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European Parliament EUROPEAN PARLIAMENT GGG G G G G 1999 G G 2004 GGG Committee on Citizens' Freedoms and Rights, Justice and Home Affairs PROVISIONAL 2003/2229(INI) 12 January 2004 DRAFT OPINION of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs for the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy on Guantanamo detainees' right to a fair trial (B5-0426/2003 - 2003/2229(INI)) Draftswoman: Baroness Ludford PA\519631EN.doc PE 339.593 EN EN PA_NonLeg PE 339.593 2/7 PA\519631EN.doc EN PROCEDURE The Committee on Citizens' Freedoms and Rights, Justice and Home Affairs appointed Baroness Ludford draftswoman at its meeting of .... It considered the draft opinion at its meeting of ......... At the latter meeting it adopted the following suggestions by ....... votes to ....., with .... abstention...... The following were present for the vote: ..... (chairman), ..... (vice-chairman), ..... (vice- chairman), Baroness Ludford (draftswoman), ....., ......, ....., ..... and ...... PA\519631EN.doc 3/7 PE 339.593 EN SHORT JUSTIFICATION 1. The issue of the prisoners captured in Afghanistan, and incarcerated for the past 2 years under executive order without charge or trial in Camp Delta at the US naval base at Guantanamo Bay in Cuba, has been discussed on many occasions by the European Parliament. Whilst supporting the fight against terrorism, Parliament declared that 'the US Patriot Act, which discriminates against non-US citizens, and President Bush's executive order on military tribunals' were contrary to the principle of the protection of fundamental rights1. It should be recalled that other prisoners are detained in Afghanistan and (apparently) on the British island leased to the US, Diego Garcia. 2. In the reported words of one detainee: 'you don't have the right to have rights.' The US Government has refused to release the names of the prisoners, but unofficial information suggests 660 from 40 countries, including three children, of which one is 13. The best guess is that there are about 25 EU nationals and residents, of which 12 are British. Access is permitted only to the International Committee of the Red Cross and some foreign diplomats, but no lawyers or family members. Mail is infrequent and censored. Lights are kept on 24 hours, and there have been 32 reported suicide attempts. It is reported that 'stress and duress' ('torture lite') techniques are used in interrogation, which are likely to breach the bans on torture or inhuman or degrading treatment. The ICRC, breaking its normal habit of silence, recently said the indefinite detention without legal safeguards was unacceptable due to the 'open-endedness of the situation and its impact on mental health...'. Along with the threat of the death penalty, this Kafkaesque situation must make guilty pleas, 'confessions' and plea-bargaining both more likely and more suspect. Illegality of detention 3. The US Government has refused to acknowledge that these prisoners must fall under either the Third Geneva Convention (lawful combatants entitled to prisoner of war protections) or the Fourth (civilians); there is no intermediate status. It categorically rejects designation of any of the alleged Taliban or al-Qa’ida supporters as POWs, and refuses to submit their status for resolution by a competent tribunal as required in case of doubt. If POWs, they would have protection against interrogation and could be held only until cessation of hostilities, unless tried for war crimes under due process in a court martial, which, unlike the Bush/Rumsfeld military commissions, offers virtually every regular court protection except jury trial. But if not POWs they are civilians, who must be tried in the normal American criminal justice system for any crimes allegedly committed. For both categories when charged with a crime, the protections of the International Covenant on Civil and Political Rights would apply, especially Articles 9 and 14 (these guarantees being of course reflected in the US Constitution) and the right to challenge lawfulness of detention ("habeas corpus") is an absolutely core safeguard. 4. The Bush administration has argued that the Geneva Conventions are obsolete when dealing with terrorists and has chosen to apply neither those conventional laws of war nor the criminal law in which human rights norms (ICCPR and US Constitution) should apply. They have tried to 1 B5-0813/2001 of 13 December 2001. European Parliament resolution on judicial cooperation between the European Union and the United States of America in combating terrorism. (Also the resolution on EU-US judicial cooperation) PE 339.593 4/7 PA\519631EN.doc EN straddle both by inventing a new residual category of 'unlawful combatant' in the potentially unlimited 'war on terror' (transformed from a metaphorical to a literal term), but such status is unknown in international law. Paradoxically, it portrays al-Qa’ida as a liberation movement rather than the most dangerous criminal organisation that has ever existed. 5. Britain's Court of Appeal has criticised as 'objectionable that [British detainee Feroz Abbasi] should be subject to indefinite detention in territory over which the US has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.' Its description of this detention as 'a legal black hole' was echoed in a recent lecture by one of the judicial members of the House of Lords (i.e. UK supreme court judge), Lord Johan Steyn. The UN Commission on Human Rights' Working Group on Arbitrary Detention has condemned the detentions as arbitrary. 6. In addition, double standards and discrimination are practised. White US citizen and Taliban fighter John Walker Lindh was prosecuted in the normal civilian criminal justice system, whereas not only the foreigners but fellow Americans Yaser Hamdi and Jose Padilla have been subject to incommunicado military detention (although in their case on US territory). 7. The denial of the prisoners' right to access the normal civil courts and the protection of the US Constitution has so far sadly been backed by the US courts, on the grounds that Guantanamo Bay, even though the US is in actual control of the base, is not sovereign US territory. It is welcome that the Supreme Court has now said it will decide on whether US courts have jurisdiction (though not, itself, on legality of detention). Illegality of military commissions 8. Lord Steyn said "trials of the type contemplated by the US government would be a stain on US justice and 'the term kangaroo court springs to mind'.": 'The regime applicable at Guantanamo Bay was created by a succession of presidential orders. ....The military will act as interrogators, prosecutors, defence counsel, judges, and when death sentences are imposed, as executioners. The trials will be held in secret. None of the basic guarantees for a fair trial need be observed. The jurisdiction of the United States courts is excluded. The military control everything. It is, however, in all respects subject to decisions of the President as Commander-in-Chief even in respect of guilt and innocence in individual cases as well as appropriate sentences. It is an awesome responsibility...' 9. There is no appeal process as such, only a review body under the authority of the Defence Secretary and the President and to which no submissions can be made. The choice of civilian counsel is severely restricted (without legal aid) to American citizens who will have only limited rights of access to evidence and to parts of the trial, if the presiding officer permits. Rights for the accused to produce evidence in defence are restricted. Military counsel is allowed free access to all evidence but cannot obtain clients' instructions on it. In all matters except the right to a translator, this procedure is in flagrant breach of the ICCPR. Conclusion PA\519631EN.doc 5/7 PE 339.593 EN 10. The failure to give access to any independent court by imposing indefinite detention through executive order, and the military commissions' denial of ICCPR protections are, without doubt, blatant violations of international law. The additional disregard of the rule of law exhibited by the prejudicial remark of President Bush (the prospective 'appeal judge') that all the prisoners were 'bad people' and 'killers' marks a further deterioration. These compromises of US standards in the name of 'national security' deprive the US of the moral authority to achieve human rights' goals including elimination of terrorism, dismaying her friends, delighting her enemies and providing a precedent being smugly followed by some very nasty regimes. Some governments including the UK and Australia have been 'negotiating' better trial conditions (e.g. no death penalty) or repatriation for their nationals, but with no final outcome yet. SUGGESTIONS The Committee on Citizens' Freedoms and Rights, Justice and Home Affairs calls on the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy, as the committee responsible, to incorporate the following suggestions in its motion for a resolution: A. whereas around twenty of the prisoners at Guantanamo Bay are nationals of an EU Member State and thus have the right to consular protection from their respective states of nationality, while several others are long term legal EU residents meriting consular assistance, B. whereas the European prisoners also enjoy European Union citizenship, which under Art. 20 of the EC treaty confers the right to consular protection from all EU states, C. whereas representations have apparently been made by several Member States without yet obtaining any notable results, and believing that the EU itself must now be active in using the powers it has under the Treaties in diplomacy and in transatlantic judicial co-operation on crime and extradition 1 to safeguard fundamental rights, D. whereas it is unacceptable for the most powerful democracy in the world whose leaders repeatedly call for others to respect the rule of law to seek to evade the obligation to respect the fundamental rights of the prisoners by arguing that they are outside US territory, E.
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