46/2022, para. 83; and No. 54/2022,

para. 91.

55 Opinions No. 29/2017, para. 63; No. 47/2017, para. 28; No. 52/2018, para. 79 (j); and No. 53/2018,

para. 77 (c). See also E/CN.4/2004/3/Add.3, para. 33.

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Additional category III

79.

The source alleges that the United States failed to observe international fair trial

guarantees. On procedural safeguards relevant to category III, while there is considerable

overlap with the issues raised in category I, the analysis below builds on that discussion, with

a specific focus on matters of fair trial and due process.

80.

Mr. al-Nashiri has been deprived of his liberty for more than 20 years with no

indication when, if ever, he will be brought to trial or released. Such a prolonged period with

no resolution of proceedings is excessive, unfair and contrary to due process. It violates Mr.

Nashiri’s rights, under article 9 (3) of the Covenant, to be tried within a reasonable time, and

under article 14 (3) (c) of the Covenant, to be tried without undue delay.56 Such a long delay

is particularly problematic as he will be significantly hampered in his ability to recall events

and thus to present a defence, should any trial ever occur. Principles applicable to the

deprivation of liberty of persons accused of acts of terrorism include the right to a fair trial.57

Legal provisions under international humanitarian law allowing the United States to hold

belligerents without charges or access to counsel for the duration of hostilities cannot be

invoked to justify their detention.58

81.

The source alleges that Mr. al-Nashiri saw a lawyer for the first time in 2008, six years

after being detained. All persons deprived of their liberty have the right to legal assistance by

counsel at any time during detention, including immediately after apprehension.59 Based on

the source’s unrefuted submissions, the Working Group thus concludes that Mr. al-Nashiri

was not afforded this right under article 14 (3) (b) of the Covenant and principles 11 (2), 17

and 18 of the Body of Principles. Even when he was allowed access to lawyers, the United

States authorities reportedly monitored Mr. al-Nashiri’s conversations and limited attorney-

client confidentiality. The confidentiality of lawyer-client communications must be respected

as an essential fair trial guarantee.60 Lack of access to counsel or the denial of the right to

communicate privately with counsel contributes to the characterization of detention as

arbitrary.

82.

On Mr. al-Nashiri’s hearing before the Combatant Status Review Tribunal in 2007,

the Working Group considers that these proceedings did not meet the standards of article 14

(1) of the Covenant. The procedures of the Combatant Status Review Tribunal are not

adequate to satisfy the right to a fair and independent trial.61 The source submits that the

United States did not respect the equality of arms and failed to ensure that a lawyer was

available. A personal representative, who did not act as counsel, was appointed for Mr. al-

Nashiri. Mr. al-Nashiri was reportedly not permitted access to any classified evidence against

him or allowed to refute the accusations made against him. Absent any Government response,

the Working Group thus finds that Mr. al-Nashiri’s rights under articles 14 (1), 14 (3) (b) and

14 (3) (e) of the Covenant were violated.62 The Working Group refers this case to the Special

Rapporteur on the independence of judges and lawyers.

83.

The fair trial violations set out above violate articles 2, 9 and 14 of the Covenant and

are of such gravity as to give the deprivation of liberty of Mr. al-Nashiri an arbitrary character

under category III.

56 Opinion No. 89/2017, para. 54.

57 A/HRC/7/4, paras. 59–73.

58 E/CN.4/2006/120, paras. 19 and 21.

59 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, principle 9 and guideline 8.

60 Ibid., principle 9, para. 15, and guideline 8, para. 69; the United Nations Standard Minimum Rules for

the Treatment of Prisoners (the Nelson Mandela Rules), rule 61 (1); see also opinions No. 89/2017,

para. 53; and No. 83/2018, paras. 62–63.

61 Opinions No. 2/2009, para. 32; No. 10/2013, para. 35; No. 50/2014, para. 72; No. 89/2017, para. 46

No. 3/2018, para. 57; No. 73/2018, para. 61; No. 4/2019, para. 58; and No. 46/2019, para. 66. See

also A/HRC/27/48, paras. 66–71 and 85–86.

62 Opinions No. 19/2005, para. 28 (b); No. 50/2014, para. 77; No. 89/2017, para. 56; No. 18/2018, para.

53; and No. 78/2018, paras. 78–79.

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Category V

84.

The source submits that Mr. al-Nashiri, a Muslim, is being held in indefinite detention

on a discriminatory basis because of his status as a foreign national and his religious beliefs,

noting that Guantanamo Bay is a military detention camp holding exclusively Muslim foreign

nationals. The source notes that the Inter-American Commission on Human Rights concluded

that the detention regime in Guantanamo was created for the specific purpose of detaining

“foreign Muslim men” and “the existence of a particularly severe detention regime and a

severely restrictive justice system exclusively designed to hold and try aliens, all of them

Muslim, constitutes a violation of the non-discrimination clause in the American

Declaration”. The Working Group has previously found the detention of individuals in

Guantánamo to be discriminatory.63

85.

The Working Group thus finds that Mr. al-Nashiri has been deprived of the fair trial

guarantees that would ordinarily apply within the judicial system of the United States. By

discriminating on the basis of this status as a foreign national and his religion, the United

States has denied Mr. al-Nashiri equality before the law in violation of articles 2, 5 (a) and

(b) and 6 of the International Convention on the Elimination of All Forms of Racial

Discrimination,64 articles 2 and 7 of the Universal Declaration of Human Rights and articles

2 (1) and 26 of the Covenant65 and indicate arbitrary detention under category V.

Concluding remarks

86.

The Working Group is concerned about the physical and mental well-being of Mr. al-

Nashiri, who has been arbitrarily detained for more than 20 years. It recalls the findings in

October 2015 by an expert medical doctor appointed by the Department of Defense, stating

that he was a most severely traumatized individual, that there was no present effort to treat

the damage done to him and that there appeared to be efforts to block others from giving him

appropriate clinical care.

87.

The submissions that Mr. al-Nashiri was tortured stand unrefuted, and the European

Court of Human Rights has confirmed them. The Working Group notes that medical care at

Guantanamo Bay has been and remains grossly deficient. The Working Group is obliged to

remind the Government of the United States that all persons deprived of their liberty must be

treated with humanity and with respect for the inherent dignity of the human person, in

accordance with article 10 of the Covenant. Denial of medical assistance constitutes a

violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the

Nelson Mandela Rules), in particular rules 1, 24, 25, 27 and 30. The Working Group refers

the case to the Special Rapporteur on the right to health.

88.

While the Working Group has specifically addressed Mr. al-Nashiri’s case in this

opinion, the conclusions reached here also apply to other detainees in similar situations at

Guantanamo Bay. This is one of several cases brought before the Working Group concerning

arbitrary detention in Guantanamo.66 Under certain circumstances, widespread or systematic

imprisonment or other severe deprivation of liberty, in violation of international law, may

constitute crimes against humanity.67

89.

The Special Rapporteur on counter-terrorism and human rights has underscored the

evolution of practices from secret detention to transnational transfer in counter-terrorism

contexts: an abject lack of adherence to fundamental human rights norms, thin lines of

63 Opinions No. 10/2013, No. 50/2014, and No. 70/2019; see also CERD/C/USA/CO/7-9, para. 22; and

opinion No. 89/2017, para. 62.

64 Committee on the Elimination of Racial Discrimination, general recommendation 30 (2004), paras.

19–21, and general recommendation 31 (2005).

65 The United States Government has expressed its understanding of articles 2 and 26 of the Covenant

that distinctions based on factors such as race or religion are permitted when such distinctions are

rationally related to a legitimate government objective. However, the Government has not explained

how military commissions, which have in practice only prosecuted Muslim men who are not United

States nationals, are a proportionate means of achieving a legitimate objective. Declarations and

reservations to the Covenant are available at https://treaties.un.org.

66 Opinions No. 2/2009, No. 3/2009, No. 10/2013, No. 50/2014, and No. 89/2017.

67 Opinion No. 47/2012, para. 22.

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GE.23-09052

17

judicial oversight, meagre to non-existent legal and/or political accountability, targeting of

religious and ethnic minorities, and a high degree of tolerance by democratic and non-

democratic States alike for the subversion of the rule of law to enable persons to be rendered

to jurisdictions where they have a high likelihood of being subjected to arbitrary detention,

surveillance, and torture and other cruel, inhuman and degrading treatment or punishment.68

90.

As the Working Group stated during its visit to the United States in 2016, it remains

deeply concerned about the ongoing operation of the detention facility at Guantanamo Bay.

The closure of Guantanamo was previously an important priority of the Government. The

Working Group urges the Government to once again prioritize the closing of that facility. In

the meantime, the Working Group urges the Government to cooperate with United Nations

human rights mechanisms.

91.

The Working Group would welcome an invitation to undertake a follow-up visit to

the United States, with specific authorization to visit Guantanamo Bay. According to the

terms of reference for country visits by the Working Group, such a visit would need to be

conducted under conditions that allow its members to have unrestricted full access to the

facility and to hold private and confidential interviews with any detainee.69

Disposition

92.

In the light of the foregoing, the Working Group renders the following opinion:

Regarding the United States:

The deprivation of liberty of Abd al-Rahim Hussein al-Nashiri, being in contravention

of articles 2, 5, 7, 9 and 10 of the Universal Declaration of Human Rights and articles

2 7, 9, 10, 14 and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I, III and V.

Regarding Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand and the United

Arab Emirates:

The deprivation of liberty of Abd al-Rahim Hussein al-Nashiri, being in contravention

of articles 5, 9 and 10 of the Universal Declaration of Human Rights and articles 7, 9,

10 and 14 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I and III.

93.

The Working Group requests the Governments of Afghanistan, Lithuania, Morocco,

Poland, Romania, Thailand, the United Arab Emirates and the United States, found to be

responsible for the violations of the rights of Mr. al-Nashiri, to take the steps necessary to

remedy the situation of Mr. al-Nashiri without delay and to bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

94.

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

case, the appropriate remedy would be to release Mr. al-Nashiri immediately and accord him

an enforceable right to compensation and other reparations, in accordance with international

law.

95.

The Working Group urges the Governments found to be responsible for the violations

of his rights, as detailed herein, to ensure a full and independent investigation of the

circumstances surrounding the arbitrary deprivation of liberty of Mr. al-Nashiri, including an

independent inquiry into his allegations of torture, and to take appropriate measures against

those responsible for the violation of his rights.

96.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, the Special Rapporteur on counter-terrorism and human rights, the

68 A/HRC/49/45, para. 5.

69 See https://www.ohchr.org/en/special-procedures/wg-arbitrary-detention; see also the revised terms of

reference for country visits by Special Procedures mandate holders of the Human Rights Council

(www.ohchr.org/sites/default/files/Documents/HRBodies/SP/ToRs2016.pdf).

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Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur

on the right of everyone to the enjoyment of the highest attainable standard of physical and

mental health.

97.

The Working Group requests the Governments to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

98.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, United Arab

Emirates and the United States to provide it with information on action taken in follow-up to

the recommendations made in the present opinion, including:

(a)

Whether Mr. al-Nashiri has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. al-Nashiri;

(c)

Whether an investigation has been conducted into the violation of Mr. al-

Nashiri’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 States concerned with their international obligations

in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

99.

Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, the United Arab

Emirates and the United States are invited to inform the Working Group of any difficulties

that they 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.

100. The Working Group requests the source and Afghanistan, Lithuania, Morocco, Poland,

Romania, Thailand, the United Arab Emirates and the United States to provide the above-

mentioned information within six months of the date of 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.

101.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has 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.70

[Adopted on 15 November 2022]

70 Human Rights Council resolution 51/8, paras. 6 and 9.