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Persons detained by the US in relation to armed conflict and counter-terrorism – the role of the ICRC
18-06-2013
This document explains the purpose of the ICRC's visits to places of detention run by the United States in Afghanistan and Guantanamo Bay (Cuba) – and previously in Iraq – and the procedures that the organization follows.
Although terrorism is not new, States continue to be confronted with the question of how to respond adequately and effectively to the security challenges it poses while protecting the fundamental rights of persons who may be detained. Over the years, there has been an intensive and constructive dialogue between the ICRC and the US on the issue of detention related to armed conflict and counter-terrorism. There have been, and continue to be, certain differences of opinion, particularly regarding the legal framework applicable to some of the persons detained in those two situations.
The ICRC has been visiting people captured in the context of armed conflict and counter-terrorism who are being held at US detention facilities in Afghanistan and in Guantanamo Bay, Cuba, since January 2002. From March 2003 to December 2011, it also visited detainees held in US detention facilities in Iraq. It likewise visited three persons held in Charleston, South Carolina.
The ICRC in Guantanamo
The ICRC has been visiting detainees at Guantanamo Bay since January 2002. As of December 2012, it had carried out 91 visits at the detention facility; as of the same date the facility was holding 166 individuals from 23 countries.
- For more information about the ICRC in the United States, please see our page about the ICRC in North America.
The ICRC in Afghanistan
The ICRC has been visiting detainees at the Detention Facility in Parwan (DFIP, formerly the Bagram Theater Internment Facility), located on a US military airbase north of Kabul, since January 2002, three months after the conflict in Afghanistan began in October 2001. As of the end of 2012, the ICRC had carried out a total of 171 visits to the detention facility. Since the beginning of 2008, the ICRC has also had access to detainees at several US-run field detention sites in Afghanistan, where persons are held temporarily before being released or transferred to the DFIP.
Since the beginning of its detention operations in Afghanistan, the US has been transferring internees to Afghan authorities for release or criminal prosecution. From 2011, against the background of the transition of security operations in Afghanistan, new procedures were put in place for transfers to the Afghan government and the rate of transfer of Afghan internees increased. This process was greatly accelerated with the signing of the ‘Memorandum of Understanding on the transfer of U.S. Detention Facilities on Afghan Territory to the Government of Afghanistan’ between the US and Afghanistan on 9 March 2012. In mid-February 2013, the transition process resulted in the physical transfer of 3697 detainees to the Afghan National Detention Facility in Parwan (ANDF-P), located in the same military airbase as the DFIP.
The ICRC maintains a constructive dialogue with the US and Afghan authorities on how to conduct the transfer process in a way that reflects humanitarian concerns, respects detainee rights and adequately prepares the Afghan judicial and penitentiary authorities for handling the additional detainee population. This includes recommendations on how to ensure that transferred detention facilities built by the U.S. can be managed and maintained in accordance with local capacities and customs. This includes, for example, management of facilities, running costs and maintenance, and recommendations to improve sustainability by better adapting design and equipment to local conditions and capabilities.
- For more information about the ICRC in Afghanistan, please see our page about the ICRC in Afghanistan.
Legal issues
The detention of persons captured or arrested within the context of the fight against terrorism (both armed conflict and counter-terrorism operations) must take place within a clear and appropriate legal framework. No person should be deprived of their freedom or interrogated outside such a framework.
The detention of persons in connection with an international armed conflict is governed by international humanitarian law. The relevant rules are contained, in particular, in the Third and Fourth Geneva Conventions of 1949 which deal with prisoners of war and civilian internees, respectively, and in customary international humanitarian law. See our FAQ on the relevance of IHL in the context of terrorism.
The detention of persons in connection with a non-international armed conflict is governed by international humanitarian law – Article 3 common to the four Geneva Conventions,rules of customary international humanitarian law, Additional Protocol II where ratified – and applicable provisions of international human rights law and domestic law.
Persons arrested for offences unrelated to an armed conflict have rights enshrined in other bodies of law, i.e. international human rights law and domestic law.
The ICRC has adopted a case-by-case approach to determine whether situations arising from the fight against terrorism amount to armed conflict or not. It believes that the status of each individual detainee should be determined on the basis of the rules applicable to the situation in which the individual was captured.
Detention for security reasons or for the purpose of prosecution
Persons detained in connection with an armed conflict may be detained either because they are combatants (in international armed conflict), or for imperative reasons of security (in an international or non-international armed conflict), or on suspicion of having committed a crime related to the armed conflict.
Persons detained for imperative reasons of security must be held within a valid legal framework that provides appropriate procedural safeguards to ensure that their detention is lawful. For example, they are entitled to independent and impartial periodic review of whether their continued detention is justified for imperative security reasons. The ICRC maintains an ongoing dialogue with the US authorities on the procedural safeguards that must be upheld when detaining people for imperative reasons of security. Such minimal safeguards aim to ensure the transparency and fairness of procedures for reviewing internment and help alleviate the mental and emotional strain experienced by detainees and their families caused by uncertainty about their fate.
Persons detained on suspicion of having committed a crime within the context of an armed conflict can be prosecuted for such an act. In particular, those suspected of having committed war crimes must be held accountable for their actions. All persons brought to trial must be afforded essential judicial guarantees necessary to a fair trial, including the presumption of innocence, the right to be tried by an impartial and independent court, the right to qualified legal counsel and the exclusion of any evidence obtained through torture or any other form of ill-treatment.
Legal and policy developments
Since the US Supreme Court decision of 12 June 2008 in Boumediene v. Bush and Al Odah v. United States, detainees held at Guantanamo have been able to challenge the lawfulness of their detention before regular US civilian courts through habeas corpus petitions. This means that any Guantanamo detainee can bring proceedings to require the detaining authority or agency to justify the legality of their detention. Since that decision, US courts have heard more than 63 habeas cases involving Guantanamo detainees. In many of these cases, the courts have ordered the release of the detainee.
On 22 January 2009, US president Barack Obama issued three Executive Orders: one ordering the eventual closure of the detention facility at Guantanamo Bay, a second establishing a task force to review detention policy and the individual cases of every detainee held in Guantanamo, and a third banning torture and setting down the rules for lawful interrogation of detainees.
The Executive Order on interrogation reaffirmed that Article 3 common to the Geneva Conventions is a minimum standard for the treatment of anyone detained by the United States in connection with armed conflict. The task force it created completed its work and issued recommendations to the US Attorney General in August 2009. It affirmed that the US Army Field Manual on interrogation provides adequate guidance for interrogators of all US agencies. The task force also made several recommendations to reduce the risk that persons transferred to the authority of another country might be exposed to torture or other forms of ill-treatment. The ICRC welcomes any measure that enhances respect for the responsibility of States to treat detainees humanely and to refrain from transferring them to authorities where they risk ill-treatment, in accordance with the legal principle of non-refoulement (for more information on the principle of non-refoulement, please see Release or transfer of detainees below).
The Guantanamo Review Task Force was also established to review the status of all individuals held at Guantanamo, to determine who can be released or transferred, who should be prosecuted and in what type of court, and how to proceed in cases where the United States decides that it will not release, transfer or prosecute the individuals concerned. This task force issued its report in January 2010, in which it provided details as to those who should be transferred, prosecuted or subject to continued detention. The United States Government has imposed a moratorium on transfers to Yemen for security reasons.
On 28 January 2013, the Obama administration closed the office of the special representative for the closure of Guantanamo Bay. This has added further uncertainty for those detainees who have been designated for transfer or release. Only 16 detainees have been transferred since the Guantanamo Bay Review Task Force released its report, despite the fact that it approved 126 for transfer.
The passage of the 2009 Military Commissions Act (MCA) and 2010 Manual for Military Commissions allowed military commissions to resume at Guantanamo after having been suspended pursuant to an Executive Order. Nonetheless, certain decisions in the federal appeals court have called into question the legality of certain offences set out in the MCA, including material support for terrorism as a war crime.
On 7 March 2011, President Obama issued Executive Order 13567, establishing a Periodic Review Board (PRB) intended to give all detainees the opportunity to contest the necessity of their detention based on whether they continue to represent "a continuing significant threat to the security of the United States." While the PRB Guidelines were finally completed in May of 2012, the PRBs had not commenced as of April 2013.
Persons held at the DFIP benefit from a bi-annual review of their cases as part of the Detainee Review Board (DRB) process. This process was strengthened in 2009 and today provides detainees with greater means to challenge the legality of their internment, notably through the possibility of calling witnesses and being assisted by US military officers who serve as personal representatives during the proceedings. After the 2013 handover of all Afghan detainees in the DFIP to Afghan authorities, the DRB process will only be available to those third-country nationals still in US custody in the DFIP.
The ICRC will continue to monitor all judicial and administrative detention reviews in Guantanamo and the DFIP.
Notifications of arrest and ICRC access to US detention facilities
While the ICRC has been visiting places under US authority since 2002, Executive Order 13491, issued by President Obama on 22 January 2009, directed all agencies of the US government to give the ICRC timely access to any individual detained by the United States in any armed conflict. While welcome, this Executive Order did not actually change the ICRC's access to detainees, as it merely formalized existing practice.
Since August 2009, the ICRC is notified of all persons detained by the US military in situations of armed conflict within 14 days of their capture, at which point the ICRC may ask to visit the detainee under the Executive Order. This helps the ICRC to monitor the fate of those detained by the Department of Defense, and to respond to queries by families seeking news of their relatives.
The ICRC has a transparent relationship with the Department of Defense and is satisfied with progress made as regards access to detention facilities. The ICRC has access to internment, screening, and transit facilities under the control of the Department of Defense.
Why the ICRC?
The ICRC is a neutral, independent and impartial humanitarian organization that 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 the First World War. The ICRC's right to visit persons captured in international armed conflicts, whether prisoners of war or civilian internees, is enshrined in the Geneva Conventions of 1949, to which all States are party.
Article 3 common to the four Geneva Conventions also gives the ICRC the right to offer its services to the parties to a non-international armed conflict. These services include making visits to detainees. Under the Statutes of the International Red Cross and Red Crescent Movement, the ICRC can also 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, of which all States party to the Geneva Conventions, including the United States, are members.
In 2012, the ICRC was granted access to places of detention in 100 contexts, and visited roughly half a million prisoners, including detainees under the jurisdiction of international courts and tribunals.
Aim of the visits
The visits aim to ensure that the detainees' life, dignity and fundamental right to legal protection are respected, and also to prevent ill-treatment and enable the ICRC to track detainees' whereabouts and make recommendations to the authorities concerning any improvements in the conditions of detention that may be necessary. The ICRC makes these observations as part of its ongoing confidential dialogue with the detaining authorities.
The ICRC also strives to ensure that detained persons can re-establish and maintain contact with their families.
Family contacts
For most detainees and their families, Red Cross messages are an important means of maintaining regular contact and can help to alleviate feelings of isolation and uncertainty. Red Cross messages are intended for the exchange of personal and family news and are censored by the authorities. The exchanging of these messages is standard, worldwide practice wherever the ICRC visits places of 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.
Operating the Red Cross message service for detainees and their families is a major logistical undertaking, involving a number of ICRC delegations worldwide and National Red Cross and Red Crescent Societies in the detainees' home countries. Every message is delivered by hand to the detainees or their families. Given the constraints involved, message collection and distribution can be a time-consuming process.
Since 2002, the ICRC has collected around 36,000 Red Cross messages from detainees in Guantanamo addressed to their families and over 23,000 Red Cross messages written by relatives were delivered to detainees. In US detention in Afghanistan, more than 64,000 Red Cross messages have been collected and around 57,000 distributed.
In Guantanamo, a system enabling detainees to regularly speak to their families by telephone, facilitated by the ICRC through its delegations around the world, was implemented by the US authorities in April 2008. Around 500 telephone calls have been made since the system was set up. "Humanitarian phone calls," enabling detainees to talk to their relatives when an event such as a death in the family occurs, are also facilitated by the ICRC at Guantanamo. In September 2009, a video teleconference programme was made available for detainees and their families in 29 countries around the world. As of the end of December 2012, 961 video calls had taken place.
Persons interned at the Detention Facility in Parwan (DFIP) at Bagram Airbase were able to communicate with their relatives by means of a video call system between January 2008 and March 2013. The video link, set up by the US authorities with the cooperation of the ICRC, enabled detainees to see and talk to their loved ones for 20 minutes at a time. Detainees were allowed one video call every three to four months. By the end of 2012, over 14,000 video calls had been placed from this facility.
Most detainees under US authority have now been transferred to the Afghan Ministry of Defence, so in March 2013 a phone bank system was set up with the support of the ICRC. Under this system, families can come to any of the ICRC's offices in Afghanistan and talk to their detained relative in the Afghan National Detention Facility in Parwan (ANDF-P) for 20 minutes every two months. Third country nationals who have remained in US custody can make a one-hour video call every two months.
Since September 2008, families have been allowed to meet their detained relatives face-to-face at the DFIP and the ANDF-P. Families can register for such visits through the ICRC's offices in Afghanistan; more than 4,700 visits have taken place so far. As for the phone calls, the ICRC helps meet travel expenses, enabling poor families from remote areas in Afghanistan to participate in the programme.
The establishment of phone links and of the video teleconference programme at Guantanamo are positive developments. However, the ICRC believes that nothing can replace a face-to-face meeting between family members, and continues to strongly encourage the US authorities to allow such visits to take place.
Release or transfer of detainees
The ICRC speaks in private with detainees who are about to be transferred home or to a third country, to give them the opportunity to raise any fears they may have regarding their treatment following the transfer. The ICRC conveys any such concerns to the detaining authorities and, depending on the circumstances, may make recommendations as to how to proceed. This procedure aims to ensure compliance with the principle of non-refoulement, which prohibits a State from transferring persons to another State or authority if there is a risk that they may be subjected to any kind of ill-treatment or arbitrary deprivation of life, or that they may face persecution on account of their race, religion, nationality, membership of a particular social group or political opinion. Irrespective of any ICRC involvement, it is the transferring authority that bears primary responsibility for ensuring that this rule is upheld and for implementing the necessary procedures.
Wherever possible, the ICRC endeavours to monitor detainees transferred from US detention facilities in Guantanamo and Afghanistan to third countries, in cases where they are subsequently detained. The ICRC aims to visit the detainees in their new places of detention to ensure that the treatment they receive and the conditions of their detention are in line with international legal requirements. If necessary, the ICRC provides assistance to enable released detainees to return to their families.
Dialogue with US authorities
The ICRC addresses detention-related issues with the US authorities primarily through direct and confidential dialogue. The organization regularly discusses its findings concerning US detention facilities in Afghanistan and Guantanamo (and previously in Iraq), with the military authorities responsible for the facilities, and with US government officials in Kabul and Washington. In an interview, ICRC deputy director of operations Dominik Stillhart explains why confidentiality is such an important tool for the ICRC when it comes to building trust, communicating concerns and influencing change.
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