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Chapter 5: Security Detention

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Chapter 5: Security Detention July 2010, The Equal Rights Trust CHAPTER 5: SECURITY DETENTION Detention for the purposes of national security is a practice which sharply increased in importance since September 2001. One consequence has been protect those of their citizens detained as terrorist suspects in other coun- tries,that national notably governmentsin the U.S. detention found it facility increasingly at Guantanamo difficult, ifBay, not against impossible, human to rights abuses. In these situations, stateless persons are even more vulnerable to abuse than citizens, because they have no state of nationality to intercede on their behalf: As a result of counter-terrorism measures undertaken by certain States, including the United States of America, individuals have been captured, detained, including being held in unacknowledged locations, and subjected to extraordinary rendition involving practices of proxy detention in unacceptable and non-monitored conditions. This may have even resulted in long-term situations of detention, particularly for persons apprehended in Afghanistan and Iraq. 445 In some of the countries researched by ERT, human rights violations in the context of security detention have had a particularly harsh impact on the stateless. ���������������������������������������������������������������The human �����������������������������������������������������rights violations at Guantanamo Bay have included in- detentiondefinite detention of non-national of those securitywithout andetainees effective was nationality, struck down and byhave the been courts the infocus the ofBelmarsh intense judgmentpress and [discussed civil liberties in section coverage. 1.2.2.3. In the above] UK, the when indefinite judges found that keeping non-nationals (including stateless persons), but not na- 446 Australia has also imposed a strong regime of security detention and other formstionals, of in restriction indefinite ofsecurity liberty detention including was the aimposition breach of theof control right to orders liberty. on terror suspects. 445 See UN General Assembly, Protection of human rights and fundamental freedoms while countering terrorism: note by the Secretary-General, Report of the Special Rapporteur on the Pro- motion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 15 August 2007, A/62/263, Para 54. 446 A and Others v Secretary of State for the Home Department [2004] UKHL 56. However, in response to the judgment, a strong regime of Control Orders was imposed on non-national (and national) terror suspects. -176- Unravelling Anomaly Gihan De Chickera © incommunicado detention of terror suspects – many of whom, including the stateless, are irregularKenya too migrants. has increased Furthermore, its practice it is feared of indefinite that some andof the facilities used for such detention purposes remain secret and have not been gazetted. Particularly worrying is the report by Human Rights Watch that many of the individuals detained by the Kenyan security services were subsequently rendered by Kenya into the custody of Somali and Ethiopian authorities in Somalia.447 Myanmar, notorious for the arbitrary manner in which its law is imposed, on occasion prosecutes stateless Rohingya under national security legislation, example, emergency security legislation448 has been used to punish Rohingya religiouseven for clericsoffences for extendingwhich have mosque no actual buildings relevance without to national permission. security. For A discussion of security detention in the context of statelessness is shaped to a certain extent by Article 1 (2) (iii) of the 1954 Convention. Accordingly, the following are excluded from Convention protection: Persons with respect to whom there are serious reasons for considering that: 447 Human Rights Watch, Why am I still here?, 30 September 2008. 448 See Section 5 (j) of the Burma Emergency Provisions Act of 1950 (Burma Act 17). -177- July 2010, The Equal Rights Trust a. They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes; b. They have committed a serious non-political crime out side the country of their residence prior to their admission to that country; c. They have been guilty of acts contrary to the purposes and principles of the United Nations.449 Whether a stateless person in security detention falls within the scope of the exclusion clauses or not is clearly a matter of fact. But persons who have been cleared for release from security detention after investigation arguably should not be excluded from Convention protection. This is an area for fur- However,ther research this andis only reflection. relevant to de jure stateless persons in security deten- tion, and not de facto stateless persons, because they are not eligible for such protection. Furthermore, all stateless persons in security detention, whether protection of general human rights law. excluded from the protection of the 1954 Convention or not, benefit from the ERT recently published a report on the security and immigration detention of stateless persons in the USA.450 The section below draws on this report to identify the human rights impact that security detention has on the stateless, and also the unanticipated impact statelessness has had on security deten- 5.1tion NATIONAL regimes, notably SECURITY that affecting DETENTION detainees AT GUANTANAMO held at Guantanamo BAY Bay. In January 2002, the first detainees were transported to the detention facility at Guantanamo Bay Naval Base, Cuba.451 At its peak, the facility held more than 750 persons from over 40 countries between the ages of 449 See Article 1 (2) (iii) of the 1954 Convention. 450 The Equal Rights Trust, From Mariel Cubans to Guantanamo Detainees: Stateless Persons Detained under U.S. Authority, January 2010, available at: http://www.equalrightstrust.org/ ertdocumentbank/Statelessness_in_USA_17_Jan.pdf. 451 See “Guantanamo Bay Timeline”, Washington Post, available at: http://projects.washing- tonpost.com/guantanamo/timeline/ [accessed on 6 June 2010]. -178- Unravelling Anomaly 10 and 80.452 battles were fought on behalf of the detainees in the U.S. courts, President Barack Obama After signed seven an Executiveyears in operation, Order in January during which2009 requiring:many fierce (1) legal the closure of detention facilities at Guantanamo; and (2) the immediate review of all Guantanamo detentions.453 An Inter-Agency Review Team (IART) was given a mandate to carry out this review process.454 The Order acknowledged that more than 500 of the approximately 800 de- tainees held in the Guantanamo Bay detention facility had already been trans- ferred to their country of nationality or a third country, and that “a number of the individuals currently detained at Guantanamo are eligible for such transfer or release”.455 had cleared for release 75 of the 223 men still detained.456 Of the 75, six Chi- nese Uyghurs Whenhave been the IART temporarily finished resettledits first reviews in Palau. in InSeptember December 2009, 2009, it Defence Secretary Robert Gates informed the Senate that 116 men had been cleared for release, of which a Kuwaiti, six Yemenis, four Afghans, two Somalis and two more Uyghurs have been released at the time of writing.457 In Janu- ary 2010, the population at Guantanamo Bay was accordingly 196 prisoners, of which 101 had been cleared for release, 40 were to be tried and 55 cases were still being reviewed. The prisoners cleared for release included persons from Algeria, Azerbaijan, China, Egypt, Kuwait, Libya, Saudi Arabia, Syria, Ta- jikistan, Tunisia, Uzbekistan, the West Bank, and Yemen, many of whom could not return to their country of nationality or last habitual residence, due to the likelihood of torture, a threat which is connected to their detention in Guantanamo as terrorist suspects. This means that in law and practice many de facto stateless. But they have not been recognised – by the U.S. or internationally – as a protected group,of these and men they had remain no effective in severe nationality conditions and of were detention with no immediate hope of release. 452 Centre for Constitutional Rights, Guantanamo Bay Six Years Later, 2008. 453 President of the United States of America, Executive Order: Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, 22 January, 2009, Sections 3 – 4, available at: http://www.whitehouse.gov/the_press_office/Clo- sureOfGuantanamoDetentionFacilities/ [accessed on 5 June 2009]. 454 Ibid., Section 4(c)(2). 455 Ibid., Section 2(a). 456 Reuters, Obama team clears 75 at Guantanamo for release, 28 September 2009. 457 Worthington, A., 116 Guantanamo prisoners cleared for release; 171 still in limbo, 7 De- cember 2009, available at: http://www.andyworthington.co.uk/2009/12/page/3/ [accessed on 15 January 2010]. -179- July 2010, The Equal Rights Trust 5.1.1 Non-Refoulement and De Facto Stateless Detainees A few of the remaining detainees at Guantanamo Bay, including three Pal- estinians, are legally stateless. Most of the men who have now been cleared for release do have a legal nationality, but while in most cases the countries of nationality have expressed a willingness to receive the men, their interest appears to be less in protecting the rights of their citizens than in interro- gating them as former Guantanamo detainees; moreover, a number of these countries are known to use torture. This means
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