BBC World Service
I have a right to...



Article 10: Right to fair public hearing by independent tribunal


Case Study: THE PRISONERS OF GUANTANAMO BAY
  • Following September 11 and the subsequent military campaign in Afghanistan in late 2001, the United States imprisoned around 600 men from at least 43 different countries in a camp in a US naval base in Guantanamo Bay, Cuba. The aim was to interrogate them about their suspected involvement in the al-Qaeda terrorist network.
  • The United States government has labelled these men 'unlawful enemy combatants' when they were first apprehended. 35 of them were released in June 2003. Another five were handed over to British authorities in March 2004 and subsequently released. Others have been 'transferred for continued detention' to their home countries, including seven Russians, released without trial four months after their transfer, and four Frenchmen, still being held on suspicion of terrorist links. The rest at least 540 are still being held indefinitely in military custody at Guantanamo. No formal criminal charge has been brought against them.
  • The Pentagon says that of the 188 who have been repatriated, five have 'rejoined the fight.' Abdul Ghaffar, a Taleban militant killed fighting in Afghanistan in late September 2004, is known to have spent eight months at the prison.
  • Numerous governments and organisations have condemned the US' actions in regards to the prisoners. They have criticised the physical conditions of the camp and the staff's treatment of the prisoners. In 2003, British Law Lord Lord Steyn said the prisoners were being held in "utter lawnessless." Some of those released have said they tried to commit suicide. Others have claimed they were tortured, with Afghan ex-detainee Mohammed Khan saying "they tortured our bodies, they tortured our minds, they tortured our ideas and our [Muslim] religion." The US denies it uses torture.
  • These men may be directly or indirectly responsible for September 11, one of the worst terrorist atrocities in history. However, Article 10 of the UDHR requires the US proves its responsibility for this act through a fair public hearing by an independent tribunal. The US is yet to try the prisoners. The legality of holding them without trial is currently under review, with the US Supreme Court having ruled that those held can challenge their detention. As a result, detainees are starting to have their cases re-examined by a military tribunal.

Neither Prisoners of War nor Criminals

US President George W Bush has proposed the prisoners in Guantanamo Bay are tried in a military tribunal.

There are a number of differences between these tribunals and civilian courts – convictions need only be by a two-thirds majority, not unanimous; defendents are not guaranteed the right to appeal against their conviction; and the tribunals can be held in secret.

However, US Department of Defense guidelines for the War On Terror do specify that defendants have a right to a lawyer and to know the charges against them.

Those in favour of this plan argue the tribunals are necessary in times of war. Opponents argue many of the protections of civilian courts do not apply in these tribunals.

The controversy arises because of the unique status of the prisoners - they are neither traditional prisoners of war (POWs) nor convicted criminals.

If they were recognised as POWS, then the Third Geneva Convention, which outlines the rights and protections entitled to prisoners of war, would apply.

On the other hand, if they were recognised as criminals, they would be entitled to the standard due process rights granted to ordinary citizens in the United States.

So the status and rights of these men remains controversial - there is no provision for it under international law. However, British Home Secretary David Blunkett has said none of the Britons held there are a "security threat to the British people."

Legal Outer Space

Guantanamo Bay is what one US official has called the 'legal equivalent of outer space.'

Although Guantanamo Bay is on Cuban soil, under an existing treaty, the US has controlled the base there for over 90 years.

However, when lawyers of some of the detainees filed petitions asking US federal courts to assert jurisdiction over their cases, the courts responded that US courts have no jurisdiction over non-US citizens in Guantanamo because the military base is on Cuban soil and not under US sovereignty.

Human rights organisations have demanded the Guantanamo detainees either be given the full status of POWs or put on trial.

They say that according to international humanitarian and human rights law, any dispute about the Guantanamo detainees' legal status must be determined by a 'competent tribunal,' not behind the closed doors of a military tribunal.

The Right to Counsel and Trial

The right to a fair and public trial by an independent tribunal is granted to every human being under Article 10 of the Universal Declaration of Human Rights and subsequent international human rights conventions.

However, none of the foreign nationals in US custody in Afghanistan or Guantanamo has been granted access to legal counsel.

In choosing military tribunals, the Bush administration dismissed the idea of trying the Guantanamo detainees in front of international tribunals, US federal courts, or even traditional American military courts. The President will decide who will be sent before them, as well as which evidence can be withheld from the commission and defendant.

Military tribunals have the power to convict based on hearsay, authorise indefinite detention without trial, and hand down death sentences without the right to appeal to a more independent and impartial court.

Even if defendants are acquitted by the military tribunal, the executive reserves the right to continue to detain them indefinitely.

Camp Conditions

The conditions of the detention camp at Guantanamo Bay, known as Camp X-Ray, have been the subject of international debate.

When the prisoners first arrived at the camp, widely-published photographs showed them blindfolded, chained, and manacled, prompting an international outcry about the humaneness of the camp and the staff's treatment of the men.

US Defence Secretary Donald Rumsfeld declared that the detainees would be treated humanely and within the terms of the Geneva Conventions, despite the fact that they are not POWs. In order to further quell the outcry, the US allowed the International Committee of the Red Cross to visit the camp.

Some of the 35 prisoners released in June 2003 said that while they were physically unharmed, they were driven to despair by their confinement in tiny cells and uncertainty over their fate. 10 Afghans released in September 2004 said they were wrongfully held, but not mistreated.

In late September 2004, a letter from British prisoner Moazzam Begg reached his lawyers uncensored it is believed by mistake which said he had been tortured, threatened with death and kept in solitary confinement since early 2003. He also said he had been heard other detainees being tortured, and believed this had led to the deaths of two men, which he had "partially witnessed." The UK government has said it continues to pursue complaints raised with the US authorities.

Prisoners' Protest

The prisoners at Guantanamo have found various means to protest the camp conditions.

When camp guards reportedly removed an inmate's turban while he was praying, more than 100 of the inmates launched a hunger strike.

The US Department of Defence has stated that the detainees will be held in Guantanamo until the end of the war against terrorism.