AIDE
MÉMOIRE ON THE DRAFT RESOLUTION ENTITLED “QUESTION OF ARBITRARY
DETENTIONS IN THE AREA OF THE UNITED STATES NAVAL BASE AT GUANTÁNAMO”,
PRESENTED BY CUBA TO THE 60TH SESSION OF THE HUMAN RIGHTS COMMISSION IN GENEVA
After its war in Afghanistan, the Government of the United States took the
decision to concentrate prisoner taken in the “war against terrorism”
in the territory of its Naval Base in Guantánamo, portion of the Cuba
occupied by that Government against the will of the Cuban people.
Hundreds of foreign prisoners remain arbitrarily held in that territory, and
are subjected to indescribable humiliations, are totally isolated, and without
the possibility of communicating with their families, or of having a suitable
legal defence. The charges against most of them continue to be unknown. Some,
among the very few that have been set free, have narrated the horrors of that
concentration camp, where despicable forms of torture and cruel, inhuman and
degrading treatments are carried-out.
It is widely known that one of the most abominable practices in modern times
has been forged and persists in that U.S. Base, and is characterized by massive
and flagrant violations of the human rights of hundreds of persons, disrobing
them even of their human essence.
It is known that more than 600 persons, including children, belonging to 40
nationalities and speaking 17 languages, are being maintained in a legal limb
and are held in arbitrary and inhuman conditions in this Base.
Conceptual creations such as "illegal combatants", or the institution
of legal aberrations like the so-called "military ad hoc courts",
created by the United States to justify the dehumanizing treatment of prisoners
of war, are obviously the opposite to International Humanitarian Law and the
Geneva Conventions of 1949.
The "courts" that would be imposed, would be entitled to dictate
death sentences and their decisions could not be appealed; they would lack
the slightest independence and would restrict the right of the defendants
to choose their own lawyers and have an effective defence. Evidence extracted
possibly under torture or coercion could be accepted.
The detention without charges nor judgment for an indefinite time, the imprisonment
in small cells up to 24 hours a day, the obligation to remain manacled during
the very little time of exercise allowed, the cruelty towards their relatives
caused by the uncertainty derived from the difficult situation of their loved
ones, the repeated interrogations without access to a lawyer and the possibility
that executions are carried out after unjust trials and without the right
to appeal, constitute an aberration and an insult to justice and human dignity.
The persons considered "illegal combatants", are subjected to arbitrary
military regulations that contemplate the possibility of torturing the prisoners
and depriving them of legal resources such as habeas corpus. They can be detained
without concrete charges for an indefinite time and their lawyers undergo
a number of restrictions. They do not have the option, either, to request
the presentation of witnesses. Prisoners who wish to have a defender different
from the military assigned to him, must first declare himself guilty, with
which the principle of presumption of innocence is grossly denied.
The described situations reflect flagrant violations of articles 6 and 7 of
the International Covenant on Civil and Political Rights, of which the United
States is a State Party, since 8 of June of 1992.
The struggle against terrorism cannot be carried out by means of the terror
imposed by the negation of rights and the exercise of a so-called unilateral
right to wage war.
The international community raises its voice of condemnation regarding what
is happening in that Base, turned into a warehouse of prisoners, without judgment
or charges, without lawyers and without the slightest sign of due process
of law.
The International Committee of the Red Cross (ICRC), important legal experts,
academicians, non-governmental organizations and several mechanisms of the
United Nations in the field of human rights, as well as representatives of
parliaments and many governments worldwide, have demanded the Government of
the United States to immediately clarify the legal situation of the prisoners
held in the Guantánamo Naval Base regarding international norms in
the fields of human rights and International Humanitarian Law.
The CICR, for example, has pointed out that there has been no suitable answer
to its concern with respect to some aspects of the conditions of detention
and of the treatment received by the persons held in Guantánamo. The
CICR affirms that, by means of its visits, it has been a unique witness of
the effects that uncertainty has on those held and has observed a worrisome
deterioration of the psychological conditions of many of them.
The CICR has visited all the minors detained in this base and has pointed
out that this is not a place adequate for the detention of minors. It is particularly
concerned over the fact that those young people are retained far from their
relatives and by the possible psychological effects that this experience may
have in such an important stage of their development.
On the other hand, the draft of its annual report on Human Rights in the World
in 2003 and the policy of the European Union in the field of human rights,
considered on April 2004 in the Commission of Foreign Affairs, Human Rights,
Common Security and Defence Policy of the European Parliament, points out
the following in numerals 58 and 59 on the prisoners in Guantánamo:
"58. It regrets that the U.N. Security Council has still not created
an ad hoc International Criminal Court as the most timely means to deal with
the situation of the prisoners held in Guantánamo;
59.
Requests to the U.S. authorities to immediately put an end to the present
legal limb in which the prisoners in the base of Guantánamo are since
their arrival to this facility, and that they be guaranteed immediate access
to justice in order to determine the personal situation of each prisoner,
either charging them in accordance with the norms of the Third and Fourth
Geneva Conventions and of the International Covenant on Civil and Political
Rights (in particular its articles 9 and 14), or releasing them immediately,
and to guarantee that those charged with war crimes be subjected to a fair
trial in accordance with International Law and with full respect of the international
instruments in the field of human rights ".
16
.On the other hand, the Declaration of Sanaá, adopted on 11 of April
2004 in the capital of Yemen, in the Conference that united the relatives
of those detained in the Gulf, human rights organizations, lawyers of all
the Middle and Near East and the rest of the world, activists and members
of institutions of the civil society, called on the Government of the United
States to put an end to the legal limb of all the prisoners, including those
being held in non disclosed places, and to grant full access to lawyers, doctors
and relatives and to the International Committee of the Red Cross.
17.
It also requested that all those being held are charged and judged with due
guarantees or, otherwise, released, and that it is guaranteed that the prisoners
receive a human treatment and an end be put to the return of foreign citizens
to countries in which they may be subjected to serious violations of human
rights. The conference described the conditions of imprisonment of the prisoners
in Guantánamo as pitiful, and pointed out that this situation has had
strong consequences in their communities and families, including the women
and children without a voice.
18.
The situations described constitute also violations of following articles
of the Universal Declaration of Human rights:
•
Article 3: Everyone has the right to life, liberty and security of person.
•
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
•
Article 6: Every one has the right to recognition everywhere as a person before
the law.
•
Article 8: Every one has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by
the constitution or by law.
•
Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
•
Article 10: Every one is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.
•
Article 11:
•
Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defence.
19.
The Government of the Republic of Cuba and the Cuban people, join the concerns
expressed by the international community regarding the fate of the persons
arbitrarily detained in the U.S. Naval Base in Guantánamo and urge
to the State Party to put an end to the existence of this "moral and
legal black hole".
20.
The Government of the Republic of Cuba considers that the described situations
merit that the Human Rights Commission, as the body created to safeguard the
promotion and protection of all human rights for all, to pursue the international
concern on the situation of the prisoners held in the area of the U.S. Naval
Base in Guantánamo. Thus, it has presented to the consideration of
the Commission draft L.88, entitled "Question of Arbitrary Detentions
in the Area of the U.S. Naval Base in Guantánamo".
21.
Likewise, it considers that several of the mechanisms established in the field
of human rights, by virtue of its mandates, should evaluate these situations
and report on its conclusions to the United Nations High Commissioner on Human
rights.
22.In
the view of the Government of the Republic of Cuba, the High Commissioner
should present a report on the fulfilment of the resolution to 61st session
of the Human Rights Commission.
23.
Cuba hopes that the principles of non-selectivity, objectivity and impartiality,
enshrined in the Declaration and Program of Action of Vienna, prevail in the
consideration and the voting on draft resolution L.88. For this reason, it
requests the co-sponsorship of said draft resolution by your Illustrious Government
and the vote in favor of the States members of the Human Rights Commission.
24.
The eradication of this flagrant violation of human rights and of International
Humanitarian Law cannot wait. We must avoid this serious precedent from expanding.
