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US detention related to the events of 11 September 2001 and its aftermath – the role of the ICRC

30-09-2006 Operational Update

This document explains the purpose of the ICRC visits to US places of detention in Bagram (Afghanistan), Guantanamo Bay (Cuba) and Charleston and its procedures.

 To find out more about the ICRC's detention work in Iraq see   operational update   of 31 March 2006  

    

The terrible events of 11 September 2001 shocked the world including the ICRC, which immediately condemned the attacks on the United States as an act negating the most basic principles of humanity (see   press release  , 11 September 2001).  

The ICRC recognizes the significant challenge the United States and other countries face in protecting their citizens against the threat of terrorism. Nevertheless, there are serious divergences of opinion about the relevant legal framework regarding some of the persons detained in the fight against terrorism. The ICRC is especially concerned about the fate of an unspecified number of detainees who are being held incommunicado at undisclosed locations seemingly outside any legal framework.

Many of those captured in the context of what is often referred to as the " global war on terror " are be ing held at US detention facilities in Bagram in Afghanistan and in Guantanamo Bay, Cuba. Two persons are furthermore detained in Charleston, USA. The ICRC has been regularly visiting these facilities. The ICRC has also repeatedly appealed to the US authorities for access to people detained in undisclosed locations.

 



 
 
ICRC in Afghanistan 

  Bagram: The ICRC has been visiting detainees at the US-run Bagram military airbase (Bagram Temporary Internment Facility) since January 2002. Most of them are Afghans captured by the US-led coalition in Southern and Eastern Afghanistan. Currently the ICRC is visiting approximately 600 detainees at Bagram. In 2005, the ICRC facilitated the exchange of over 3,900 Red Cross messages between detainees and their families.   
   

 
 


 
   
ICRC in Guantanamo Bay 
   
The ICRC has been visiting detainees held at Guantanamo Bay, Cuba since January 2002. There are currently about 450 detainees from roughly 40 countries. As of December 2005, the ICRC had facilitated the exchange of nearly 20,800 Red Cross messages between the detainees and their families in more than 30 countries.
 
 
   
 

See also: news footage - Families of detainees in Guantanamo and Bagram desperate for news.

 
Legal issues 
 

The detention of persons captured or arrested within the context of the " global war on terror " must take place within a clear and appropriate legal framework and the relevant procedural safeguards. Any person deprived of liberty cannot be detained and interrogated outside of an appropriate legal framework.

People held in connection with armed conflicts such as in Afghanistan fall under the regime of international humanitarian law (IHL) and should be treated accordingly. (See the relevance of IHL in the context of terrorism  .)  

Those persons detained outside of a situation of armed conflict have rights enshrined in a number of other bodies of law, such as international human rights law and relevant provisions of domestic law. The ICRC has adopted a case-by-case approach to qualifying situations arising from the " global war on terror " as an armed conflict or not and believes that the status of detainees should be determined based on the relevant rules. There are currently two broad strands of legal thinking: according to one, detainees in the " global war on terror " are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such. The ICRC does not share either of these views. It is clear that States may also detain persons for imperative reasons of security. 

While the ICRC welcomes any development that leads to a clarification of the future of the detainees at Guantanamo, it does not believe that there is presently a legal regime that appropriately addresses either the detainees'status or the future of their detention.

Due to changed factual and legal circumstances since the launching of the " global war on terror " , persons currently in US hands who are not released or tried must be put in another legal framework: i.e. provided an independent and impartial review of whether their continued detention for security reasons is justified.

   
   
 
  In an interview (19 October 2006) for the ICRC web site, the organization's President, Jakob Kellenberger, explains the ICRC's position on developments in US policy and legislation towards those detained in the fight against terrorism.    
     

People suspected of having committe d war crimes or any other criminal offence can and should be prosecuted. But these individuals must be afforded essential judicial guarantees such as the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to qualified legal counsel and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment.

The ICRC believes that uncertainty about the prisoners'fate has added to the mental and emotional strain experienced by many detainees and their families.

 
Why the ICRC? 
 

The ICRC has been visiting people detained in connection with armed conflicts since 1915 when its delegates first negotiated access to tens of thousands of prisoners of war held during World War One. The ICRC's practice of visiting prisoners of war – combatants captured during an international armed conflict – was codified in the Geneva Conventions of 1949, to which 192 states are party. Common Article Three of the Four Geneva Conventions also gives the ICRC the right to request access to persons detained in non-international armed conflicts such as civil wars. Under the statutes of the International Red Cross and Red Crescent Movement, the ICRC can moreover request access to persons detained in connection with situations of violence that fall below the threshold of armed conflict. These statutes were approved in 1986 by the International Conference of the Red Cross in which States party to the Geneva Conventions including the United States participated.

In 2004, the ICRC visited more than 500,000 detainees in nearly 80 countries around the world.

 
Aim of the visits 
 

The role of the ICRC, as an independent and neutral humanitarian organisation with a mandate conferred on it by states, is to regularly assess the conditions of detention, the treatment of detainees and respect of their fundamental judicial guarantees. The ICRC offers observations and makes recommendations for improvements - where appropriate - in the course of its ongoing confidential dialogue with the relevant authorities. Concerning Bagram, Guantanamo Bay and Charleston, the responsibility for ensuring that detainees are treated in accordance with international humanitarian law and other applicable bodies of law lies with the US authorities.

The ICRC's visits to Bagram and Guantanamo Bay are a continuation of the work the organisation had been carrying out in detention places in Afghanistan during the war in 2001.

 
Procedures 
 

ICRC detention visits are usually carried out by a team of specialised delegates as well as interpreters and medical personnel when appropriate. The organisation follows the same standard working procedures wherever it visits detainees. These include:

  • ICRC delegates must be able to speak in total privacy to each and every detainee held; delegates inspect all cells and other facilities.

  • Visits are carried out at a frequency of the ICRC's choice and for as long as people are held in detention.

  • All detainees have the opportunity to write to their families using the Red Cross message system and to receive Red Cross messages from their next of kin.

  • Delegates conduct confidential discussions with the camp authorities before and after each visit to raise concerns and make recommendations where appropriate.

  • The ICRC individually registers the identities of detainees falling within its area of concern. This makes it possible to monitor the situation of each detainee throughout his or her period in detention.

 
Red Cross messages 
 

For most detainees and their families, Red Cross messages are an important means of maintaining regular contact and can thus help to alleviate feelings of isolation and uncertainty over their future. Red Cross messages are intended for the exchange of personal and family news and are censored by the US authorities. This corresponds to standard worldwide practice wherever the ICRC visits places of detention.

The Red Cross message service for detainees and their families is a major logistical exercise, involving a number of ICRC delegations worldwide, as well as national Red Cross and Red Crescent societies in the detainees'home countries. Every message is delivered by hand to the detainees and their families. Given the constraints involved, message collection and distribution is a time consuming exercise.

 
Releases or transfers of detainees 
 

The ICRC interviews in private any detainee about to be transferred out of Guantanamo Bay to allow him the opportunity to raise any possible fears of persecution should he be sent home or to a third country. The ICRC then relays the detainee's comments to the detaining authorities and makes recommendations as to how to proceed. This procedure aims to ensure respect for the internationally recognised prohibition of all forms of transfers of a person to an authority if there is a risk that the person will face ill-treatment. Regardless of any ICRC involvement, the authorities retain the primary responsibility for the respect of this rule and the implementation of the necessary procedures.

Th e ICRC follows up on all cases of detainees transferred from Guantanamo Bay to third countries, particularly if they are subsequently rearrested and deprived of their liberty. The ICRC aims to visit these detainees in their new place of detention to ensure that their treatment and the conditions of detention are in conformity with international legal requirements.

Whenever needed, ICRC delegates are present when detainees are released and provide clothes and transport fares to enable the freed detainees to return to their families.

 
Dialogue with the US authorities 
 

The ICRC regularly discusses its findings concerning Bagram, Guantanamo Bay and Charleston with the military authorities in the camps as well as with the appropriate US government officials in Kabul and Washington. A number of the ICRC's observations regarding the conditions and treatment of detainees at Bagram and Guantanamo Bay have been addressed.

While the ICRC has felt compelled to make some of its concerns public, notably regarding the legal status of the detainees, the primary channel for addressing issues related to detention remains its direct and confidential dialogue with the US authorities.

 
Confidentiality. Why? 
 

Wherever the ICRC visits places of detention, its findings and observations about the conditions of detention and the treatment of detainees are discussed directly and confidentially with the authorities in charge. Bagram, Guantanamo Bay and Charleston are no exceptions. The ICRC's lack of public comment on the conditions of detention and the treatment of detainees in the nearly 80 countries where it visits places of detention must therefore not be interpreted to mean that it has no concerns.

Confidentiality is an important working tool for the ICRC in order to preserve the exclusively humanitarian and neutral nature of its work. The purpose of this policy is to ensure that the ICRC obtains and, importantly, maintains, access to detainees around the world held in highly sensitive situations of armed conflict or other situations of violence. Working outside the spotlight of media attention can make it easier for the ICRC and the detaining authorities to achieve concrete progress in detention places.

The ICRC is also concerned that any information it divulges about its findings in places of detention could easily be exploited for political gain. The ICRC furthermore regrets the fact that on a number of occasions over the past two years confidential information it transmitted to the US authorities was published by media. The ICRC never transmitted confidential information to the media or gave its consent for confidential information about detention issues to be made public.

 
Detention at undisclosed locations 
 

Beyond Bagram and Guantanamo Bay, the ICRC is concerned about the fate of an unknown number of people detained at undisclosed locations. For the ICRC, obtaining information on these detainees and access to them is a priority and a logical continuation of its current detention work in Afghanistan and Guantanamo Bay. Although no agreement has as yet been reached on the notification of these detainees to the ICRC and ICRC access to them dialogue continues with the US authorities on this issue.