June 10, 2008

V. International Standards

Binding human rights obligations require the United States to treat all persons in its custody "with humanity and with respect for the inherent dignity of the human person."  They also prohibit the United States from subjecting anyone in its custody to "cruel, inhuman, or degrading treatment."[104]

The US Supreme Court has ruled that prisoners at Guantanamo are also protected by the humane treatment requirements of Common Article 3 of the Geneva Conventions, which prohibit "cruel… humiliating and degrading treatment."[105]

In February 2006 five United Nations experts issued a report on Guantanamo, criticizing "prolonged detention in Maximum Security units" and warning that prolonged solitary confinement violates the rights of detainees under binding provisions of the International Covenant on Civil and Political Rights.[106]  The report also noted that the "treatment of detainees since their arrests, and the conditions of their confinement, have had profound effects on the mental health of many of them," and warned that the "severe mental health consequences" are likely to impose health burdens on the detainees and their families for years to come.[107]

Both the UN Committee against Torture and the UN Human Rights Committee have also criticized the United States for conditions in supermax prisons-prisons whose conditions are, as explained above, in many ways similar to the conditions in Guantanamo's high-security units.[108]  The Human Rights Committee urged the US government to reform these prisons in accordance with the UN minimum standards for the treatment of detainees.  These standards require, among other things, that cells have natural light and fresh air, and that prisoners be allowed regular communications with family and friends, and regular access to the news-none of which is provided to the prisoners held in Guantanamo's Camp 5 and Camp 6.[109]

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the expert body on conditions of confinement for the Council of Europe, has similarly warned that the "application of a solitary confinement-type regime… can have very harmful consequences for the person concerned.  Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible."[110]  The CPT has also highlighted the importance of providing prisoners access to natural light, regular educational and recreational opportunities, and regular contact-including phone calls-with family members.  None of this has been provided to the detainees in maximum-security units in Guantanamo.[111]

The American Correctional Association's Standards for Adult Correctional Institutions also requires natural light in each inmate's room or cell-something that is not available to detainees in Camps 5 and 6.[112]

[104] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16 at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 10; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the Untied States on October 21, 1994, art. 16.  This is true regardless of the validity of the US claim that the detainees are "enemy combatants" held as part of an armed conflict, since international human rights law continues to apply during armed conflict.  UN Commission on Human Rights, "Report on the situation of detainees at GuantanamoBay," E/CN.4.2006/120, February 15, 2006, paras. 7-13.

[105] Article 3 common to the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted August 12, 1949, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted August 12, 1949, 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War, adopted August 12, 1949, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950.  The US ratified the 1949 Geneva Conventions in 1955. Hamdanv. Rumsfeld, 548 U.S. 557 (2006).

[106] UN Commission on Human Rights, "Report on the situation of detainees at GuantanamoBay," para. 53.

[107] Ibid., para. 71.

[108] United Nations Committee against Torture, "Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, United States of America," CAT/C/USA/CO/2, July 25, 2006, para. 36 (stating concerns "about the extremely harsh regime imposed on detainees in 'supermaximum prisons'"); UN Human Rights Committee, "Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Comments of the Human Rights Committee, United States of America," CCPR/C/79/ADD 50, April 6, 1995, para. 20 (describing conditions in some supermax prisons as "incompatible" with the obligation to treat all detainees humanely).

[109] Article 1 of the Basic Principles for the Treatment of Prisoners (adopted by the UN in 1990) emphasizes that "[a]ll prisoners shall be treated with the respect due to their inherent dignity and value as human beings."  Basic Principles for the Treatment of Prisoners, adopted December 14, 1990, G.A. Res. 45/111, annex, 45 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc A/45/49 (1990), G.A. Res. 45/111, annex, 45 U.N. GAOR Supp. (No. 49A), p. 200, U.N. Doc A/45/49 (1990).  Similarly, Principle 1 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that "[a]ll persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person." Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted December 9, 1988, G.A.Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).  Although non-binding, these rules set out basic standards that all UN member states are expected to follow.  Indeed, the principle of humane treatment is reiterated in many treaties and is a norm of customary international law in both situations of peace and armed conflict.

[110] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, The CPT standards, CPT/Inf/E (2002) 1 - Rev. 2006, para. 56.

[111] Ibid., paras. 30, 47 and 51.  The CPT has also noted in other circumstances that the "indefinite nature of… detention with no effective means of challenging the concrete evidence" has been found to cause serious deterioration in mental health-something that is likely a contributing factor to the deteriorating mental health of Guantanamo detainees as well.  European Committee for the Prevention of Torture and Inhuman or Degrading Treatment, United Kingdom: Visit 2005 (November), CPT/Inf (2006) 28, para. 8 (describing the deterioration in the mental health of UK terrorism suspects held without charge).

[112] American Correctional Association, Standards for American Correctional Institutions, 4th ed. (Lanham, MD: American Correctional Association), 4-4147 – 4-4148.