USA e diritti dopo l'11/9 : relazione preliminare del relatore ONU
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Guantánamo Bay detainees The persons detained at the United States military facility at Guantánamo Bay have been categorized by the United States as alien unlawful enemy combatants. It must be made clear that this is a description of convenience only, without legal effect, since there is no such third category of persons under international law. Those that participate in hostilities are either "combatants", or "civilians" who have participated in hostilities and are thus subject to detention and prosecution. Although combatants who are apprehended during the course of an international armed conflict and detained as prisoners of war will be released at the end of hostilities, this will not be the case for persons who are held as persons suspected of war crimes. The international community has recognized the need to ensure that there is no impunity for those that commit war crimes. While acknowledging this principle, it should also be recognized that the chance of ensuring a fair trial diminishes over time. In the case of those who have been captured during armed hostilities in an international or non-international armed conflict, but in respect of which there is no allegation of offending against the laws of war, such individuals should be released, or tried by civilian courts for their suspected other crimes.

The Special Rapporteur considers that the detention of this group of persons for a period of several years without charge undermines the right of fair trial, and that the United States has thereby placed itself in a position of having to release many of these persons without charge. There are serious concerns about the ability of detainees at Guantánamo Bay to seek a judicial determination of their status, and of their continuing detention. Upon the arrival of a detainee at Guantánamo Bay, a Combatant Status Review Tribunal is convened to determine whether the detainee is an "unlawful enemy combatant" and whether that person should continue to be detained. This occurs once only, unless new evidence about the person's status becomes available. Added to this, an Administrative Review Board undertakes annual reviews of each detainee's status to confirm whether continued detention is required. As confirmed by the United States Department of Defense, these are administrative processes, rather than judicial ones. Detainees are not provided with a lawyer during the course of the Combatant Status Review Tribunal hearing.

Even more problematic is the fact that decisions of the Combatant Status Review Tribunal and Administrative Review Board are subject to limited judicial review only, meaning that any reference to ordinary courts is limited to the question of whether these bodies acted in accordance with applicable rules of procedure. The most that a reviewing court may do is to order reconsideration of a decision, not release. These restrictions result in non-compliance with the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary detention (Article 9 (1)), requires court review of any form of detention and entailing a possibility of release (Article 9 (4)), and provides a right to a fair trial within reasonable time for anyone held as a criminal suspect (Article 9 (3) and Article 14 (3)). Article 9 (4) is also relevant to the removal of habeas corpus rights under section 7 of the Military Commissions Act 2006, which purports to expressly deny the jurisdiction of ordinary courts to hear an application for habeas corpus.

Closure of Guantánamo Bay The Special Rapporteur is encouraged by the announcement of the President of the United States that he wishes to move towards the closure of Guantánamo Bay, and urges continued and determined action to that end. The Special Rapporteur has been advised that between 40 and 80 Guantánamo Bay detainees are expected to be tried by military commissions, and that the United States wishes to return the balance of detainees to their countries of origin or, where necessary, to a surrogate country, and that it is conducting negotiations with countries for this purpose. He supports initiatives to return detainees to their countries of origin, but also concludes that although the United States has advised that it will not do so in breach of the principle of non-refoulement, the current United States standard applied under this principle fails to comply with international law.

While international law (primarily ICCPR Article 7) requires that a person not be returned to a country where there is a risk of torture, or any form of cruel, inhuman or degrading treatment, the United States applies a lower threshold of non-return where it is "more likely than not" that a person will be subject to torture as narrowly defined by the United States itself. Despite the fact that the United States has not yet abolished the death penalty, the Special Rapporteur emphasizes that the principle of non-refoulement is also applicable where a person is liable to the imposition of the death penalty in a jurisdiction where the standards of trial fall short of rigorous compliance with Article 14 of the International Covenant on Civil and Political Rights on the right to a fair trial. The Special Rapporteur emphasizes that the United States has the primary responsibility to resettle any individuals among those detained in Guantánamo Bay who are in need of international protection. He further recommends that other States be willing to receive persons currently detained at Guantánamo Bay.

The United States and the UN High Commissioner for Refugees (UNHCR) should work together to establish a joint process by which detainees can be resettled in accordance with international law, including refugee law and the principle of non-refoulement. In particular, the Special Rapporteur urges the United States to invite UNHCR to conduct confidential individual interviews with the detainees in order to determine their qualification as refugees and to recommend to other countries their resettlement. He also urges the United States not to require from receiving countries the detention or monitoring of those returned in cases where such measures would not have basis in international and domestic law.

Detainees in Afghanistan and Iraq The Special Rapporteur is mindful of the fact that there are in Afghanistan some 700 and in Iraq around 18,000 persons detained by the United States. Some of these detainees appear to be held for reasons related to the fight against terrorism, under a legal status analogous to that at Guantánamo Bay. He reminds the United States and other States responsible for the detention of persons in Afghanistan and Iraq that these detainees also have a right to a fair trial within a reasonable time if suspected of a crime or, failing this, to release.

The use of military commissions to try terrorist suspects By Military Order in 2001, the President of the United States established military commissions for the purpose of trying enemy combatants. The US Supreme Court ruled in 2006, in Hamdan v Rumsfeld, that military commissions established under the Military Order were unconstitutional, since they were not established under the express authority of Congress, and that the structure and procedures of the commissions violated both the United States Uniform Code of Military Justice and the four Geneva Conventions. Congress subsequently enacted the Military Commissions Act 2006, which largely reflects the military commission structure under the 2001 Order. The establishment of military commissions is not restricted geographically, permitting any non-United States citizen, including those holding permanent resident status, to be subject to trial by military commission if designated as an enemy combatant. Various aspects relating to the jurisdiction and operation of military commissions raise significant human rights concerns, including the jurisdiction and composition of military commissions, the potential use of evidence obtained by coercion, and the potential for the imposition of the death penalty. One of the principal reasons given by the Government for the establishment of military commissions, rather than the use of courts martial or ordinary courts, has been that those courts do not have jurisdiction over certain crimes which some detainees are suspected to have committed.

Three matters of concern are raised by this position. First, the Military Commissions Act of 2006 purports to be a piece of legislation which codifies the laws of war and establishes the jurisdiction of military commissions over war crimes. However, the offences listed in section 950v(24)-(28) of the Act (terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy) go beyond offences under the laws of war. The establishment of these offences, and the way in which they are described, therefore means that the military commissions have been given jurisdiction over offences which do not in fact form part of the laws of war and thus may result in civilians being tried by military tribunals, in breach of the established interpretation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The second problem, concerning these same offences, is that to the extent they were not covered by the law applicable at the time of the commission of the actual acts, the military commissions will be applying criminal law retroactively, in breach of ICCPR Article 15 and universally acknowledged general principles of law. Finally, it appears that the Government's justification for military commissions is incorrect as a matter of fact because ordinary courts martial have had the jurisdiction to try violations of the laws of armed conflict since 1916 under the Uniform Code of Military Justice, and that the nexus between the events of 11 September and United States citizens would allow ordinary courts to try other offences such as conspiracy and terrorism. This is borne out by the fact that the 1998 Embassy bombings were prosecuted by ordinary courts, and that Osama bin Laden was indicted for his action in the attacks on the USS Cole by a Grand Jury in 2000. The ability of ordinary courts to hear charges of conspiracy and material support for terrorism is further borne out by the fact that those being prosecuted in United States v Padilla et al in the United States District Court at Miami are charged with such offences.

In contrast, a suspected co-conspirator, who is an alien and currently detained at Guantánamo Bay, is likely to face these charges before a military commission. As to the composition of military commissions, the Special Rapporteur has serious concerns about the independence and impartiality of the commissions, their potential use to try civilians, and the lack of appearance of impartiality. Whereas military judges in courts martial are appointed from a panel of judges by lottery, judges in a military commission are selected for each trial by the convening authority of military commissions. Although the current convening authority is a civilian and former judge, she is employed by the Department of Defense so that the appearance of impartial selection of military judges and members of individual commissions is undermined.

Furthermore, there is no prohibition against the selection of members of a commission who fall within the same chain of command so that more junior members of a military commission, despite any advice to the contrary, may be directly or indirectly influenced in their consideration of the facts. The ability of the convening authority to intervene in the conduct of trials before a military commission is also troubling. The plea agreement in the trial of David Hicks, for example, was negotiated between the convening authority and counsel for David Hicks, without any reference to the prosecuting trial counsel. The involvement of the executive in such matters is troubling. The Special Rapporteur is concerned that, although evidence which has been obtained by torture is inadmissible, evidence obtained by other forms of coercion may, by determination of the military judge, be admitted into evidence.

Two problems arise in this context. The first is that an accused may not become aware of the fact that evidence has been obtained by torture or coercion since the interrogation techniques used to obtain evidence subsequently presented at trial may themselves be classified and thereby outside the knowledge of the accused. The next problem is that the definition of torture for the purpose of proceedings before a military commission is restricted so that it does not catch all forms of coercion that amount to torture or cruel, inhuman or degrading treatment, equally prohibited in non-derogable terms by Article 7 of the International Covenant on Civil and Political Rights (ICCPR).

It is a clear and established principle of international law that no evidence obtained by torture or cruel, inhuman or degrading treatment may be used for the purpose of trying and punishing a person The Special Rapporteur is furthermore concerned with the ability of a military commission to determine charges in respect of which the death penalty may be imposed. It is well established that Article 6 of the ICCPR requires that, where a State seeks to impose the death penalty, it is obliged to ensure that fair trial rights under Article 14 of the ICCPR are rigorously guaranteed. Given that any appeal rights subsequent to conviction are limited to matters of law, coupled with the concerns outlined, at the lack of fair trial guarantees in proceedings before military commissions, the Special Rapporteur concludes that any imposition of the death penalty as a result of a conviction by a military commission is likely to be in violation of Article 6.

Finally, the Special Rapporteur notes with concern that the acquittal of a person by a military commission, or the completion of a term of imprisonment following conviction, does not result in a right of release. This further undermines the principles of fair trial and would, if immediate release was not provided in an individual case, involve an arbitrary detention in contravention of Article 9 (1) of the International Covenant on Civil and Political Rights.

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