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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 Guantánamo Bay, 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.