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21. Statement by Andre Surena at a hearing of the Inter-American Commission on Human Rights on issues relating to prisoners detained at Guantanamo Bay, Cuba (October 20, 2003)


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September 22, 2003

Request of the Inter-American Commission on Human Rights

For a hearing on its Request for Precautionary Measures Relating to Detainees in Guantanamo Bay, Cuba

Hearing Date: 20 October 2003, 3:00PM

STATEMENT OF THE DELEGATION OF THE UNITED STATES OF AMERICA

 

Mr. Chairman,

Thank you for this opportunity to appear before the Commission on this matter.

My name is Andre Surena, and I am a member of the US Delegation.

The United States Government was notified by the Commission of the convocation of this hearing by a letter from the Commission dated 22 September 2003. While the Commission advised that the purpose of the hearing would be to "address issues of precautionary measures," the Government of the United States was given no further information about the content of this hearing.

As we have now heard, petitioners have presented today an array of factual allegations and legal theories for which the Government of the United States was not given notice before this hearing. Accordingly, my Delegation is not in a position to address the factual allegations. To the extent that the legal theories restate prior concepts that the Government of the United States has addressed, my Delegation takes this opportunity to restate the position of the Government of the United States.

I recall that, by letter dated March 12, 2002, the Commission requested that the United States apply precautionary measures with respect to individuals held at the US Naval Station in Guantanamo Bay, Cuba, who were captured in connection with a military operation against the Taliban and al Qaida and then transported by the United States to Guantanamo beginning on or about January 11, 2002 ("detainees"). Specifically, the Commission requested 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. . . . in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights."

In its response of April 11, 2002, the United States respectfully submitted that the Commission acted without basis in fact or law in requesting precautionary measures of the United States. Specifically, the United States made three main points:

First - that the Commission lacked the jurisdictional competence to apply international humanitarian law, including the 1949 Geneva Convention on prisoners of war, as well as customary international humanitarian law;

Second - that, even if the Commission did possess the requisite jurisdictional competence, precautionary measures in this case were neither necessary nor appropriate; and

Third - that the Commission did not have authority over non-States Parties to the American Convention on Human Rights to request precautionary measures, as it has done in this case.

For these reasons, the United States respectfully asked the Commission to rescind its request for precautionary measures. Instead, after a further exchange of observations by Petitioners and the United States, by letter dated July 23, 2002 the Commission advised the United States of its decision to maintain its request for precautionary measures. The United States regretted this erroneous decision by the Commission.

In light of the Commission's continued declination to declare this matter inadmissible, my Delegation offers the following supplemental comments:

As noted earlier, the Commission lacks jurisdiction over matters relating to the laws and customs of war. The laws and customs of war govern the conduct of armed conflict. Petitioners ignore this crucial juridical context, suggesting that the detainees are akin to common criminals whose cases are entitled to judicial review, or who enjoy the right to resort to the courts. Petitioners, however, present no legal support for the novel proposition that detained enemy combatants have any right under the law of armed conflict to have their detention reviewed in a human rights forum or to enjoy access to the courts of the Detaining Power to challenge their detention during the course of the ongoing conflict.

The law of armed conflict is the lex specialis governing the status and treatment of persons detained during armed conflict. To be sure, many of the principles of humane treatment found in the law of armed conflict find similar expression in human rights law. And some of the principles of the law of armed conflict may be explicated by analogy or by reference to human rights principles. However, similarity of principles in certain respects does not mean an identity of principles, doctrine, or jurisprudence. Professor Theodor Meron, currently the President of the International Criminal Tribunal for the Former Yugoslavia in The Hague, has written:

Not surprisingly, it has become common in some quarters to conflate human rights and the law of war/international humanitarian law. Nevertheless, despite the growing convergence of various protective trends, significant differences remain. Unlike human rights law, the law of war ...permits certain deprivations of personal freedom without convictions in a court of law.

The consequences of conflating the two bodies of law would be dramatic and unprecedented. For instance, application of principles developed in the context of human rights law would allow all enemy combatants detained in armed conflict to have access to courts to challenge their detention, a result directly at odds with well-settled law of war that would throw the centuries-old, unchallenged practice of detaining enemy combatants into complete disarray. As Professor Meron concludes his introduction to the trends at the heart of international humanitarian law, "[t]he two systems, human rights and humanitarian norms, are thus distinct...."

On behalf of the United States, my Delegation reiterates the foregoing points and submits that the Commission should dismiss the petition underlying its request for precautionary measures.



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