ORGANIZATION OF AMERICAN STATES
ADDITIONAL RESPONSE OF THE UNITED STATES TO REQUEST FOR PRECAUTIONARY MEASURES- DETAINEES IN GUANTANAMO BAY, CUBA
JULY 15, 2002
TABLE OF CONTENTS
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 3
I. THE UNCHALLENGED STATE PRACTICE OF DETAINING ENEMY COMBATANTS IN TIME OF ARMED CONFLICT IS NOT SUBJECT
TO REVIEW BY THE COMMISSION. . . . . . . . . . . . 3
A. The Laws of Armed Conflict and Human Rights are Distinct Bodies of Law. . . . . . . . . . . . 3
B. The Facts Underlying the Detention of the Enemy Combatants at Guantanamo are Central to Understanding of the Limited Jurisdiction of the Commission in this Case . . . . . . . . . . . 6
C. The Commission Does Not Have the Requisite Jurisdictional Competence to Apply International Humanitarian Law . . . . . . . . . . . . . . . 9
II. THE COMMISSION LACKS JURISDICTION TO ISSUE PRECAUTIONARY MEASURES IN THIS CASE . . . . . . . .16
A. The Commission Lacks a Mandate to Request the United States to Implement Precautionary
Measures . . . . . . . . . . . . . . . . . . .16
B. Even if the Commission Had Authority to Issue Precautionary Measures, Such Measures Would Not Be Binding . . . . . . . . . . . . . . . . . .19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . .30
A. The Laws of Armed Conflict and Human Rights are Distinct Bodies of Law.
The detention of enemy combatants in Guantanamo arises out of the war against terrorism. Yet in presenting their case, the Petitioners ignore this crucial context, suggesting that the detainees are akin to common criminals whose cases are entitled to "judicial review," Petitioners' Observations, at 21, or who enjoy the right "to resort to the courts to ensure respect for their legal rights," Petitioners Observations, at 15. Petitioners present no legal support for the position that detained enemy combatants have any right under the law of armed conflict to have their detention reviewed by the Commission or to enjoy access to the courts of the Detaining Power to challenge their detention.
Put simply, the Commission's jurisdiction does not include the application of the law of armed conflict, 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. Yet the Petitioners confuse an overlap of principles with an overlap of jurisdiction. To say that both human rights law and law of armed conflict draw on similar principles of treatment is not to say that bodies with jurisdiction over the one law have jurisdiction over the other.
The Petitioners' confusion on this score is most evident when arguing that "[t]he United States improperly segregates the doctrinal bodies of international human rights law and international humanitarian law." Petitioners' Observations, at 13. Petitioners argue that these bodies of law are "complimentary [sic] and overlapping," id., and they assert boldly that the U.S. position is "uniformly rejected by human rights experts." Id., at 14 (emphasis added). Yet even the leading expert cited by Petitioners, in the very article cited in the Petitioners' Observations, presents a starkly different picture of the relationship between the two areas of law than the one suggested by Petitioners. In that article, Professor Theodor Meron, one of the world's leading scholars of the laws of armed conflict and human rights and currently a judge on the International Criminal Tribunal for the Former Yugoslavia in The Hague, writes:
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 allows, or at least tolerates, the killing and wounding of innocent human beings not directly participating in an armed conflict, such as civilian victims of lawful collateral damage. It also permits certain deprivations of personal freedom without convictions in a court of law.
The consequences of conflating the two bodies of law would be startling. For instance, application of human rights norms as suggested by Petitioners 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...."
B. The Facts Underlying the Detention of the Enemy Combatants at Guantanamo are Central to Understanding the Limited Jurisdiction of the Commission in this Case.
A summary of the facts that have necessitated the detention of the enemy combatants at Guantanamo illustrates the gap between the Petitioners' view of the authority of the Commission and the reality of the Commission's human rights law jurisdiction.
On September 11, 2001, the terrorist forces with which the enemy combatants at Guantanamo associate themselves committed an unprecedented and horrific armed attack upon the United States. This coordinated attack left thousands dead in New York City, Pennsylvania and the Pentagon near Washington, D.C. The attacks, organized and calculated to cause massive numbers of deaths and serious injuries to civilians and destruction to civilian property, were of such scale and effects that numerous States, international and regional organizations, including the United Nations, NATO and the OAS, immediately condemned them in the strongest possible terms. See U.S. Response, at 8-9.
The terrorist attacks of September 11 were not ordinary criminal acts. They were carefully coordinated and of unprecedented scale. They were carried out by shadowy forces in several countries and continents that exploited the culture of freedom to carry out their attacks. They were conceived, directed and protected in the safe harbor of Taliban-run areas of Afghanistan.
The international community has clearly recognized the right of the United States and allied forces to resort to armed force in self-defense in response to these attacks. For instance, the United Nations explicitly recognized the "inherent right of individual and collective self-defence" immediately following September 11. It is in this context that NATO and others recognized that the September 11 attacks constituted an "armed attack," a conclusion inherent in the UN Security Council's recognition of the right of self-defense.
It is in this context that President Bush, on October 7, 2001, ordered U.S. armed forces to initiate military action in self-defense against the terrorists and their supporters in Afghanistan. The actions, which continue to this day, are "designed to prevent and deter further attacks on the United States." During the course of hostilities, the U.S. military and allied military forces have captured or secured the surrender of thousands of individuals fighting as part of the al Qaida terrorist network or in support of it. The U.S. military has taken control of many such persons and transferred some of them to Guantanamo.
The U.S. Response described the legal status of the detainees at Guantanamo. See Response, at 10-14. In short, "neither the Taliban nor al-Qaida detainees are entitled to POW status." The detainees are not POWs because they do not meet the criteria applicable to lawful combatants. The Petitioners claim that "international humanitarian law currently does not recognize the status of 'unlawful combatant.'" Petitioners' Observations, at 16. Yet the United States has demonstrated that the status of unlawful combatant not only has a firm basis in international law, but is the appropriate characterization of the detainees at Guantanamo. The Petitioners' chosen paradigm of human rights law is inapplicable to the circumstances of armed conflict in which the detentions at Guantanamo arise.
As described in detail in the U.S. Response and in the sections above, the United States believes that the Commission lacks the jurisdictional competence to apply the law of armed conflict. Although the Petitioners phrase their argument in multiple ways, the essence of Petitioners' argument is that the jurisprudence of the Inter-American system allows for humanitarian law principles and treaties to be taken into account as elements for the interpretation of the American Convention by the Commission and the Court. Petitioners' Observations, at 6-9. In making this argument, however, Petitioners ignore (1) the difference between the scope of authority of the Court and the Commission and (2) the difference between States Parties to the American Convention and non-States Parties to the Convention.
The American Convention specifically authorizes the Court to examine other human rights treaties, but nothing in the American Declaration or the OAS Charter provides the Commission with similar authority vis-�-vis non-States Parties to the Convention. Article 64(1) of the Convention provides in relevant part that:
The Member States of the Organization may consult the court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. [Emphasis Added].
The Court construed that provision as permitting it to render advisory opinions interpreting other human rights treaties regardless of their extra-hemispheric origin and the fact that non-American States may become parties to them. But in the Las Palmeras Case, the Court refused to uphold the application of humanitarian law by the Commission in finding a violation by Colombia of the Geneva Conventions. Although the Court later reaffirmed that proposition in the Bamaca Valasquez Case, it decided that it would have the ability to "observe":
that certain acts or omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the Geneva Conventions and, in particular, common Article 3.
But in stating this, the Court specifically grounded its ability to do so on "treaties that they do have competence to apply."
Petitioners are in error in interpreting these cases as supportive of the proposition that the Court has recognized a power in the Commission to interpret and apply a humanitarian law treaty if it deems it pertinent to its human rights responsibilities. First, it is essential to bear in mind that the Court was construing a provision in the American Convention on Human Rights in all the cases - not the American Declaration. Second, there is no analog to Article 64 in the American Declaration; nor is there any other textual reference in the Declaration to "other treaties." It therefore follows that, at best, whatever the import of the Court's opinions, they only apply to parties to the American Convention. Third, Article 64 provides authority for the Court -- not the Commission -- to be consulted regarding interpretation of "other treaties" concerning the protection of human rights. The Court's decisions did not expand the powers of the Commission, under the American Declaration, to interpret and apply law of war instruments in individual cases.
European bodies for the protection of human rights have also been restrained in looking at questions of detention during armed conflict. For example, the European Commission of Human Rights considered the detention of POWs by the Turkish army in the Cyprus case. It took "account of the fact that both Cyprus and Turkey are Parties to the [Third] Geneva Convention of 12 August 1949, relative to the treatment of prisoners of war, and that, in connection with the events in the summer of 1974, Turkey in particular assured the International Committee of the Red Cross (ICRC) of its intention to apply the Geneva Convention and its willingness to grant all necessary facilities for humanitarian action...."18 The Commission therefore did not find it necessary to "examine the question of a breach of Article 5 of the European Convention with regard to persons
accorded the status of prisoners of war." A more recent European human rights treaty has been more explicit in their rejection of a mandate in situations covered by the laws of war. Article 17(3) of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides that the Committee "shall not visit places which representatives of delegates of Protecting Powers of the International Committee of the Red Cross effectively visit on a regular basis by virtue of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977 thereto."
While it may be true that the UN bodies, the European Commission, the European Torture Committee, and this Commission do not have identical mandates, it is telling that their mandates were obviously framed to limit those human rights bodies from issuing authoritative decisions in the area of law of war, which have been traditionally governed by instruments such as the Geneva Conventions. This comparative international practice provides further grounds for concluding that the authority to address issues regarding the interpretation of the law of war cannot be regarded as incidental or appropriate to a human rights body's consideration of a complaint.
The Petitioners' reliance on the Commission's earlier jurisprudence is also misplaced, in particular its contention that the "most relevant" precedent "both factually and legally" of the Commission is Coard. Petitioners' Observations, at 9, citing Coard et al. v. United States, Case 10.951, Inter-Am. C.H.R. Report No. 109/99 (1999). That decision demonstrates all too clearly the fundamental limitations and contradictions inherent in the Commission's statutory competence when it seeks to apply strictly the human rights norms of the American Declaration to situations, such as Grenada, in which the Commission is asked to review the actions taken by the military forces of a State in a situation involving international armed conflict. The practical results of the Coard decision turn logic on its head. The Coard decision, in effect, found that the U.S. violated the American Declaration because it failed to take the Petitioners before Grenadian courts to determine the validity of their detention, even when the courts were not functioning. The decision also faulted the United States for failing to release Petitioners back into Grenadian society, although they clearly posed a danger (subsequently convicted of murder). Even if the Commission were tempted to rely upon the Coard reasoning, however, it is readily distinguishable because the Commission found that "the [P]etitioners in Coard were held by U.S. forces both during and after the cessation of hostilities." Petitioners' Observations, at 11-12, citing Coard, para 57. In the present case, the detainees are being held in an armed conflict that is ongoing.
II. THE COMMISSION LACKS JURISDICTION TO ISSUE PRECAUTIONARY MEASURES IN THIS CASE.
This Additional Response has explained the ways in which the Petitioners misconstrue the relationship between the laws of human rights and armed conflict in an attempt to shoehorn this case into the jurisdiction of the Commission. This section addresses Petitioners' equally unsupportable claims about the nature of the Commission's jurisdiction to issue precautionary measures in cases such as this.
A. The Commission Lacks a Mandate to Request the United States to Implement Precautionary Measures.
Petitioners fail to demonstrate that the Commission's organic documents provide it with the authority to request a non State-Party to the American Convention to implement precautionary measures. The Petitioners point primarily to the Commission's Rules of Procedure and its prior practice as evidence of its mandate, but neither its practice nor its Rules establish the Commission's mandate. Its practice is indicative of the Commission's own view of the scope of its mandate; its Rules are adopted only by the Commission itself, not States Parties to either of the constituent documents.
In fact, the Commission's mandate is established by the OAS Charter and the American Convention on Human Rights. While the OAS Charter does not refer to precautionary measures, Article 63 of the American Convention refers to the Court's ability to adopt "provisional measures as it deems pertinent...." The Statute of the Inter-American Commission, adopted pursuant to Article 39 of the American Convention and having been approved by the OAS General Assembly, provides a subsidiary source for determining the Commission's mandate. Article 19 of that Statute builds upon the mandate set forth in Article 63 of the Convention, by authorizing the Commission to request the Inter-American Court of Human Rights for "provisional measures as it considers appropriate in serious and urgent cases...." But none of these organic documents - the OAS Charter, the American Convention or the Commission Statute - allude to any power of the Commission to act on its own accord to request precautionary measures, much less to issue binding precautionary measures. Standing alone, without basis in the Commission's organic documents, Article 25 of the Commission's Rules of Procedure provides no mandate for the Commission to request precautionary measures against the United States.
B. Even if the Commission Had Authority to Issue Precautionary Measures, Such Measures Would Not Be Binding.
Even if the Commission possesses the authority to issue precautionary measures against the United States, such measures, at most, amount to non-binding recommendations. The non-binding character of such measures is grounded in the Statute of the Commission, the practice of other human rights bodies, and the writings of jurists. It is also consistent with the jurisprudence of the Inter-American Court.
The Commission has authority to offer recommendations to all OAS members, and has the enhanced power to request the Court to issue provisional measures against Convention States-Parties. Because Court-ordered measures are generally stronger sanctions than mere recommendations, in order to comply with the meaning of the text on its face, the authority of the Commission to make recommendations under Article 20 must be less powerful than such measures; that is, it must be non-binding. To find otherwise would conflict with the facial intent to preserve for the Court the authority to issue provisional measures against States-Parties to the American Convention.
Petitioners cite in support of the binding nature of the request of the Commission for precautionary measures, the Commission's assertion that "international tribunals routinely issue precautionary measures or their equivalent in urgent matters, including the Inter-American Court, the International Court of Justice, the European Court of Human Rights and the UN Human Rights Committee." But that observation is misleading. The first three of the bodies are Courts created by treaties - in which the Courts are given specific powers by the States Parties. While the character of provisional measures in each of the three courts may be unclear, the Courts' statutes provide for binding final judgments. The States Parties that have accepted the jurisdiction of each of these Courts, did so, aware that final judgments of each of these Courts are binding. That situation is very different from the situation of the Commission vis-�-vis the United States or a State not a party to the American Convention.
As to the UN Human Rights Committee, established pursuant to the International Covenant on Civil and Political Rights, its interim measures are also non-binding.31 Under Article 5.4 of the Optional Protocol, the Committee does not decide on an individual's communication. Instead, "[t]he Committee shall forward its views to the State Party concerned and to the individual." Rule 86 of the Committee's Rules of Procedure provides similarly that
The Committee may prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation.
Thus, the Committee may only request that a State take interim measures, and the State is not legally bound to comply.33 The Committee itself has also said that its "decisions" are not binding:
It is useful to note that the Committee is neither a court nor a body with a quasi-judicial mandate, like the organs created under another international Human Rights instrument, the European Convention on Human Rights (i.e., the European Commission of Human Rights and the European Court of Human Rights). Still the Committee applies the provisions of the Covenant and of the Optional Protocol in a judicial spirit and, performs functions similar to those of the European Commission of Human Rights, in as much as the consideration of applications from individuals is concerned. Its decision on the merits (of a communication) are, in principle, comparable to the reports of the European Commission, non-binding recommendations. The two systems differ, however, in that the Optional Protocol does not provide explicitly for friendly settlement between the parties, and, more importantly, in that the Committee has no power to hand down binding decision as the European Court of Human Rights. States Parties to the Optional Protocol endeavour to observe the Committee's views, but in case of non-compliance the Optional Protocol does not provide for an enforcement mechanism or for sanctions."33
Finally, Courts, including the European Court of Human Rights, the Privy Council, and those of Canada, have also treated the Committee's decisions as non-binding or unenforceable.34 Simply put, there is no support for the proposition that the Human Rights Committee can issue binding precautionary measures.35
A more relevant body of jurisprudence for purposes of analyzing the Commission's mandate, which is not mentioned by the Petitioners, is the former European Commission on Human Rights. For many years, it fulfilled a role in Europe similar to that played by the American Commission in the Americas - in that the Commission operated in tandem with the Court of the regional system. But the European Court of Human Rights ("European Court") has held under similar circumstances that, absent a specific provision in the European Convention on Human Rights ("European Convention"), the European Commission did not have the power to order legally binding interim measures. In the Case of Cruz Varas and Others v. Sweden, Eur. Ct. H.R. Ser. A. No. 46/1990/237/307, at 34-35 (1991). Specifically, in the Cruz Varas Case, the European Court addressed the binding nature of a European Commission Rule of Procedure that purported to authorize the Commission to request States to carry out provisional measures. Id. Much like here, there was no statutory authority in the European system to provide for the adoption of provisional measures; the only authority lay in the Commission's self-created Rules of Procedure.
The Court concluded that the European Commission's request for Sweden to take interim measures not to expel a claimant was not legally binding. Id., at 38. In the absence of a specific provision in the European Convention, the Court held, the European Commission had no power to order interim measures. Id.
The writings of scholars also fail to support the proposition that the Commission's precautionary measures are binding.37 For example, in a seminal 1994 article on interim measures in the Inter-American Court, Judge Buergenthal38 described in some detail the negotiating history of the American Convention's article on provisional measures and advanced his arguments for why provisional measures of the Court should be considered to be binding orders.39 In his detailed analysis, he did not once refer to the possibility of the Commission having the ability to request precautionary measures or binding interim measures - an omission that would be astonishing if they were binding. Clearly, Judge Buergenthal in 1994, never even considered the possibility that a few years later, the Commission would be considering that its precautionary measures were binding.41
An examination of the Inter-American Court's jurisprudence also does not support the contention that precautionary measures should be treated as binding vis-�-vis non-States Parties to the Convention. Specifically, in the Loayza Tamayo case, the Court stated:
The Court has previously stated that, in accordance with the stipulation regarding interpretation contained in Article 31(1) of the Vienna Convention on the Law of Treaties, the term 'recommendations' used by the American Convention, should be interpreted to conform to its ordinary meaning.42 However, in accordance with the principle of good faith, embodied in the aforesaid Article 31(1) of the Vienna Convention, if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply [sic] with the recommendations of a protection organ of the Organization of American States....43 In other words, the Court held that recommendations were recommendations, but that States Parties to the American Convention had "an obligation" to make every effort to carry out the recommendations of the Commission - a far cry from holding that the recommendations bind non-States Parties.
Finally, the Petitioner's argue that public statements of the United States from 1992 and 1999 contradict the position of the United States that the Commission does not have the power to request binding precautionary measures. The statements they cite, however, are completely consistent with the position of the United States. The United States does stand ready to consider the Commission's non-binding recommendations. It does support a human rights process for the Americas in which it participates. Nonetheless, the United States has never taken the position that Commission's recommendations are binding vis-�-vis other States in the OAS.
Indeed, the United States and the other States in the Americas have been in complete agreement at the last Summit of the Americas with respect to the status of the Commission's recommendations. In the Quebec Summit of Americas Declaration, leaders of the Americas committed their countries to considering an adequate increase in resources for the activities of the Commission and the Court, "in order to improve human rights mechanisms and promote observance of the recommendations of the Commission and compliance with the judgments of the Court."44 In the Summit's Plan of Action, the same leaders committed to promoting concrete measures to "strengthen and improve the inter-American human rights system, ... focusing on ... complying with the decisions of the Inter-American Court and following-up on the recommendations of the Commission."45 The language of the Summit is not language of States that consider the Commission's recommendations to be binding - indeed, the language reflects the opposite.
It is clear that the leaders of the Summit States consider the Commission extremely important. But it is also clear that these leaders consider the Commission's authority to be of a non-binding nature.46 In sum, the Commission's organic documents neither give it the authority to issue precautionary measures, nor provide the Commission with the power to issue binding orders vis-�-vis non-States Parties to the American Convention.47