4. At no time were the detentions at Guantánamo Bay placed in a “legal black hole”. International human rights law has always been fully applicable to all prisoners. For persons captured during an international armed conflict in Afghanistan, the protection of certain rights may have been complemented by provisions of international humanitarian law (IHL) for the duration of that conflict. However, since the end of this international armed conflict, international human rights standards have been applied normally. 41. However, in a step backwards, the Attorney General of the United States, Albert R. Gonzales (who approved the August 2002 memorandum on torture – see above) stated during his confirmatory hearing before the Senate Judiciary Committee that “there is no legal prohibition under the Convention against Torture of cruel, inhuman or degrading treatment of aliens abroad.” In addition, it concluded that extreme techniques such as waterboarding, mock executions, the use of threatening dogs, masking, forced nudity, forced injection of psychotropic drugs and the threat of being sent to another country for torture “may be permitted in certain circumstances”. 44 Those who were not U.S. citizens still enjoyed constitutional rights while on U.S. soil, so it was important to find a place where detainees would have no legal rights. 31.
It is only by establishing “competent courts” within the meaning of Article 5 GC III that the United States can fulfil its obligations to safeguard this right. 7. In July 2004, following the Hamdi Supreme Court decision (see above), the government announced the establishment of Combatant Status Review Tribunals (CSRTs) to allow prisoners to challenge their designation as an “enemy combatant”, i.e. “a person who was part of or supported the Taliban forces or Al-Qaeda, or allied forces involved in hostilities against the United States or its coalition partners.” In addition, it was announced that all detainees would be subject to periodic review by “commissions” to determine whether it is necessary to continue their detention based on whether or not they continue to pose a threat to the security of the United States. The members of these bodies would be officers of the US armed forces and would therefore have no independence in reviewing previous decisions by the Department of Defense that the detainees were indeed “enemy combatants”. Detainees do not have the right to be represented or represented by a lawyer and do not have access to evidence or charges against them, except for a summary prepared by an official. Chambers do not apply international law, including IHL. Iii. The “Basic Principles on the Role of Lawyers” stipulate, inter alia, that governments must ensure that all detainees have prompt access to a lawyer and that adequate facilities, time and facilities are able to be accessed, communicated and counselled, without delay, surveillance or censorship and in complete confidentiality: consultations may be in sight, but not the hearing of the guards; Governments must ensure that lawyers can perform all their professional functions without hindrance or undue interference, and that they can travel and consult freely with their clients, including abroad. and competent authorities must ensure that lawyers have timely access to adequate information, records and documents in their possession or control in order to provide effective legal assistance.77 iii. Commissions exist solely on the basis of executive orders and instructions.82 The executive branch appoints its members, of whom only one (the president, who must be a judge advocate) must have legal training, but all must be officers of the U.S.
armed forces. Judicial requests, the decision of which could determine the outcome of the proceedings, must be referred to the executive, as must plea bargaining. 83 The Government clarified that only the “Commissions Act” drawn up by the Executive for the purposes of the commission procedure was applicable; Neither U.S. nor international law applies. The commissions therefore do not have a “competent, independent and impartial tribunal established by law”. 56. This is protected by Article 14 of the ICCPR, which provides that all persons are equal before the law and that, in criminal proceedings, everyone has the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, and that the accused are presumed innocent until proven guilty in accordance with the law.