Letter to Foreign Ministers

Human Rights Watch commends the collective call by the European Union to close the Guantanamo Bay detention center that was made at the E.U.-U.S. summit last month.

The closing of Guantanamo would be a positive and welcome development. But the closing of Guantanamo will not be easy, and it will not – on its own – restore the United States’ standing with regard to respect for basic human rights and rule of law. A real step forward requires a shift of policy on a number of additional fronts.

In this regard, we urge the E.U. to work with the U.S. to help find solutions for those detainees in Guantanamo Bay who cannot be returned to their home country because they face a real risk of torture, and to insist that the U.S. applies fair trial standards to those detainees it plans to charge and prosecute. The E.U. should also look beyond Guantanamo Bay and raise issues regarding the U.S. treatment of detainees held in other locations and facilities under its control around the world. The E.U. should insist that the U.S. grant immediate access by the International Committee of the Red Cross (ICRC) to the more than two dozen detainees who are being held in secret locations and that the U.S. implement all of the recent recommendations from the U.N. Committee Against Torture to the U.S. Failure to hold the U.S. accountable for the full array of practices that violate its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) would undermine E.U. efforts to combat torture elsewhere in the world.

Closure of Guantanamo Bay Detention Centre

The continued detention of approximately 440 individuals in Guantanamo Bay, in defiance of international human rights standards, has become an embarrassment for the United States and its allies. Your call for its closure is a welcome and needed development.

However, the process of closing down Guantanamo is complicated.

President Bush has stated that, in the wake of the United States Supreme Court’s judgement in Hamdan (Hamdan v Rumsfeld, decided June 29, 2006), an increased number of the detainees will soon be either brought to trial or returned to their home countries. However the administration has continued to advocate a system of justice akin to the military commissions which the Supreme Court found unlawful and failed to meet the requirements of Common Article 3 of the Geneva Conventions. The administration is now asking Congress to draft the appropriate laws to allow it to do so.

We urge the E.U. to insist that those Guantanamo detainees brought to trial receive a fair trial, in accordance with internationally recognised standards. We hope that you will press President Bush to try the detainees in civilian courts or military courts that adhere as closely as possible to courts-martial rules – rules that are time-honored and based on established precedent. Trying suspects in a transparent, fair process that showcases to the world respect for rule of law and due process – these are the very values the E.U. and the U.S. are insisting should be protected in their fight against terrorism.

Many of the detainees who will not face prosecution cannot simply be transferred to their home countries. In some cases, their home countries will not allow them to return; in others, they would be subject to torture or persecution if they were forcibly returned.

For example, there are eleven Chinese Uighurs who have been cleared for release, yet continue to be detained in Guantanamo because there is nowhere for them to go. These are individuals whom the U.S. has concluded would pose no risk to U.S. or its allies if released. The U.S. has also concluded – and rightly so – that it cannot return these individuals to China because of a real risk that they will suffer torture and abuse. They continue to be imprisoned in Guantanamo some four years after they were first arrested and detained. As the United States begins a process of closing down Guantanamo, many others will inevitably fall into this category: cleared for release but nowhere to go.

The European Union could take an important step forward towards closing Guantanamo by helping to resettle these men. Reluctance to provide support in this way would, of course, be understandable. The U.S. created the situation and the U.S. should provide the remedy. But its actions have made the resettlement of such innocent detainees in the United States impractical. The Bush administration has insisted for four years that all held at Guantanamo are dangerous terrorists, and undoubtedly fears that allowing any former detainee to live in the United States, however justified, would cause a huge domestic backlash. The four years of such rhetoric have also created a real possibility that any detainee released to the United States will be subjected to constant suspicion and potential harassment.

Were you to resettle some of the detainees within the E.U., your governments would be able to say that they did more than just speak out about Guantanamo – they took a humane and practical step to help right an terrible wrong. Such a decision would undoubtedly attract the support and gratitude of the human rights community. It would also be deeply welcomed by the U.S. government, which would see it as a sign that America's allies are willing to work constructively with it to help solve the problem of Guantanamo. It is a rare opportunity to do something that will be welcomed by all sides in the difficult debate over the treatment of detainees in the current conflict.

The ongoing dialogue with the U.S. about Guantanamo also gives the E.U. an important opportunity to push the U.S. to develop a fair and effective system of ascertaining a detainees’ risk of torture and abuse upon return to their home country. The U.S. should develop processes by which detainees can raise a credible fear or torture and persecution prior to transfer. There should be a way for an authoritative, independent entity or alternatively, U.S. officers, to effectively monitor the treatment of detainees when they are returned and ensure their humane treatment upon return.

Beyond Guantanamo

There is also a need to look beyond Guantanamo. As recent as May 2006, the U. N. Committee Against Torture issued an extremely critical report on the compliance of the U.S. with its obligations under CAT. It emphasized important concerns about U.S. practices in relation to the detention of persons at secret facilities, potential involvement in enforced disappearances, the lack of accountability for torture and abuse, and rendition to torture. The governments of the European Union have historically played an important role in stressing the importance of full compliance with CAT with nation-states around the world; the United States should be treated no differently. Of particular concern are the following issues, all raised by the committee:

• Disappeared Detainees: John Negroponte, Director of National Intelligence, recently acknowledged that the Central Intelligence Agency continues to hold approximately three dozen al-Qaeda suspects in secret overseas prisons. These detainees are denied access to the International Committee of the Red Cross and subjected to treatment and interrogation that is not monitored by any court or independent entity. The illegal and incommunicado detention of these detainees comes with a cost. Any evidence elicited from such detainees during their incommunicado detention will undoubtedly be the subject of multiple court challenges as to its legality. This will make it very difficult, if not impossible, to bring the suspects and those they have implicated to trial. In May, the Committee Against Torture urged the U.S. to ensure that no one was detained at any secret prisons, officially register all detainees within its custody and control irrespective of the territory where they are held, and end any involvement in enforced disappearances. The committee made clear that “detaining persons in such conditions constitutes, per se, a violation of the Convention.” The European Union should echo the recommendations of the committee.

• Accountability for Abuse: As President Bush has repeatedly stated, the horrific treatment of prisoners in Abu Ghraib was a “disgusting” event that brought shame to the United States and its allies. Yet, as illustrated through research by our Detainee Abuse and Accountability Project ¹, prosecutions have been sparse and sentences light. Fewer than fifteen percent of the more than 600 U.S. personnel implicated in detainee abuse cases are known to have been court-martialed. Of those, fewer than twenty were sentenced to a year or more in prison, even though there are at least 45 known cases of confirmed or suspected homicide. The U.S. needs to take steps to ensure that all those responsible are punished in accordance with the gravity of the crimes and to demonstrate to the world that it does not – and will not - tolerate torture and abuse.

• Rendition to Torture: In the May hearings before the Committee Against Torture, the U.S. insisted that the Convention’s obligation of non-refoulement, that is not to send a detainee to a country where they will be at risk of being subject to torture, does not apply extra-territorially. In other words, the U.S. advocates a two-tiered system, under which the legal prohibition on rendering an individual to torture does not apply if that individual is initially arrested or detained outside the territory of the United States. Although the U.S. asserts a general policy not to send individuals to countries where they are at risk of subject to torture, a policy which can always be changed and modified and a binding legal obligation carry very different weight. The Committee rejected the U.S.’s position and urged it to recognize and apply its treaty obligations to ensure protection from torture is enjoyed by all persons under the effective control of its authorities, of whichever type, wherever located in the world. Acceptance of the United States’ position would create a dangerous loophole in the prohibition against rendering individuals to torture – and one that the EU should be concerned about and back the committee in challenging.

• Applicability of CAT during an armed conflict: The U.S. has also argued that CAT does not apply to the treatment of detainees captured during an ongoing armed conflict; that it is engaged in armed conflict with al Qaeda; and that therefore CAT does not apply to U.S. detention operations in Guantanamo, Afghanistan and Iraq. If accepted, this analysis would significantly undercut the universal ban on torture. As the CAT committee emphasized, the Convention is meant to apply at all times, whether in peace, war or armed conflict, and the EU should actively oppose the U.S.’s attempt to limit the scope of the Convention.

Geneva Conventions

Finally, we are also concerned at recent suggestions by the Bush administration and U.S. Congress that it wishes to “rein in” the scope of Common Article 3 of the Geneva Conventions to allow for coercive interrogations. One proposal is to effectively make a “reservation” to Common Article 3 by statutorily limiting the definition of the terms in Common Article 3. This would be the first time any country in the world has ever sought to make a reservation to the Geneva Conventions. Leaving aside the issue of whether, given the status of Common Article 3 in customary international law, this would even be possible, such an attempt would set a dangerous precedent, fundamentally damaging core international rules that protect us all. We hope the E.U. will address this issue and taken an unambiguous position that it would be unacceptable for the U.S. to undermine the Conventions by seeking to make an unprecedented reservation to these fundamental Conventions.

In sum, President Bush’s recent statements that, he too, wishes to close Guantanamo Bay create a unique opportunity to pursue the hard issues that the closing of Guantanamo raises. If the E.U. were to combine dialogue on these issues with specific measures such as the resettlement of some of the detainees cleared for release who cannot be repatriated to their home countries - the E.U. would be taking a particularly significant and valuable step towards making the goal of closing Guantanamo a reality. We also urge that the calls to close Guantanamo do not exclude engagement on the many other important issues of human rights and respect for the basic rule of law that will not be solved by the closure of Guantanamo alone.

We thank you for your urgent attention to these important matters. We would be extremely grateful if during the summit, these issues were tabled for discussion and action. We remain, as always, ready to work with you in any way we can to make your efforts a success.

Yours faithfully,

Lotte Leicht
EU Director

Tom Malinowski
Washington Director

CC: Ambassadors to the Political and Security Committee
Political DIrectors