VII. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
83. International human rights law is applicable to the analysis of the situation of detainees in Guantanamo Bay. Indeed, human rights law applies at all times, even during situations of emergency and armed conflicts. The war on terror, as such, does not constitute an armed conflict for the purposes of the applicability of international humanitarian law. The United States of America has not notified to the Secretary-General of the United Nations or other States parties to the treaties any official derogation from the International Covenant on Civil and Political Rights or any other international human rights treaty to which it is a party.
84. The persons held at Guantanamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantanamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.
85. The executive branch of the United States Government operates as judge, prosecutor and defence counsel of the Guantanamo Bay detainees: this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article 14 of the ICCPR.
86. Attempts by the United States Administration to redefine “torture” in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming.
87. The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention.
Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.
88. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture.
89. The practice of rendition of persons to countries where there is a substantial risk of torture, such as in the case of Mr. Al Qadasi, amounts to a violation of the principle of non-refoulement and is contrary to article 3 of the Convention against Torture and Article 7 of ICCPR.
90. The lack of any impartial investigation into allegations of torture and ill-treatment
and the resulting impunity of the perpetrators amount to a violation of articles 12 and 13 of the Convention against Torture.
91. There are reliable indications that, in different circumstances, persons detained in the Guantanamo Bay detention facilities have been victims of violations of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the 1981 Declaration. It is of particular concern that some of these violations have even been authorized by the authorities. In addition, some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees.
92. The totality of the conditions of their confinement at Guantanamo Bay constitute a right-to-health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees.
93. There are also serious concerns about the alleged violations of ethical standards by health professionals at Guantanamo Bay and the effect that such violations have on the quality of health care, including mental health care, the detainees are receiving.
94. The treatment of the detainees and the conditions of their confinement has led to prolonged hunger strikes. The force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved.
83. International human rights law is applicable to the analysis of the situation of detainees in Guantanamo Bay. Indeed, human rights law applies at all times, even during situations of emergency and armed conflicts. The war on terror, as such, does not constitute an armed conflict for the purposes of the applicability of international humanitarian law. The United States of America has not notified to the Secretary-General of the United Nations or other States parties to the treaties any official derogation from the International Covenant on Civil and Political Rights or any other international human rights treaty to which it is a party.
84. The persons held at Guantanamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantanamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.
85. The executive branch of the United States Government operates as judge, prosecutor and defence counsel of the Guantanamo Bay detainees: this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article 14 of the ICCPR.
86. Attempts by the United States Administration to redefine “torture” in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming.
87. The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention.
Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.
88. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture.
89. The practice of rendition of persons to countries where there is a substantial risk of torture, such as in the case of Mr. Al Qadasi, amounts to a violation of the principle of non-refoulement and is contrary to article 3 of the Convention against Torture and Article 7 of ICCPR.
90. The lack of any impartial investigation into allegations of torture and ill-treatment
and the resulting impunity of the perpetrators amount to a violation of articles 12 and 13 of the Convention against Torture.
91. There are reliable indications that, in different circumstances, persons detained in the Guantanamo Bay detention facilities have been victims of violations of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the 1981 Declaration. It is of particular concern that some of these violations have even been authorized by the authorities. In addition, some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees.
92. The totality of the conditions of their confinement at Guantanamo Bay constitute a right-to-health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees.
93. There are also serious concerns about the alleged violations of ethical standards by health professionals at Guantanamo Bay and the effect that such violations have on the quality of health care, including mental health care, the detainees are receiving.
94. The treatment of the detainees and the conditions of their confinement has led to prolonged hunger strikes. The force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved.
