“If it’s perceived as torture or inhuman treatment — and it’s the case, it’s painful — then it is prohibited by international law,” Rupert Coville, spokesman for the UN High Commissioner for Human Rights.
For nearly three months now, a large scale hunger strike involving over 130 prisoners has gripped Guantanamo Bay as detainees protest their indefinite detention and mistreatment of the Holy Quran. As implemented in previous hunger strikes, the military has not only been force-feeding inmates through nasal tubes, but employing psychological coercion and physical violence to break the dissent. Recently, prisoner Younous Chekkouri described an appalling pre-dawn raid in which prisoners were besieged by rubber bullets and tear gas.
“This is exactly the opposite of what they should be doing,” Carlos Warner, a federal public defender in Ohio, said of the decision to punish prisoners by shifting them in to solitary cells instead of negotiating an end to the strike. “The military is escalating the conflict.”
As the frightening tension increases on the base, little is known of the nature of the interaction between detainees and the prison authority apart from statements by military officials. Numerous human rights groups have called for independent oversight of the facility, something which is now even more remote as the Pentagon has ordered the only civilian flight to remain grounded starting May 1st. Lawyers, journalists and human rights workers will now have to go through a lengthier process of requesting special permission from the Pentagon to board a military flight in order to access the base.
In an effort to deflect international criticism and revive an air of optimism at the prison camp, Obama recently announced that he will revive the campaign to shut down the facility. However, the narrative of blaming an uncooperative Congress in the failure to close Guantanamo rings hollow as legal experts such as Ken Gude point out: “The 2012 National Defense Authorization Act made important changes to previous restrictions granting the Secretary of Defense more discretion in making determinations to transfer Guantanamo detainees,” indicating that the president could at will direct the Secretary of Defense to start relocating detainees.
Statement from the UN:
Washington/Geneva — 1 May 2013—
The Inter-American Commission on Human Rights (IACHR), the United Nations Working Group on Arbitrary Detention (hereinafter, the Working Group), the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, (hereinafter, the UN Special Rapporteurs), call urgently on the Government of the United States of America to respect and guarantee the life, health and personal integrity of detainees at the Guantánamo Naval Base, particularly in the context of the current hunger strike. They also emphatically reiterate the need to adopt concrete measures to end the indefinite detention of persons; provide for their release or prosecution, in accordance with due process and the principles and standards of international human rights law; allow for independent monitoring by international human rights bodies; and close the detention center at the Guantánamo Naval Base.
According to information received and widely disseminated by various media outlets, since the beginning of February of this year a large group of detainees at the Guantánamo Naval Base have been carrying out a hunger strike to protest their state of indefinite detention and the treatment they have received from authorities at the prison. Since the beginning of the hunger strike, the number of detainees who have decided to join the protest has been increasing, according to information issued by the Department of Defense on 17 April 2013. The official number of detainees currently on a hunger strike is 100, of whom 21 are being forcibly fed and another 5 are hospitalized.
The IACHR, the Working Group, and the UN Special Rapporteurs note with utmost concern, as have the International Committee of the Red Cross and the UN High Commissioner for Human Rights, that the Guantánamo detainees’ lack of legal protection and the resulting anguish caused by the uncertainty regarding their future has led them to take the extreme step of a hunger strike to demand a real change to their situation. The IACHR, the Working Group, and the UN Special Rapporteurs stress that even in extraordinary circumstances, when the indefinite detention of individuals, most of whom have not been charged, goes beyond a minimally reasonable period of time, this constitutes a flagrant violation of international human rights law and in itself constitutes a form of cruel, inhuman, and degrading treatment. On this point, during its last period of sessions, the IACHR received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over basic aspects of their lives, such as knowing whether or not they will be tried; whether they will be released and when; or whether they will see their family members again. This continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems.
In addition, the IACHR and the aforementioned United Nations bodies call to mind that, according to the World Medical Assembly’s Declaration of Malta, in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.
The IACHR, the Working Group, and the UN Special Rapporteurs all deem, as has the UN High Commissioner for Human Rights, that the continuing and indefinite detention of individuals without the right to due process is arbitrary and constitutes a clear violation of international law. This situation is particularly clear with respect to those prisoners—at least 86—who have been cleared for transfer by the Government of the United States of America. In other words, all relevant security-related government agencies or authorities have expressly certified that those detainees do not represent a threat to U.S. security. In this regard, the IACHR, along with the Working Group and the UN Special Rapporteurs, deplore the general restriction on transfers imposed since January 2010 on Yemeni nationals, based solely on their nationality and on the political situation in Yemen, which constitutes a clear violation of the principle of non-discrimination. This is even more serious considering that 56 of the 86 detainees approved for transfer in the described terms are of Yemeni nationality.
The Working Group reiterates the request it made to the Government of the United States of America on 22 January 2002, and reiterated along with the UN Special Rapporteurs and other United Nations human rights mechanisms on 25 June 2004, to be allowed to visit the Guantánamo detention center and to hold private, confidential interviews with the detainees as soon as possible. The Rapporteur on Torture reiterated that request in 2011 and 2012. Moreover, the IACHR reiterates its request for the State’s consent to carry out a visit to the Guantánamo detention center without preconditions. The representatives of human rights mechanisms should be able to meet with the detainees of their choosing, without any guards or witnesses present, and with guarantees that those detainees will not suffer subsequent reprisals.
In view of these considerations, the IACHR, the Working Group, and the UN Special Rapporteurs urge the United States of the Americas to:
(a) adopt all legislative, administrative, judicial, and any other types of measures necessary to prosecute, with full respect for the right to due process, the individuals being held at Guantánamo Naval Base or, where appropriate, to provide for their immediate release or transfer to a third country, in accordance with international law;
(b) expedite the process of release and transfer of those detainees who have been certified for release by the Government itself;
(c) conduct a serious, independent, and impartial investigation into the acts of forced feeding of inmates on hunger strike and the alleged violence being used in those procedures;
(d) allow the IACHR and the United Nations Human Rights Council mechanisms, such as the Working Group and the UN Special Rapporteurs, to conduct monitoring visits to the Guantánamo detention center under conditions in which they can freely move about the installations and meet freely and privately with the prisoners; and
(e) take concrete, decisive steps toward closing the detention center at the Guantánamo Naval Base once and for all. Along these lines, they urge the Government to state clearly and unequivocally what specific measures it will implement toward that end.