UNITED STATES OF AMERICA;
Summary of concerns for consideration by the Human Rights Committee in relation to
US counter-terrorism measures since 11 September 2001
In Advance of the 85th session of the Human Rights Committee, Amnesty International
submits the following briefing outlining the organization‟s principal concerns regarding the
counter-terrorism measures taken by the USA following the attacks of 11 September 2001 as
they relate to the state party‟s obligations under the International Covenant on Civil and Political Rights (ICCPR).
This document focuses mainly on measures taken in the context of US security operations
abroad, including the treatment of detainees in US custody in Afghanistan, Iraq, Guantánamo
Bay in Cuba, and other locations, although it cites some additional concerns relating to
domestic law or practice. The organization‟s concerns highlighted in this briefing relate to,
among other things, prolonged detention without trial or access to the courts in circumstances
amounting to arbitrary detention; incommunicado detentions and “disappearances”; the
authorization of interrogation techniques prohibited under international law as “cruel,
inhuman or degrading” treatment; cruel conditions of confinement; a pattern of torture and ill-
treatment; deaths in custody and unlawful killings; proceedings which do not meet standards
for fair trials; and discriminatory treatment.
Additional background information and more details on the organization‟s concerns can be
found in the various Amnesty International documents referred to in the following sections.
I. CONCERNS RELATED TO SECURITY OPERATIONS ABROAD AND
“ENEMY COMBATANTS” IN THE USA
Right to judicial review and protection from arbitrary detention – Article 9
Since 11 September 2001, tens of thousands of people have been detained in US facilities in
Afghanistan, Iraq, Guantánamo Bay in Cuba, and other undisclosed locations, many held for
prolonged periods incommunicado and without access to families, lawyers or the courts.
Amnesty International considers such detentions violate the ICCPR .
The provision for judicial review of detentions under Articles 9(3) and 9(4), is an important
safeguard against arbitrary detention and one which the Human Rights Committee and other 1expert bodies have stated is non-derogable, even in states of emergency. The ICCPR applies
to all persons subject to the jurisdiction of a state party, including non-nationals held in places
1 Human Rights Committee General Comment 29, States of Emergency (Article 4),
CCPR/C/21/Rev,1/Add 11, 31 August 2001
2outside the territory of a state party or under its control. Amnesty International wishes to
draw the Committee‟s attention to the following current concerns:
More than 500 non-US nationals from some 35 countries remain detained without charge or
trial in the US Naval Base at Guantánamo Bay, Cuba, many held for more than three years
with virtually no access to the outside world.
Some of the Guantánamo detainees now have lawyers through which they are pursuing
habeas corpus appeals in the US courts, following the Supreme Court decision in Rasul v.
Bush in June 2004 that the US federal courts “have jurisdiction to consider challenges to the 3legality of the detentions”. However, the US courts have thus far given contradictory
opinions on the extent to which the detainees are entitled to judicial review, and the issue has
not yet been decided. Meanwhile, the US government continues to argue that “enemy
combatants” are not entitled to meaningful judicial review. It has tried to circumvent the
Rasul ruling by setting up its own review procedures. However, neither the Combatant Status
Review Tribunal (CSRT), an administrative body set up in 2004 to review the status of each
detainee, nor the annual review by an Administrative Review Board (ARB), established in
September 2004, satisfy the requirements for a judicial review of the legality of the
detentions under Article 9(3) and 9(4) of the Covenant (see pages 47-63 of Guantánamo and
Beyond (AI Index AMR 51/063/2005).
Under international law, when the international armed conflict in Afghanistan ended in June
2002 all those detained in connection with that conflict were required to be released, unless 4charged with criminal offences. Those transferred to Guantánamo after being detained in countries outside the zone of armed conflict should always have been treated as criminal
suspects and subject to the relevant detention and fair trial provisions under the ICCPR and
other international human rights standards. Those transferred to Guantánamo after being
detained in the context of the internal armed conflict in Afghanistan should at a minimum 5have had their detentions promptly reviewed. The US government has consistently failed to provide the detainees with any of these protections.
In view of the above, Amnesty International believes that all those currently held in
Guantánamo are arbitrarily and unlawfully detained.
Detainees in Afghanistan, Iraq and unknown locations There is urgent concern regarding the situation of detainees in other locations where US
detentions have been subject to even less outside scrutiny than Guantánamo.
While Guantánamo detainees now have some limited access to review by the US courts and
to legal counsel, detainees in Afghanistan have no such access at all. As of late April 2005,
hundreds of detainees remained in US custody in Afghanistan, with some in Bagram US Air
Base having been detained without charge or trial and virtually incommunicado for more than 6a year. Some of the worst abuses of detainees (including torture and deaths in custody) in
2 Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant, 21 April 2004,
para. 10. 3 Rasul v Bush, 000 U.S. 03-334 (2004) 4 Geneva Convention III, Part III, Part IV, Section II; Geneva Convention IV, Art. 133. The
international armed conflict in Afghanistan is deemed to have ended with the conclusion of the
Emergency Loya Jirga and the establishment of a Transitional Authority on 19 June 2002. 5 See page 12 of Guantánamo and Beyond for a summary of the legal framework applying under the relevant Geneva Conventions and human rights law. 6 ICRC Operational Update April 2005. It reported that around 450 detainees were being held at
Bagram and at least 70 at Kandahar
2002/3 are reported to have occurred in a section of the Bagram facility to which the ICRC
had no access. Although the ICRC has since had access to detainees at Bagram and Kandahar
US bases, this has not been immediately after arrest. The ICRC still has no access to detainees
held in an unknown number of US Forward Operating Bases. Some detainees are believed to
remain for up to two months at such facilities.
Thousands of detainees are reported to remain in US custody in Iraq, many held for prolonged
periods incommunicado with no access, or delays in access to families, lawyers or the courts.
On 27 June 2004, the Coalition Provisional Authority (CPA) issued a memorandum
(Memorandum No. 3) setting out the process of arrest and detention of criminal suspects as
well as procedures regarding “security internees” detained by members of the Multi-National 7Force (MNF) after 28 June when the interim Iraq government replaced the CPA.
The procedures regarding “security internees” as established under the memorandum fail to
meet international standards for prompt judicial review of the lawfulness of detentions as
provided by Article 9. The memorandum stipulates regular reviews of the decision to intern a
person at intervals of at least every six months. Such review is conducted by a non-judicial
body composed of members of the MNF and Iraqi authorities, reportedly without the internee
or his or her legal representative being present.
According to the CPA Memorandum No. 3, “security internees” “placed in internment after
30 June 2004 … must be either released from internment or transferred to Iraqi criminal
jurisdiction not later than 18 months from the date of induction into an MNF internment 8facility”. However, the memorandum goes on to state that for “continued imperative reasons 9of security” a “security detainee” may be held for longer than 18 months, that is, indefinitely.
As noted, the above procedures apply to detainees taken into custody after 28 June 2004.
However, an unknown number of security detainees detained before June 2004 remain in US
custody in Iraq and it is unclear what procedures apply in these cases.
An unknown number of “high-value detainees,” perhaps several dozen, are allegedly still being held in CIA custody in secret locations outside the USA. There have been reports that
secret US facilities are located in a number of countries which could include Jordan, Diego
Garcia, Pakistan, Egypt, Thailand and Afghanistan. Not even the ICRC has access to such
detainees whose fate and whereabouts remain unknown, leaving them outside the protection 10of the law in what therefore constitute “disappearances”. In June 2005, Amnesty
International interviewed two Yemeni detainees who separately described having been held
incommunicado for more than 18 months in US custody in two unknown locations (one 11underground) before being transferred to Guantánamo Bay.
In its recent report to the UN Commission on Human Rights, the UN Working Group on
Enforced or Involuntary Disappearances stated that it was “deeply concerned” by the reports
of the USA‟s use of secret detentions. It reminded the US government that secret detention
facilities are “typically associated” with the phenomenon of “disappearance”. In a case
concerning a person “disappeared” in circumstances not unlike those in US undisclosed
7 CPA Memorandum No 3 (revised): Criminal Procedures, 27 June 2004 8 Ibid, para 5. 9 Ibid, para 6. 10 See pages 108-114 of Human Dignity Denied (AI Index AMR 51/145/2004),and pp 118-120 of Guantánamo and Beyond AI Index AMR 51/063/2005, 11 USA/Jordan/Yemen: Torture and secret detention: Testimony of the ‘disappeared’ in the ‘war on
terror’ (AI Index AMR 51/108/2005),
locations, the Human Rights Committee has determined that the “disappearance” (“prolonged 12incommunicado detention in an unknown location”) amounted to torture.
Enemy combatants in the USA
Two individuals, José Padilla, (a US citizen) and Ali Saleh Kahlah al-Marri (a Qatari national)
remain detained as “enemy combatants” without charge or trial in military custody in
Charleston, South Carolina. Both were detained in the USA and transferred from the
jurisdiction of the Justice Department to military custody on the basis of executive orders
signed by President Bush. Both were denied access to attorneys for substantial periods
following their transfer to military custody (nearly two years in Padilla‟s case and more than a
year in the case of al-Marri). While they have been visited by the ICRC, they remain without
visits from their families.
Both men have habeas corpus petitions pending in the US courts. Although the US Supreme 13Court ruled in 2004 that a similar detainee, Yaser Hamdi, was entitled to judicial review, the
government continues to maintain its authority to detain individuals, including US citizens, as
“enemy combatants” under the President‟s wartime powers. On 9 September 2005, a federal
appeals court ruled that the President had such authority to detain José Padilla without charge 14or trial. The ruling reversed an earlier decision by a US district court that his detention was
unlawful. An appeal against this decision is pending.
Torture and cruel, inhuman or degrading treatment – Articles 7, 10
As Amnesty International has documented in various reports, there has been a pattern of
torture and other ill-treatment of detainees held in US custody in Afghanistan, Iraq,
Guantanánamo and other locations, both pre-dating and post-dating the torture and other ill-
treatment in Abu Ghraib. Evidence continues to emerge and derives from a wide range of
sources, including official investigations; information from agents who witnessed
interrogations; human rights bodies; victim testimony and documents obtained pursuant to
Freedom of Information Act requests by organizations such as the American Civil Liberties
Union. Reported methods of torture and other ill-treatment include prolonged incommunicado
detention; “disappearances”; beatings; death threats; threats of torture; electric shocks; forcing shackled detainees into painful stress positions; sexual humiliation; threats of rape; forced
nudity; exposure to extreme heat or cold; denial of food or water; immersion in water; use of
dogs to inspire fear; racial and religious insults; sensory deprivation techniques such as
hooding and blindfolding; sleep deprivation; exposure to loud music and prolonged isolation.
These methods are often used in combination and over long periods of time.
In its second periodic report to the Committee against Torture, the USA asserts its
unequivocal opposition to the use or practice of torture under any circumstances, including
war or public emergency. While this assertion is welcome, Amnesty International remains
concerned that the US has taken measures which undermine this commitment in practice, and
has authorized interrogation techniques which, even if they did not amount to torture, have
constituted cruel, inhuman and degrading treatment equally prohibited under international law.
In Section 1.2.of the Amnesty International report Human Dignity Denied (AI Index
51/145/2004, pages 57-73) Amnesty International describes in detail the interrogation
techniques authorized for use by US forces at various times in Afghanistan and Guantánamo,
12 El-Megreisi v Libyan Arab Jamahiriya, Communication No. 440/1990, UN Doc. CCPR/C/50/D/440/1990 (1994) 13 Hamdi v. Rumsfeld, No. 03-6696, decision of 28 June 2004. Hamdi was eventually released to Saudi
Arabia while court proceedings were still pending 14th Padilla v. Hanft, No. 05-6396, US Court of Appeal for the 4 Circuit, Opinion, 9 September 2005.
and later exported to Iraq. They include many of the interrogation techniques recommended in
the April 2003 final report of the Pentagon‟s Working Group on Detainee Interrogations in
the Global War on Terrorism (a document that has never been rescinded), some of which
went beyond standard US army interrogation doctrine. They include: hooding; stress positions;
“mild physical contact”; forced grooming; dietary manipulation; environmental manipulation
(e.g. adjusting temperature); removal of clothing; sleep deprivation; prolonged standing;
isolation (for longer than 30 days); threat to transfer to a third country (where the subject is
likely to fear he would be tortured); increasing anxiety by use of aversions (e.g. presence of
Many of the interrogation techniques listed above, even if applied in isolation or for limited
periods, would in Amnesty International‟s view violate Article 7 of the Covenant. Such
techniques have reportedly been used against “war on terror” detainees in combination and for prolonged periods, causing severe pain and suffering (physical, mental or both) and 15thereby amounting to torture. They can also open the door to further abuse. Forced nudity,
for example, while humiliating in itself, was reportedly a prelude to sexual abuse of some 16detainees in Abu Ghraib. Some of the approved techniques, such as forced shaving of facial
and head hair, stripping and the use of dogs to inspire fear, appear to have had a specific
discriminatory or racist application in the case of Muslim detainees.
At least 27 detainees who died in US custody have had their deaths listed by the army as
confirmed or suspected criminal homicides, in some cases after substantial evidence of torture. 17In some cases authorized techniques appear to have played a role in the ill-treatment.
According to reports, a revised version of the 1992 military interrogation field manual (FM-
34-52), which was in final draft form in June 2004 and is still under review, will expressly
prohibit the use of dogs in interrogation and other practices such as stress positions, stripping
and sleep deprivation. However, it will reportedly include methods which amount to cruel,
inhuman or degrading treatment even when applied strictly, notably treatment described as 18“fear up harsh” whose application in the past has led to torture and even death. In addition,
the new field manual would only govern interrogations by Department of Defense personnel
and not, for example, the CIA (although it would reportedly prohibit other agencies such as
the CIA from holding unregistered detainees in Department of Defense facilities).
The organization is also concerned that the US government practices “renditions” (secret
transfers) of detainees to third countries with a record of torture and other ill-treatment, in
grave disregard for its obligations under Article 7 of the Covenant. Some detainees have
15 For example, detainees in Bagram airbase, Afghanistan, were forced to remain standing for days,
naked and hooded, chained to a ceiling; Guantánamo detainees have described being subjected to
prolonged sleep deprivation, exposure for days or hours to extreme temperatures, painful “short-
shackling” during interrogations (in which they had to squat with their hands and feet chained to the
floor during interrogation) and prolonged isolation in harsh conditions as punishment for not providing
information during interrogations; in occupied Iraq, the ICRC expressed concern about the USA‟s
systematic resort to keeping detainees “completely naked in totally empty concrete cells and in total darkness” for days. 16 See pages 36-40 of Human Dignity Denied (AI Index AMR 51/145/2004) 17 Deaths in custody in Afghanistan and Iraq are described on pages 146-15 of Human Dignity Denied and pages 109-116 and in Appendix 1 of Guantánamo and Beyond. They include the death of a man called Dilawar in Bagram, Afghanistan, in December 2002, beaten over days and kept hooded and
chained to a ceiling; and Hamad Mawhoush, who died in Iraq in November 2003 after being beaten,
then tightly wrapped in a sleeping bag, the latter part of approved “fear-up” tactics found in military operations; he died of asphyxia. 18 See reference to Mawhoush case, note 19, ibid.
reportedly been sent by the USA, or with US collusion, to countries where they have been 19tortured before being transferred to US custody. In doing so, the USA has sometimes relied on “diplomatic assurances” from receiving states promising that the persons in question
would not be ill-treated by them.
Amnesty International considers that before a person is involuntarily sent to a particular
country, they should have access to a competent, independent and impartial court, which
should make the final decision, in a fair proceeding, about the presence or absence of such a
risk. In the face of allegations that a person will be at risk of torture or other ill-treatment in
the country to which they will be sent, the burden of proof should be on the sending
authorities to show that they would not be at risk.
The court should require the sending authorities to present reliable and credible evidence as to
the absence of a risk. Amnesty International considers „diplomatic assurances‟ to be
unacceptable as evidence to that effect, being both evasive of and erosive of the absolute
prohibition, including in Article 7 of the Covenant, of torture and ill-treatment in general and
on refoulement in particular, in addition to being inherently unreliable, morally questionable
and in practice ineffective.
Conditions of detention amounting to torture or cruel, inhuman or degrading treatment
The UN Commission on Human Rights has stated that “prolonged incommunicado detention
may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman 20or degrading treatment or even torture”. The Human Rights Committee has stated that
provisions should be made against the use of incommunicado detention, and the Committee 21against Torture has called for its elimination. “Disappearances” can also amount to torture (see above). Other conditions under “which war on terror” detainees may also constitute cruel, inhuman or degrading treatment.
For example, most Guantánamo detainees have spent much of their detention confined to
small, solitary cells with minimal opportunities for exercise, conditions which, together with
their lack of contact with the outside world, Amnesty International considers constitute cruel,
inhuman or degrading treatment in violation of Articles 7 and 10 of the ICCPR. Some
detainees continue to be detained in extreme isolation in a maximum security detention
facility at the facility (Camp Five). The uncertainty about their fate has reportedly contributed 22to severe mental and emotional stress. There have also been complaints of guards showing
disrespect for detainee‟s religious beliefs in violation of Articles 2(1) and 18 of the ICCPR: these include allegations of guards damaging copies of the Qu‟ran, laughing at detainees while they were praying and playing loud music during the call-to-prayer.
As of late September 2005, some 200 Guantánamo detainees were reported to be on hunger
strike, some critically ill, in protest at their continuing lack of access to a court as well as ill-
treatment (including alleged beatings) by guards. Amnesty International has expressed
concern at attempts by the US authorities to downplay the numbers on hunger strike and the
lack of transparency about conditions at the camp. (The organization has called on the US to
open up all “war on terror” detention facilities to independent scrutiny.)
19 See pages 20-22 of Guantánamo and Beyond and pages 182-183 of Human Dignity Denied. 20 Resolution: 2004/41. para 8, 19 April 2004 21 Human Rights Committee General Comment 20. Committee against Torture : UN Doc. A/52/44
(1997), para. 121 (d). 22 In its April 2005 Operational Update, the ICRC expresses its concern inter alia that: “the uncertainty
of their fate has been a contributing factor to the mental and emotional health problems among the
detainees at Guantánamo Bay observed by its delegates and reported by other sources.”
The conditions of isolation under which enemy combatants in the USA are held also amount
to cruel, inhuman or degrading treatment which, in the case of Ali Saleh Kahlah al-Marri may
constitute torture. According to a recent lawsuit filed in his case, al-Marri has been subjected
to treatment which includes sleep deprivation, sensory deprivation, punitive shackling,
exposure to cold, denial of a prayer rug and clock and disrespectful handling of the Qu‟ran, 23treatment which has resulted in severe physical and mental health problems.
Government response to allegations of torture and other ill-treatment – Article 2
The US government has failed to provide an effective remedy for violations of the Covenant
as required under Article 2 (3) in the case of “war on terror” detainees. With respect to the allegations of torture and other ill-treatment exposed at Abu Ghraib and elsewhere, a number
of administrative and criminal inquiries have taken place. However, these have lacked the
necessary independence and scope to address the extent of torture and ill-treatment. The
investigation by Naval Inspector General Vice Admiral Church into Department of Defense
interrogation operations worldwide, for example, (which the US government has described in
its report to the Committee against Torture as “the most comprehensive [investigation] to 24date”) found “no link between approved interrogation techniques and detainee abuse”, despite many of the former violating international standards, including the Covenant, which
prohibit torture and other ill-treatment. The Church investigation did not interview a single 25detainee or former detainee, nor did it interview Secretary Rumsfeld.
To date, a relatively small number of low-ranking officers accused of abusing “war on terror”
detainees have been court-martialled for offences under the Uniform Code of Military Justice.
No US agent has been prosecuted for “torture” or “war crimes” under available US legislation.
High ranking officers, including commanders who may have been responsible for authorizing
or turning a blind eye to torture and other ill-treatment have not been prosecuted. Where
soldiers have been charged, penalties have often been extremely lenient in view of the gravity
of the acts. In over 70% of official investigations conducted in response to substantiated
allegations of abuse, the punishment has been non-judicial or administrative.
Most of the investigations to date have consisted of the military investigating itself, and none
has investigated the higher echelons of the administration, or the USA‟s involvement in secret transfers to and secret detention centres in other countries. The involvement of the CIA in
these and other cases has not been scrutinized. No criminal investigation has been conducted
into the role of senior government officials who may have engaged in a conspiracy to sanction
acts which constitute torture and other war crimes and/or to immunize officials from criminal
liability for torture or other ill-treatment (see below). There are also concerns about the
adequacy of investigations into deaths in custody, with delays and possible cover-ups and/or 26an absence of autopsies in some cases which have hindered investigations.
Amnesty International has called on the US Congress to establish an independent, impartial
and non-partisan commission of inquiry into all aspects of the USA‟s “war on terror”
detention and interrogation policies and practices, and for a Special Counsel to be appointed
to carry out a criminal investigation into the possible involvement of administration officials
23 Preliminary Statement in the case of Ali Saleh Kahla al-Marri v Donald H Rumsfeld and
Commander C. T. Hanft, in the US District Court for the District of South Carolina, 8 August 2005. 24 Unclassified executive summary of review of Department of Defense interrogation operations,
conducted by the Naval Inspector General, Vice Admiral Albert T. Church, III, 10 March 2005,
http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf,p.13. 25 A detailed review of the US government‟s response to the allegations of torture and ill-treatment, and the inquiries conducted, is given on pages 49-58 and 142-160 of Human Dignity Denied (AI Index AMR 51/145/2004) updated in Guantánamo and Beyond, AI Index AMR 51/063/2005). 26 See pages 146-152 of Human Dignity Denied, ibid
Amnesty International remains concerned that the US government has not taken adequate
steps to prevent abuses from occurring in the future, consistent with its obligations under
Article 2(2). In particular, thousands of detainees remain in US custody, many in conditions
(such as incommunicado detention and undisclosed locations) which are conducive to torture
and other ill-treatment and may in themselves constitute such treatment.
Amnesty International is concerned that the US government has shown reluctance to call the
abuses in Abu Ghraib “torture” or to make clear that practices amounting to “cruel, inhuman
or degrading treatment” are equally prohibited under international law. While the government
has replaced a controversial memorandum which narrowed the definition of torture and
advised that the President had authority, in wartime, to override international treaties 27prohibiting torture, there remain concerns about the replacement memorandum. While
undoubtedly an improvement on its predecessor, the replacement memorandum leaves
numerous questions unanswered and the door open to possible future abuses. Specifically, it
sets aside (as “unnecessary” for discussion) rather than rejects the notion that the President
has the authority to order torture and that torturers can be immune from prosecution or 28conviction through defences of “necessity” and “self-defense”. Furthermore, it does not
address the question of cruel, inhuman or degrading treatment, which the previous
memorandum dismissed as not warranting criminalisation. The US government continues to
take the view that non-US nationals held in US custody outside the USA are not legally 29entitled to protection from “cruel, inhuman or degrading treatment”.
The USA must clarify to the Committee, in no uncertain terms, that under its laws no one, the
President included, has the right or the authority to torture or ill-treat detainees or to order
their torture or ill-treatment, under any circumstances whatsoever; that every one, the
President included, who does so will have committed a crime; and that the defences of
“necessity,” “self-defence” and “superior orders” are categorically not available to those who
torture or ill-treat detainees. Amnesty International is deeply concerned that anything short of
this clarification will indicate that there are “grey areas” in US law, policy and practice where
torture and other ill-treatment are considered acceptable.
Reparations - Articles 2(3), 9(5)
There are a range of mechanisms by which persons within the USA and foreign nationals
outside the USA may seek compensation for human rights violations by US officials. The
onus is on the victim to initiate lawsuits for financial compensation or reparations. Amnesty
International is concerned that foreign nationals held outside the USA in the context of the
“war on terror” lack the means and resources to access these procedures and are thus without
an effective remedy.
27 Daniel Levin, Acting Assistant Attorney General, Memorandum for James B Comey, Deputy
Attorney General Regarding Legal Standards Applicable Under 18. U.S.C. 2340-23404, 30 December
2004 (replaced Justice Department memorandum of August 200) 28 The HRC has determined, in discussing Israel‟s interrogation policies and justifications thereof, that
“the „necessity defence‟ argument… is not recognized under the Covenant”. See UN Doc. A/58/40
(Vol. I, 2002-3), para. 85(18). 29 In January 2005 then White House Counsel Alberto Gonzales reported to the Senate that the Justice
Department “has concluded … there is no legal prohibition under the Convention against Torture on
cruel, inhuman or degrading treatment with respect to aliens overseas” (Responses of Alberto R.
Gonzales, Nominee to be Attorney General, to the written questions of Dianne Feinstein, January 2005;
see also page 7 of Guantánamo and Beyond (AI Index AMR 51/063/2005).
As emphasized by the draft Basic Principles and Guidelines on the Right to a Remedy and 30Reparation for Victims of Violations of International Human Rights and Humanitarian Law,
the issue of reparation should focus not only on monetary compensation, but consider
restitution, satisfaction, guarantees of non-repetition and rehabilitation. Rehabilitation is an
important form of reparation in the case of torture survivors. Amnesty International has
spoken to former Guantánamo detainees who have described ongoing physical and mental
problems as a result of their treatment in US custody who have received no assistance after
being peremptorily returned to their home countries.
Right to life – Article 6
In November 2002 in Yemen, with Yemen‟s apparent cooperation, an allegedly CIA-
controlled Predator unmanned aerial vehicle was used to blow up six men in a car, targeted
because the occupants were alleged members of al-Qa‟ida. Amnesty International considers that international law enforcement standards applied in this case, under which lethal force can
only be used as a last resort. To the extent that the US authorities deliberately tried to kill,
rather than attempt to arrest these men, their killing would amount to extrajudicial executions
in violation of Article 6 of the Covenant.
However, the US government has sought to apply the laws of war to justify its actions in this
case. In April 2003, it rejected the concern of the UN Special Rapporteur on extrajudicial,
summary or arbitrary executions that the attacks in Yemen constituted “a clear case of 31extrajudicial killing”. The US government has claimed that, in the context of what it regards
as legitimate military operations, “enemy combatants may be attacked unless they have
surrendered or are otherwise rendered “hors de combat” and that any “Al Qaida terrorist who
continue to plot attacks against the United States may be lawful subjects of armed attacks in
appropriate circumstances”. It also stated that the mandate of the Special Rapporteur does not
extend to “allegations stemming from any military operations conducted during the course of 32an armed conflict with Al Qaida”.
The US government took a similar position when it rejected the Special Rapporteur‟s
concerns, expressed in May 2003, about incidents in Fallujah, Iraq, in which a number of
civilians were shot dead by US forces during demonstrations in unclear circumstances, on the
ground that these, too, fell outside the Special Rapporteur‟s mandate.
The US position that it is not bound by human rights law or, therefore, the jurisdiction of the
Special Rapporteur on extrajudicial, summary or arbitrary executions, has been repudiated by
international expert bodies, on the ground that international human rights law coexists with 33international humanitarian law even in situations of armed conflict. Amnesty International‟s
concerns on this issue, with reference to the December 2004 response of the Special
Rapporteur on extrajudicial, summary or arbitrary executions and to other international
standard setting bodies, are described in Section 5 of the Amnesty International report
Guantánamo and Beyond, pages 39-43. Amnesty International is concerned, as noted, that the
USA will adopt a similar position regarding the applicability of the Covenant to such
30 UN Doc. E/CN.4/2005/59, 21 December 2004, Annex I. 31 Report of the Special Rapporteur, Asma Jahangir, UN Doc. E/CN.4/2003/3, 13 January 2003, para.
39. 32 UN Doc: E/CN.4/2003/G/80, 22 April 2003. 33 Amnesty International disputes the position taken by the USA that the laws of war applied to the
Yemen killings. In Amnesty International‟s view the Yemen situation was covered solely by
international human rights law, as there was no armed conflict between Yemen and the USA or internal
armed conflict (supported by the USA) between Yemen and al-Qa‟ida.
Amnesty International is concerned that military investigations into possible unlawful killings
of civilians in Afghanistan and Iraq have not been conducted in accordance with the USA‟s
obligations under Articles 6 and 2(3) of the Covenant. For example, hundreds of civilians
were killed by US-led forces when they launched major attacks against insurgents in Falluja,
Baghdad, Mosul, Samarra and other cities and towns during 2004. Only a minority of killings
of Iraqi civilians and other alleged abuses involving multi-national forces were investigated,
and those investigations which did take place were inadequate and shrouded in secrecy.
Military commissions. Articles 2, 14 and 26
Military commissions were established under the Military Order on Detentions, Treatment
and Trial of Non-Citizens in the War Against Terrorism, signed by President Bush on 13
November 2001, and provide for the prosecution of “enemy combatants who violate the laws
of war”. Amnesty International considers that the military commissions – which are executive
bodies, not independent and impartial courts – fall far short of meeting international standards for a fair trial as set out, inter alia, under Article 14 of the ICCPR Although the Department of Defense has recently announced some changes to the commission regulations, they remain
fundamentally flawed on the following grounds:
? They lack independence from the executive which determines the rules for the
commissions, selects the personnel, and vets the final decision which would include,
in capital cases, deciding whether a person will live or die;
? The right to counsel and to an effective defence is restricted
? The defendant can face secret evidence which he will be unable to rebut
? The commission can admit evidence extracted under torture or other coercion
? There will be no right of appeal to an independent court
? Only foreign nationals are eligible for such trials, violating the prohibition on the
discriminatory application of fair trial rights under Article 14 (equal protection of the
law) and article 26.
? The procedures compromise the presumption of innocence, as the US administration
has repeatedly labelled the Guantánamo detainees in general (and, by implication,
those named to appear before the commissions) “killers” and “terrorists”.
Four of the Guantánamo detainees have been named to stand trial before the military
commissions. Following an appeal against the legality of the commissions, a US appeals court 34recently ruled that the commissions could go ahead. Although legal challenges continue, the
commission hearings could resume as early as October 2005.
II. CONCERNS ABOUT ANTI-TERRORISM MEASURES TAKEN IN THE USA
– Articles 2, 9, 7, 10 and 26
Some 1,200 foreign nationals – most of them Muslim men of Arab or South Asian origin –
were detained in the USA as terrorist suspects in the months following the 11 September 2001
attacks. Many were detained under an “interim” administrative rule issued by the US Attorney
General on 19 September 2001 extending the time a non-US national could be held in
immigration custody without charge from 24 hours to 48 hours “or to an additional time, if
necessary, under an emergency or other extraordinary circumstances”. Hundreds of the
detainees were arrested for routine immigration violations and were often held for months in
punitive conditions. Many were denied prompt access to lawyers, their families or the courts, 35and to the rights to non-discrimination, the presumption of innocence and humane treatment.
34 Hamdan v. Rumsfeld, No. 04-5393, Opinion (D.C. Cir.), 15 July 2005. 35 These violations are described in detail in USA: Amnesty International’s concerns regarding post September 11 detentions in the USA (AI Index: AMR 51/044/2002).