February 7, 2008

VIII. Violation of the Right to Non-Discrimination in the Enjoyment of Effective Protection against Arbitrary and Indefinite Detention and to Fair Trial Procedures: Article 6

Convention Standards and Concerns

Human Rights Watch believes that the failure to ensure the fair criminal trial of non-citizens designated as "enemy combatants" and the withdrawal of jurisdiction from the federal courts to review their detention constitutes a violation of US obligations under ICERD. Article 6 of ICERD establishes that all states parties must:

[A]ssure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention.[110]

The US policy of detaining non-citizens categorized as "enemy combatants" without providing adequate judicial review constitutes a violation of the fundamental human right to be free from arbitrary and indefinite detention. The right to be free from arbitrary and indefinite detention is a political right embraced under Article 5 of ICERD. It is also a right well established in international humanitarian and human rights law.[111] The right to fair trial procedures is also well established in these same bodies of law.[112]

In General Recommendation 30, the Committee states that the United States should "[e]nsure that non-citizens enjoy equal protection and recognition before the law."[113] It also states that the United States should "ensure the security of non-citizens, in particular with regard to arbitrary detention" as well as "[e]nsure that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law."[114]  Furthermore, in General Recommendation 31 the Committee recommends that the United States should guarantee all persons the fundamental rights "enshrined in the relevant international human rights instruments" including the "right not to be arbitrarily arrested or detained."[115]

Certain policies pursued by the executive and legislative branches of the United States have explicitly denied non-citizens the same right as citizens to judicial review of the decision to detain them, and to fair trial procedures, in violation of ICERD and the various recommendations of the Committee cited above. The differential treatment of non-citizens held as "enemy combatants" can be summed up in the following manner: only non-citizens held as "enemy combatants" have been detained by the executive branch of the United States at Guantánamo Bay, Cuba; only non-citizens have been stripped of their right to habeas corpus under US law; and only non-citizens are subject to the unfair, fundamentally flawed system of trial by military commission in order to ascertain criminal responsibility in their cases.

Illustration: Non-Citizens Denied the Right to Adequate Judicial Review of Detention Decisions and to Fair Trial Procedures

At the present time, there are approximately 275 non-citizen "enemy combatant" detainees incarcerated at Guantánamo.[116]Of these detainees, not one has been released based on an order issued by a federal judge or prosecuted as a citizen would be using federal criminal procedures (or by a court martial as a prisoner-of-war under the Geneva Conventions). They have been stripped of the right to bring habeas corpus petitions and are subject to unfair criminal proceedings under the Military Commissions Act of 2006.

Guantánamo is populated exclusively by non-citizens deemed to be "enemy combatants," all of whom are denied the right to habeas corpus and to fair trial procedures. The treatment of Yaser Esam Hamdi, who was captured in Afghanistan in 2001, illustrates the administration's decision to hold only non-citizens at Guantánamo.[117] Hamdi was designated an enemy combatant by President Bush and detained in Guantánamo in 2002. When it became known that he was a US citizen, Hamdi was transferred to US military prisons in Virginia and South Carolina. (On September 23, 2004, the United States released Hamdi to Saudi Arabia on the condition that he relinquish his United States citizenship.)[118]

The 275 non-citizens who continue to be detained as "enemy combatants" at Guantánamo have thus far been subjected to particular discrimination based on the fact that they are not citizens. In 2005, President Bush signed the Detainee Treatment Act of 2005 (DTA) into law.[119] The DTA prohibits non-citizens detained in Guantánamo from bringing future habeas claims. It states that "no court, justice, or judge shall have jurisdiction to hear or consider-(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."[120]

These discriminatory habeas-stripping provisions were then expanded and made retroactive under the Military Commissions Act (MCA), enacted into law in October 2006. The MCA states that "[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."[121] This removes the ability of non-citizens designated as enemy combatants, or awaiting such determination, to challenge their detention by petition for habeas corpus, or any other procedures that would provide for full and fair judicial review of the lawfulness of the detention. Courts have since relied on these provisions to dismiss non-citizen habeas petitions from the federal courts.

The administration is now relying on these restrictions to deny Ali Saleh al-Marri, a non-citizen in the United States, access to the courts to bring a habeas challenge to his detention. Al-Marri is a Qatari citizen who was on the eve of trial in civilian court for credit card fraud when the US government declared him an "enemy combatant" in 2003. He has been held in a military brig without charge and without any sort of meaningful review of the basis of his detention ever since. The US government claims that under the Military Commissions Act, federal courts lack jurisdiction over those the president labels "enemy combatants"-regardless of where they were arrested or detained.

The constitutionality of the habeas-stripping provisions of the Military Commissions Act is now being considered by the Supreme Court, which heard arguments in the case, Boumediene v. Bush, in December 2007.[122] A decision is expected by mid-2008. 

Whether or not the courts ultimately rule that the US Constitution protects detainees at GuantánamoBay, international law prohibits indefinite detention without effective review. The detainees at Guantánamo apprehended during armed conflict have not been provided review of their cases in accordance with the Geneva Conventions.[123]  Nor have they been provided review by a judicial authority in accordance with international human rights law.[124] Thus all Guantánamo detainees should be entitled to a court review of the legality of their detention under the writ of habeas corpus.  But this has not occurred.

The Military Commissions Act also creates an entirely new criminal justice system solely for non-citizens. The MCA outlines a new system of military commissions designed exclusively to try those non-citizens labeled "alien unlawful enemy combatants."[125]

While the US government argues that the military commissions provide sufficient procedural protections to guarantee a fair trial to detainees, the commissions do not meet international fair trial standards in a number of respects, including that the commissions are allowed to rely on evidence obtained through abusive interrogations.[126]

By choosing to detain non-citizen "enemy combatants" without adequate judicial review and to try them using procedures that are flawed and unfair, the United States has not lived up to its obligations under ICERD. The US government has made a clear statement that the right of habeas corpus applies to citizens and does not apply to similarly-situated non-citizens. Furthermore, the government has violated international law by subjecting non-citizen "enemy combatants" to military commission trials that fall far short of fair trial procedures required under international law.

Recommendations to the Committee

  • Require the United States to respect the rights to freedom from indefinite and arbitrary detention of any non-citizen subject to the jurisdiction or effective control of the United States (whether inside or outside its territory).
  • Urge the United States Congress to repeal the sections of the Detainee Treatment Act and Military Commissions Act that strip non-citizen detainees of the right to habeas corpus and that set up a separate system of criminal justice for non-citizens only.
  • Urge the United States to ensure that non-citizens are entitled to challenge the lawfulness of their detention on the same basis as US citizens. 

[110] ICERD, Article 6.

[111] 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, ratified by the United States on August 2, 1955; 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, ratified by the United States on August 2, 1955; 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, ratified by the United States on August 2, 1955; 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, ratified by the United States on August 2, 1955; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, signed by the United States on December 12, 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978, signed by the United States on December 12, 1977; ICCPR, Article 9, para. 4; 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 United States on November 20, 1994, Article 13, Article 14, para. 1.

[112] The ICCPR establishes a series of fair trial procedures in Articles 9, 10, and 14. In addition, the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 6 U.S.T. 3316, Article 3 prohibits "the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

[113] Committee on the Elimination of Racial Discrimination, General Recommendation 30, Article 5.18.

[114] Committee on the Elimination of Racial Discrimination, General Recommendation 30, Article 5.19-20.

[115] Committee on the Elimination of Racial Discrimination, General Recommendation 31, para. 23.

[116] "Detainee Transfer Announced," Department of Defense press release, December 28, 2007, http://www.defenselink.mil/releases/release.aspx?releaseid=11591 (accessed February 1, 2008).

[117]Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004).

[118] "Transfer of Detainee Control Completed," Department of Defense press release, October 11, 2004, http://www.defenselink.mil/releases/release.aspx?releaseid=7827 (accessed February 1, 2008). 

[119] Detainee Treatment Act of 2005, Pubic Law No. 109-148, 119 Stat. 2739 (2005).

[120] Detainee Treatment Act of 2005, Section 1005(e). The other parts of Section 1005 set a deadline for the Secretary of Defense to submit a report explaining the procedures of Combatant Status Review Tribunals and the Administrative Review Boards. These reviews are held to determine the status of the detainees and the need to continue to detain them. They do not allow the detainees to challenge the legality of their detention.

[121] Military Commissions Act of 2006, 10 U.S.C. 948a, Section 7(a).

[122]Boumediene v. Bush, Supreme Court Docket No. 06-1195 (petition granted June 29, 2007).

[123] The Third Geneva Convention states that if there is "any doubt" whether a prisoner qualifies as a prisoner of war they "shall enjoy the protection of the [Geneva] Convention until such time as their status has been determined by a competent tribunal." Third Geneva Convention, Article 5. The Fourth Geneva Convention states that persons detained for imperative reasons of security shall have the right to appeal "with the least possible delay" and to semi-annual review. Fourth Geneva Convention, Article 78.

[124] ICCPR, Article 9, provides that  "[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release." 

[125] Military Commissions Act of 2006, Section 1, subchapter I.

[126] See Human Rights Watch, Fair Trial Standards: The Essential Components of a Fair Justice System, August 23, 2006, http://hrw.org/english/docs/2006/08/23/usdom14067.htm#fntref1.