DOS Cable re: Forwarding of Letters Received from United Nations Representatives

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3BFEFO 081142Z /38
P 081101Z JUL 04
FM USMISSION GENEVA
TO SECSTATE WASHDC PRIORITY 1416
INFO USMISSION USUN NEW YORK PRIORITY

UNCLAS GENEVA 001943

STATE FOR IO/SHA

E.O. 12958: N/A
TAGS: PHUM, UNHRC-1, US
SUBJECT: THREE SPECIAL RAPPORTEURS ON SIX GTMO DETAINEES:
QUESTIONS AND ALLEGATIONS

1.
On July 7, MIssion received a letter from the Special
Rapporteurs (SR) on Torture (Theo van Bowen), the
Independence of judges and lawyers (Leandro Despouy), and the
right of everyone to the enjoyment of the highest attainable
standard of physical and mental health (Paul Hunt),
requesting information on allegations concerning six
detainees at Guantanamo Bay (para 2). The letter is
addressed to Ambassador Moley and requests a reply by
September 2, 2004. A summary of the allegations was attached
to the letter as an annex (para 3).

2.
Begin Text of Letter dated July 2, 2004:

Excellency,

We have the honour to address you in our capacities as
Special Rapporteur on the independence of judges and lawyers,
Special Rapporteur on the right of everyone of the highest
attainable standard of physical and mental health and Special
Rapporteur on torture, pursuant to Commission on Human Rights
resolutions 2003/43, 2002/31 and 2001/62 respectively.

We should like to refer to Commission resolution 2003/32,

which, inter alis:

"(1) Condemns all forms of torture and other cruel, inhuman
or degrading treatment or punishment, which are and shall
remain prohibited at anytime and in any place whatsoever and
can thus never be justified, and calls upon all Governments
to implement fully the prohibition of torture and other
cruel, inhuman or degrading treatment or punishment;

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"(8) Stresses in particular that all allegations of torture
or other cruel, inhuman or degrading treatment or punishment
should be promptly and impartially examined by the competent
national authority, that those who encourage, order, tolerate
or perpetrate acts of torture must be held responsible and

severely punished, including the officials in charge of the

place of detention where the prohibited act is found to have

taken place, notes in this respect the Principles on the

Effective Investigation and Documentation of Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment

(the Istanbul Principles) annexed to Commission resolution

2000/43 of 20 April 2000 and General Assembly Resolution

55/89 of 4 December 2000 as a useful tool in efforts to

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: FRANK E SCHMELZER
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DATE/CASE ID: 10 DEC 2004 200303827 /

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combat torture, and reiterates its request to the Special

Rapporteur, in the normal course of his work, to solicit

views from Governments and non-governmental organizations;

"(14) Reminds all States that prolonged incommunicado

detention may facilitate the perpetration of torture and can

itself constitute a form of cruel, inhuman or degrading

treatment or even torture, and urges all States to respect

the safeguards concerning the liberty,.security and the

dignity of the person . . ."

We also refer your Government to the Basic Principles on the
Independence of the Judiciary, adopted by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders and endorsed by the General Assembly in its
resolutions 40/32 of 29 November 1985 and 40/146 of 13
December 1985, paragraph 5 of which states that "(E)veryone
shall have the right to be tried by ordinary courts or
tribunals using established legal procedures. Tribunals that
do not use the duly established procedures of the legal
process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals."

We further refer your Government to the Basic Principle of
the Role of Lawyers, adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of
Offenders, paragraph 8 of which states that "(a)11 arrested,
detained or imprisoned persons shall be provided with
adequate opportunities, time and facilities to be visited by
and to communicate and consult with a lawyer, without delay,
interception or censorship and in full confidentiality. Such
consultations may be within sight, but not within.the
hearing, of law enforcement officials."

It will be recalled in this regard that in paragraph 9 of its
resolution 2003/39 the Commission on Human Rights "(c)all
upon States that have military courts for trying criminal
offenders to ensure that such courts are an integral part of
the general judicial system and use the duly established
legal proceedings."

We further refer your Government to resolution 2003/28, in

which the Commission:

"(3) Calls upon States to guarantee that the right of
everyone to the enjoyment of the highest attainable standard
of physical and mental health will be exercised without
determination of any kind; (and)

(5) Calls upon States to pay special attention to the
situation of vulnerable groups, including by the adoption of
positive measures, in order to safeguard the full realization
of the right of everyone to the enjoyment the highest
attainable standard of physical and mental health."

In resolution 2002/84 entitled "Human Rights and thematic
procedures," the Commission

"(2)Encourages all Covernments to cooperate with the
Commission through pertinent thematic procedures by

(a) Responding w2.thout undue delay to requests for
information made to them through the thematic procedures, so
that the procedures may carry out their mandates effectively;

"(3) Calls upon the Governments concerned to study carefully
the recommendations addressed to them under thematic
procedures and to keep the relevant mechanisms informed
without undue delay on the procress made towards their
implementation .E

."

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In this connection, we should like to bring to your
Government's attention allegations we have recently received
relating to your country, a summary of which you will find in
the annex to this letter. Stressing that we do not make any
determination on the facts and circumstances of these
allegations, we would request your cooperation in clarifying
their substance. In order to do so, information concerning
the following matters would be useful:

-- Are the facts alleged in the summary of the case accurate?
If not, please provide details of the inquires carried out
to refute these allegations.

-- Have the actions or omissions complained of now ended or

in fact continue to be imposed and, if so, why is such the

case?

-- Has a complaint, formal or informal, been made on behalf

of the victim? If so, who made the complaint and what is

their relation to the victim? To whom was the complaint

made? what action was undertaken upon receipt of the

complaint and by whom?

-- Which is the authority responsible for investigating the

allegations? Which is the authority responsible for

prosecuting the perpetrators?

-- Are any inquiries, judicial or other procedures in
connection with the case under way? if so, please provide
details of their progress to date, and the timetable
envisaged for their conclusion. If such inquiries or
procedures have been completed, please provide details of the
conclusions reached. (Please attach copies of any relevant
documents). Are these conclusions definitive?

-- Have penal or disciplinary sanctions been imposed on the

alleged perpetrators? If so, please provide details of the

procedures followed to ascertain the penal or disciplinary

responsibility of the perpetrators before imposing such

penalties.E

If no such sanctions have been imposed, why not?

-- If no inquiries have been undertaken, why not? If the

inquires which were undertaken were inconclusive, why so?

-- Has any compensation been provided to the victim or

his/her family? If so, please provide details including the

type and the amount of the compensation involved. If no

compensation has been provided, why not?

-- Was a medical examination conducted? if so, by whom?

What are the results of the medical examination?

-- Is the identity of the person or persons, group or unit

responsible for the torture known? Is the identity of any

military, police, paramilitary, civil defence or similar

body, or armed croup not under government control, to which

those responsible belong known?

-- Please provide such other information or observations

concerning the present case as you consider relevant.

In addition, we would urge your Government to take any steps

that might be necessary to investigate, prosecute and impose
appropriate sanctions on any persons guilty of the alleged
violations, and to provide an adequate remedy for the victim.

We also request your Government to adopt effective measures
to prevent the recurrence of such acts.

It would be greatly appreciated if your Government's reply
could be sent to the Office of the United Nations High
Commissioner for Human Rights by 2 September 2004.

Please accept, Excellency, the assurances of our highest
consideration.

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Theo Van Boven

Special Rapporteur on the question of torture

Leandro Despouy

Special Rapporteur on the independence of juges and lawyers

Paul Hunt

Special Rapporteur on the right of everyone to the enjoyment

of the highest attainable standard of physical and mental

health

End text of letter.

3. Begin text of annex:

Mindful of the 28 June 2004 decision of the United States
Supreme Court, which stated that U.S. courts have
jurisdiction to consider challenges of the legality of the
detention of persons incarcerated at the Guantanamo Bay Naval
Base, and the announcement that the first military tribunal
was formed on 29 June 2004, the Special Rapporteurs have
received information regarding Feroz Ali Abbasi, a United
Kingdom national, aged 23, Moazzam Begg , a UK/Pakistani
national, aged 35, David Hicks, an Australian national, aged
28, Salim Ahmed Hamdan, a Yemen national, aged 34, Ali Hamza
Ahmed Sulayman al Bahlul, Yemen national, and Ibrahim Ahmed
Mahmoud al Qosi, a Sudan national. According to the
allegations received:

It was announced on 3 July 2003 that the six men were made
subject to the Military Order on the Detention, Treatment and
Trial of Certain Non-Citizens in the War Against Terrorism,
of 13 November 2001. They were subsequently transferred to
Camp Echo, the part of Guantanamo Naval Base where
pre-commission detainees, or those designated to face a
military commission, are held. Salim Ahmed Hamdan, in
custody since November 2001, was transferred there in early
December 2003, while Feroz Abbasi and Moazzam Begg are
believed to have been held there longer. All Hamza Ahmed
Sulayman al Bahlul, Ibrahim Ahmed Mahmoud al Qosi and David
Hicks have been charged with conspiracy to commit war crimes.

No dates for their trials have been set, but David Hicks may

face a military commission in August.

At Camp Echo each detainee is held in solitary confinement
for up to 24 hours per day in a windowless air-conditioned
cell. The cells are approximately 3m by 3m by 5m, and
divided into living quarters with a bed and small toilet, and
a section for a small table. One psychiatrist, who visited
Guantanamo military base in 2003 at the invitation of the
Department of Defense, stated that the solitary confinement
places the detainees at significant risk for future
psychiatric deterioration, possibly including the development
of irreversible psychiatric symptoms.E

The International
Committee of the Red Cross has stated that it has observed a
worrying deterioration in the psychological health of a large
number of detainees. Moreover, the isolation and conditions
of the confinement may ultimately make these prisoners
susceptible to mental coercion and false confessions.
Therefore there are concerns that guilty pleas or
incriminating testimony could result from the conditions in
which the detainees are held.' According to the
psychiatrist's declaration which was filed in federal court,
Salim Ahmed Hamdan has said that he considered confessing
falsely to ameliorate his situation.

There is concern that the military commissions, whose

sentences cannot be appealed in any other court and include

the death penalty (i.e. sanctions 7 and 4 of the 2001 order,

respectively), will allow for the admission of such evidence
without regard to international standards of due process.
According to the released 26 February 2002 memorandum from

the Justice Department to the Defense Department,

incriminating statements may be admitted in proceedings
before military commissions even if the interrogating

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officers do not abide by the Miranda warnings (the US Supreme
Court decision concerning the rights of suspects).

End text of annex.
4. Mission has transmitted by e-mail a copy of the letter
and annex to IO/SHA, attention Director.
Moley

MINN
End Cable Text
Yvette M Wong 08/19/2004 05:32:38 PM From DB/Inbox: Search Results

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