Deprived of Liberty

Precautionary Measures regarding Guantanamo


PM 259/02 - Persons detained by the United States in Guantanamo Bay

On March 12, 2002 the Commission authorized precautionary measures in favor of detainees being held by the United States at Guantanamo Bay, Cuba. According to the petition requesting the measures, approximately 254 detainees were being held by the United States at its Naval Station in Guantanamo Bay, Cuba, in a facility known as "Camp X­-Ray." The request indicated that these detainees were transported by the United States to Guantanamo Bay beginning on or about January 11, 2002 following their capture in Afghanistan in connection with a military operation led by the United States against the former Taliban regime in that country and an organization known as Al Qaeda. The request also claimed that the detainees at Guantanamo Bay were at risk of irreparable harm because the United States refused to treat the detainees as prisoners of war until a competent tribunal determined otherwise in accordance with the Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, because the detainees had been held arbitrarily, incommunicado and for a prolonged period of time and had been interrogated without access to legal counsel, and because certain detainees were at risk of trial and possible death sentences before military commissions that failed to comply with established principles of international law. After deliberating upon the request during its 114th regular period of sessions, the Commission decided to request that the United States take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. As explained in its March 12, 2002 communication to the State, the Commission's decision was based upon, inter alia, its finding that doubts existed as to the legal status of the detainees, including the question of whether and to what extent the Third Geneva Convention or other provisions of international humanitarian law applied to some or all of the detainees and what implications this may have for their international human rights protections, and that absent clarification of the legal status of the detainees, the Commission considered that the rights and protections to which they may be entitled under international or domestic law could not be said to be the subject of effective legal protection by the State. Consequently, without prejudging the possible application of international humanitarian law to the detainees at Guantanamo Bay, the Commission considered that precautionary measures were both appropriate and necessary in the circumstances, in order to ensure that the legal status of each of the detainees was clarified and that they would be afforded the legal protections commensurate with that status. The Commission also asked for information from the State within 30 days on compliance with the Commission's measures and thereafter on a periodic basis. In communications dated April 11, 2002 and July 15, 2002 the State provided the Commission with information and arguments in which it disputed the Commission's jurisdiction to adopt the precautionary measures, and the Petitioners responded to the State's April 11, 2002 observations in a communication dated May 13, 2002. Upon considering these additional communications, in notes to the parties dated July 23, 2002, the Commission informed the State and the Petitioners that it had decided to maintain the precautionary measures requested in its March 12, 2002 communication to the United States and to reiterate its request for information concerning the measures taken to implement the Commission's request. The Commission also expressed concern with respect to additional information provided by the Petitioners indicating that the manner in which certain detainees at Guantanamo Bay were captured raised reasonable doubts concerning whether they belong to the enemy's armed forces or related groups. These detainees were alleged to include six Algerian citizens arrested by U.S. authorities in Bosnia and ten Kuwaiti nationals arrested in Pakistan. The Commission indicated that without more, this information raised further serious concerns regarding the legal status of each of the detainees at Guantanamo Bay and the international rights and protections to which they may have been entitled. Further, on October 16, 2002 during its 116th regular period of sessions, the Commission convened a hearing on the precautionary measures at the request of the Petitioners. Representatives of the Petitioners and the State appeared before the Commission, provided written and oral arguments concerning the measures, and answered questions posed by Commission members. The Commission did not subsequently receive any information indicating that its request for precautionary measures had been complied with by the State.

Extension of PM 259/02 (2005)

On October 28, 2005, the Commission decided to extend the scope of MC 259/02. Through this extension, the Commission required the United States to adopt the necessary measures to thoroughly and impartially investigate, and to prosecute and punish all instances of torture and other ill-treatment that could have been perpetrated against detainees at Guantánamo Bay, either through interrogation methods or not. It also asked the United States to ensure that they respect the ban on using any statement obtained under torture in any legal proceeding, with the exception of any proceedings against the person accused of torture. Additionally, the Commission asked the United States to adopt the necessary measures to ensure that any detainee who could face the possibility of torture or other cruel, inhuman and degrading treatment if transferred, removed or expelled from Guantanamo Bay, access adequate, individualized study of their circumstances through a fair and transparent process before a competent, independent and impartial decision body. In case there is substantial basis for believing that the person would be in danger of being subjected to torture or other ill-treatment, the State must ensure that the detainees are not transferred or removed, and that diplomatic assurances are not used to avoid the obligation of non-refoulement of the State

Extension of PM 259/13 (2013)

On July 23, 2013, the Inter-American Commission on Human Rights extended, on its own initiative, the scope of the precautionary measures in favor of the detainees held by the United States at the Naval Station in Guantanamo Bay, in order to require the closure of that detention facility. The extension was based on the failure of the United States to comply with the precautionary measures already in force in favor of the detainees since 2002, the persistence of situations of prolonged and indefinite detention, and allegations of widespread abuse and mistreatment, including unnecessary and humiliating searches, the force feeding of detainees who have chose to participate in a hunger strike, and the increasing segregation and isolation of detainees. In addition, the information received by the Commission indicates the response of the authorities to the hunger strike has included forced feeding, unnecessary and humiliating searches, and the increased isolation of the detainees. Given these reports, the Commission requested specific information from the US Government on April 19, 2013, and reiterated that request on June 11, 2013. The Commission notes the Government’s submission of July 11, 2013, but observes that it fails to provide detailed information in response to the specific questions posed. The Commission calls the Government’s attention to the international standards that require respect for personal autonomy and dignity. Taking into account the human rights obligations of the United States as a Member State of the OAS, and given the ongoing risk of irreparable harm to the rights of detainees that is aggravated with the passage of time, the Inter-American Commission has decided to extend the scope of these precautionary measures and require the Government of the United States to proceed to immediately close the detention facilities at the Naval Station at Guantanamo Bay; to transfer the detainees to home or third countries in observance of human rights guarantees, principally the obligation of non-refoulement; to release those who have already been cleared for transfer should be expedited; and to house in appropriate conditions and accord applicable due process rights to any detainees subject to trial.

MC 8/06 - Omar Khadr, United States

44. On March 21, 2006, the IACHR granted precautionary measures in favor of Omar Khadar, a Canadian citizen aged 19 who was detained in Guantánamo. The information received during a hearing held during the 124th regular session of the IACHR states that the beneficiary is on trial before a military commission in Guantánamo for a crime allegedly committed in Afghanistan when he was 15 years old, and that during his detention and interrogation by military personnel he was denied medical attention; his feet and hands were handcuffed for long periods of time, and he was kept in a cell with fierce dogs; he was threatened with sexual abuse; and his head was covered with a plastic bag. The petitioners allege that the statements taken from him under these circumstances may be admitted as evidence and used against him. During the hearing, the State indicated that the military court could admit all reasonable evidence without clarifying whether statements obtained by torture or cruel, inhumane, or degrading treatment may be used in the trial. The Commission requested that the State, inter alia, adopt the measures necessary to ensure that the beneficiary is not subjected to torture or cruel, inhumane, or degrading treatment and to protect his right to physical, mental, and moral integrity, including measures to prevent him being kept incommunicado for long periods or subjected to forms of interrogation that infringe international standards of humane treatment. The Commission also requested that the State respect the prohibition on the use of any statement obtained by means of torture or cruel, inhumane, or degrading treatment against the beneficiary, and investigate the events and bring to justice those responsible, including those implicated when the doctrine of “management accountability” is applied.

PM 211/08 - Djamel Ameziane, United States

On August 20, 2008, the IACHR granted the request for precautionary measures for Mr. Djamel Ameziane. The request for precautionary measures alleges that Mr. Ameziane was detained by United States agents in Kandahar, Afghanistan in January 2007 and taken to the United States Naval Base at Guantánamo. According to the information received by the Commission, Mr. Ameziane was allegedly tortured and subjected to cruel, inhumane and degrading treatment during his incarceration. The request also alleges that he was in danger of being deported to his native country, Algeria, where he might be subjected to cruel, inhumane and degrading treatment. The Commission asked the United States to immediately take the measures necessary to ensure that Mr. Ameziane is not subject to torture or to cruel, inhumane or degrading treatment while in its custody and to make certain that he is not deported to any country where he might be subjected to torture or other mistreatment. The Commission continues to monitor the situation.