US detention related to the fight against terrorism – the role of the ICRC
04-03-2009 Operational Update
This document explains the purpose of the ICRC's visits to United States-run places of detention at Bagram, Afghanistan, Guantanamo Bay, Cuba, and Charleston, South Carolina, United States, 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 suspects they have to detain. Over the years, there has been intensive dialogue between the ICRC and the US on this issue and some differences of opinion, particularly regarding the legal framework applicable to some of the persons detained in the fight against terrorism. However, the ICRC has welcomed the various detention-related decisions taken by the United States that were formalized in several executive orders issued by President Obama on 22 January 2009. The ICRC sees these orders as an opportunity for a thorough review of the status of all detainees and of the conditions and procedures governing internment.
The ICRC visits people captured in the context of the fight against terrorism and held at US detention facilities in Bagram, Afghanistan, and Guantanamo Bay, Cuba. It has also visited one person held in Charleston, South Carolina.
The ICRC in Guantanamo
The ICRC has been visiting detainees at Guantanamo Bay since January 2002. As at January 2009, there were 242 individuals from about 30 countries being held there.
The ICRC in Afghanistan
The ICRC has been visiting detainees at the US-run Bagram Theater Internment Facility, at the Bagram military airbase, since January 2002. Most of the detainees are Afghans captured by the US-led coalition in southern and eastern Afghanistan. Currently the ICRC is visiting around 550 detainees at Bagram Theater Internment Facility. At the beginning of 2008, the ICRC was also granted access to detainees at several US-run field detention sites in Afghanistan, where people are often held before being transferred to the Theater Internment Facility.
The executive orders issued by President Obama 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 an armed conflict.
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 deprived of his freedom should be detained and interrogated outside an appropriate legal framework.The detention of people in connection with an international armed conflict is governed by international humanitarian law. The people 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 Arti cle 3 common to the four Geneva Conventions, the rules of customary international humanitarian law, and applicable provisions of international human rights law and domestic law.
Persons arrested for offences unrelated to an armed conflict have rights enshrined in a number of other bodies of law, including 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 detained.
Detention for security reasons or for the purpose of prosecution
Persons detained in connection with an armed conflict may be detained either for imperative reasons of 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 or other serious violations of international humanitarian law should 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.
Important developments include the recent executive orders issued by President Barack Obama, the US Supreme Court decision in June 2008 to uphold habeas corpus for Guantanamo detainees, and the establishment of Enemy Combatant Review Boards at the Bagram Theater Internment Facility.
On 22 January 2009, US President Barack Obama issued a series of executive orders concerning the detention facility at Guantanamo Bay and policies and practices relating to detention and interrogation. One order sets a one-year deadline for closing the Guantanamo facility. The Executive Orders also establish several review panels. One panel will review the status of all individuals currently held at Guantanamo to determine which of them can be released or transferred, which should be prosecuted and in what type of court, and, finally, how to proceed in cases where the United States does not want to release, transfer or prosecute the individuals concerned. Other panels will review policies and procedures concerning interrogation and transfer to other countries, and longer term detention policies.
The first panel to complete its report was given the task of reviewing conditions of detention at Guantanamo within 30 days to ensure they comply with all applicable laws, including Article 3 common to the four Geneva Conventions. This panel, headed by the Vice Chief of Naval Operations, submitted its report to the White House in late February. During the review period, the ICRC took steps to ensure that an up-to-date assessment of the ICRC's perspective on conditions of detention at Guantanamo was available to the report's authors.
The ICRC believes the report makes many valuable recommendations for further improving the conditions of detention at Guantanamo. It supports these recommendations, particularly those dealing with increased socialization for all detainees, and measures to reduce tension caused by uncertainty. The ICRC disagrees, however, with the report's recommendation supporting forced-feeding of detainees. The ICRC iscontinuing its confidential dialogue with US authorities to ensure that all conditions at the Guantanamo detention facilities are consistent with the standards of international law, including the Geneva Conventions.
The Supreme Court decision of 12 June 2008 in Boumediene v. Bush and Al Odah v. United States gives Guantanamo detainees the right to challenge 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. The ICRC is monitoring the impact of legal developments in connection with the habeas corpus ruling and will communicate any observations or concerns directly to the US authorities if needed.
Every six months, the Enemy Combatant Review Boards set up at Bagram examine whether to release individual d etainees or keep them in custody. While this is a positive step, it does not alter the need for more robust procedural safeguards at Bagram Theater Internment Facility.
The ICRC has repeatedly expressed its concern about persons secretly detained and has requested access to them. It welcomes the decision by the US government to notify it of all detainees held by the United States in any armed conflict and to provide it with timely access to them. The ICRC firmly believes that no matter how legitimate the grounds for detaining someone, there exists no right to conceal the person's whereabouts. The ICRC believes that any type of secret detention is contrary to a range of different international law provisions.
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 practice of visiting combatants captured in international armed conflicts was 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 international community has given the ICRC a mandate, under the 1949 Geneva Conventions and their Additional Protocols, to regularly assess the conditions of detention and the treatment of detainees in conflict situations around the world. 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. The US authorities are responsible for ensuring that detainees at Bagram, Guantanamo and Charleston are treated in accordance with international humanitarian law and other applicable bodies of law.
The ICRC's visits to the Bagram Theater Internment Facility and Guantanamo Bay Naval Station are a continuation of the work the organization began carrying out in places of detention in Afghanistan in 2001.
To ensure that its analysis is as complete and unbiased as possible, the ICRC follows a set of rules when visiting detainees, regardless of the circumstances. The authorities must agree to these procedures for the visits to take place.
ICRC detention visits are usually carried out by a team of specialize d delegates, accompanied by interpreters and medical personnel when appropriate. The organization follows the same standard working procedures wherever it visits detainees. These include the following points:
ICRC delegates must be able to speak in total privacy with each and every detainee of their choice.
ICRC delegates must have access to all cells where detainees are held and also to other facilities such as kitchens, showers, infirmaries and punishment cells.
The ICRC must be allowed to repeat its visits as frequently as it chooses.
The ICRC registers detainees falling within its area of concern individually, so as to be able to monitor the situation of each person as long as he remains in captivity.
In confidential discussions with the authorities before and after each visit, delegates raise concerns and make recommendations where appropriate.
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 US 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 Societie s 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 facilitated the exchange of over 44,000 Red Cross messages between Guantanamo detainees and their families, and over 86,000 Red Cross messages between US-held detainees in Afghanistan and their loved ones.
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. Over 220 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.
Since January 2008, prisoners at Bagram Theater Internment Facility have been able to communicate with their relatives by means of a video call system. 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 at February 2009, over 2,000 video calls had been placed from Bagram Theater Internment Facility.
Since September 2008, families have been allowed to meet their detained relatives face-to-face at Bagram Theater Internment Facility 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 100 have taken place so far. As in the case of video calls, the ICRC provides financial support for travel expenses in order to enable poor families from remote areas in Afghanistan to participate in the programme.
While the ICRC believes that nothing can replace a face-to-face meeting between family members, it views the establishment of phone links at Guantanamo as a positive development.
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 of persecution following transfer. The ICRC conveys any such concerns to the detaining authorities and makes 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 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 at Guantanamo or Bagram, it is the US authorities who bear primary responsibility for ensuring that this rule is upheld and for implementing the necessary procedures.
The ICRC endeavours to monitor detainees transferred from Guantanamo and Bagram 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.
ICRC delegates are often present when detainees are transferred or released. If necessary, the delegates provide assistance to enable released detainees to return to their families.
Dialogue with US authoritiesThe ICRC addresses detention-related issues with the US authorities primarily through direct and confidential dialogue. The ICRC regularly discusses its findings concerning Bagram, Guantanamo and Charleston 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.
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 Bagram, Guantanamo and Charleston 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 it 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 .