Persons detained by the US in relation to armed conflict and the fight against terrorism – the role of the ICRC

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 suspects they have to detain. Over the years, there has been intensive dialogue between the ICRC and the US on the issue of detention related to armed conflict and counter-terrorism. There have been some differences of opinion, particularly regarding the legal framework applicable to some of the persons detained in the fight against terrorism. However, the ICRC welcomed the three detention-related Executive Orders issued by President Obama on 22 January 2009 as an opportunity for a thorough review of the status of all detainees and of the conditions and procedures governing internment.

The ICRC has been visiting people captured in the context of armed conflict and the fight against terrorism who are being held at US detention facilities in Afghanistan and in Guantanamo Bay, Cuba, since January 2002 and in Iraq since March 2003. It also visited three persons held in Charleston, South Carolina, during the period of their detention there.

The ICRC in Guantanamo

The ICRC has been visiting detainees at Guantanamo Bay since January 2002. As of December 2011, it had carried out 83 visits at the detention facility, and as of the same date the facility was holding 171 individuals from 24 countries.

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 2011, the ICRC had carried out a total of 160 visits at the detention facility. Of the approximately 3,000 detainees currently held there, most are Afghans captured by the US-led coalition in southern and eastern Afghanistan. Since the beginning of 2008, the ICRC has also had access to detainees at several US-run field detention sites in Afghanistan where they are held temporarily before being released or transferred to the DFIP.

As part of a planned gradual decrease in the US military presence in Afghanistan from 2011, the DFIP and many of the persons held there are to be transferred over time to the Afghan government authorities. The ICRC maintains a constructive dialogue with the US and Afghan government authorities on how to conduct this 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.

The ICRC in Iraq

The ICRC has been visiting detainees held by the United States in Iraq since the beginning of the armed conflict in 2003. Since then, ICRC delegates have conducted close to 180 visits to US places of detention in the country, notably the theatre internment facilities (TIF) near Baghdad (TIF Remembrance II and TIF Taji) and near Basra (Camp Bucca), which have since been handed over to Iraqi authority or closed. The ICRC also had access to holding facilities operated by the US military where persons were detained temporarily before being released, transferred to other facilities under US authority or transferred to Iraqi authority. At the height of the insurgency in 2006, the ICRC simultaneously monitored the cases of up to 27,870 persons held by the US military.

From January 2009, a bilateral agreement between the governments of Iraq and the United States (Security Agreement, also referred to as the Status of Forces Agreement or SOFA) replaced previous UN Security Council resolutions as a legal framework for the arrest and detention of persons by US authorities in Iraq. According to this agreement, any new capture would be carried out according to an Iraqi decision issued in accordance with Iraqi law.

As a result of the Security Agreement, the 16,000 detainees held by US forces when the agreement came into force were either released or charged by the Iraqi authorities under domestic criminal law between January 2009 and July 2010. Some remained in a US-run place of detention, TIF Cropper. The handover of this facility to the Iraqi government took place in July 2011.

After January 2009, the ICRC continued to visit persons in US-run detention facilities (whether they were detained under the authority of the United States or charged under Iraqi law) and it continued to do so until the last detainee in US custody in Iraq was handed over to the Iraqi authorities in December 2011.

Legal issues

The detention of persons captured or arrested within the context of the fight against terrorism must take place within a clear and appropriate legal framework. No person should be deprived of his freedom or interrogated outside an appropriate legal framework.

The detention of persons in connection with an international armed conflict is governed by international humanitarian law. Persons detained should be treated accordingly. In particular, the rules set out in the Third and Fourth Geneva Conventions should be adhered to. (See The relevance of IHL in the context of terrorism.)

The detention of people in connection with a non-international armed conflict is governed by Article 3 common to the four Geneva Conventions, the 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 because they represent an imperative threat to security, or on suspicion of having committed a crime.

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 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 security reasons. Such minimal safeguards aim to ensure the transparency and fairness of procedures for reviewing internment or administrative detention 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 or outside the context of an armed conflict, can be prosecuted. In particular, those suspected of having committed war crimes must be held accountable for their actions. All persons put on 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 tribunal, 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 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, through Habeas Corpus petitions, the lawfulness of their detention before regular US civilian courts. This means that any Guantanamo detainee can bring proceedings to require the detaining authority or agency to justify the legality of the detention. Since that decision, US courts have heard more than 53 habeas cases involving Guantanamo detainees. In the vast majority of these cases, the courts have ordered the release of the detainee. 

On 22 January 2009, US President Barack Obama issued three Executive Orders concerning the closure of the detention facility at Guantanamo Bay, detention policy and interrogation. The orders established three task forces.

The Executive Order on interrogations 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 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. A moratorium was imposed by the USG on transfers to Yemen for security reasons. Military Commissions have resumed at Guantanamo after having been suspended pursuant to the Executive Orders. 

The third task force was given the job of reviewing US detention policies more generally.

The ICRC is monitoring closely the impact of the decisions of the Task Forces. 

Persons held at the DFIP benefit from a bi-annual review of their cases as part of the so-called Detainee Review Board 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.

Notifications of arrest and ICRC access to US detention facilities

The 22 January 2009 Executive Orders issued by President Obama directed all agencies of the US Government to provide the ICRC with timely access to any individual detained by the United States in an armed conflict.

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. This helps the ICRC monitor the fate of those detained until they leave US custody, and to respond to queries by family 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 an independent 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 combatants captured in international armed conflicts 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 request access to persons detained in non-international armed conflicts. 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.

Each year, the ICRC visits roughly half a million prisoners and detainees in more than 70 countries worldwide.

Aim of the visits

The visits aim to ensure that the detainees' life, dignity and fundamental right to legal protections 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 thus 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. This corresponds to 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 32,000 Red Cross messages from detainees in Guantanamo addressed to their families and over 22,000 Red Cross messages messages written by relatives were delivered to detainees. In US detention in Afghanistan, more than 57,000 Red Cross messages have been collected and around 53,000 distributed. People held in US internment facilities in Iraq have exchanged over 400,000 Red Cross messages with their families.

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  1,800 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.

Persons interned at the Detention Facility in Parwan (DFIP) at Bagram Airbase have been able to communicate with their relatives by means of a video call system since January 2008. The video link, set up by the US authorities with the cooperation of the ICRC, enables detainees to see and talk to their loved ones for 20 minutes at a time. Detainees are allowed one video call every two months. As of the end of 2011, over 11,900 video calls had been placed from this facility. Earlier, in September 2009, a similar video teleconference programme was launched for detainees at Guantanamo and their families in close to 30 different locations in 20 countries around the world.

Since September 2008, families have been allowed to meet their detained relatives face-to-face at the DFIP in a new visitation centre set up by the US authorities. Families can register for such visits at the ICRC delegation in Kabul; more than 2,500 visits have taken place so far. As for the video calls, the ICRC helps meet travel expenses enabling poor families from remote areas in Afghanistan to participate in the programme.

From October 2005 to September 2009, the ICRC helped families to visit loved ones held in Bucca Internment Facility by covering part of their travel costs. Over four years, almost 30,000 detainees received 146,000 visits from their relatives with ICRC support.

While the ICRC believes that nothing can replace a face-to-face meeting between family members, it views the establishment of phone links and the video teleconference programme at Guantanamo as positive developments.

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 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 people 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 which 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, Afghanistan and Iraq 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 ICRC regularly discusses its findings concerning US detention facilities in Afghanistan, Iraq and Guantanamo with the military authorities responsible for the facilities, and with US government officials in Kabul, Baghdad 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.

Confidentiality – why?

Wherever the ICRC visits places of detention, it discusses its findings and observations about the conditions of detention and the treatment of detainees directly and confidentially with the authorities in charge. ICRC visits to US detention facilities in Afghanistan, Iraq and Guantanamo Bay are no exception. The ICRC's lack of public comment on the conditions of detention and the treatment of detainees in the more than 70 countries where it visits places of detention must therefore not be interpreted as meaning that it has no concerns.

The purpose of the ICRC's policy of confidentiality is to ensure that the organization obtains – and, importantly, maintains – access to detainees around the world held in highly sensitive situations of armed conflict or other violence. Working outside the spotlight of media attention often makes it easier for the ICRC and the detaining authorities to achieve concrete progress in places of detention.

Confidentiality is thus an important working tool that the ICRC uses to preserve the exclusively humanitarian and neutral nature of its work.

The ICRC is concerned that any information divulged about its findings in places of detention could easily be exploited for political purposes. It deplores the fact that confidential information conveyed to the US authorities has been published by the media on a number of occasions in recent years. The ICRC has never given its consent to the publication of such information.