Letter from the Organization of American States: Detainees in Guanatanamo Bay Request for Precautionary Measures

Letter from OAS/Inter-Commission on Human Rights to Colin L. Powell requesting precautionary measures for detainees in Guantanamo.
The letter states that 254 detainees were brought to Camp X-ray on or about Jan 11, 2002 from Afghanistan, Mr. Mendez asks that the detainees be treated as POWs, and be kept free from arbitrary and prolonged detention, and unlawful interrogations.

Tuesday, March 12, 2002
Wednesday, December 29, 2004

03/12/02 TUE 17:07 FAX 202 458 3892 OAS ICHR


WASHINGTON, D.C. 2 0 0 0 6 U.S.A.

KL 3c-
March 12, 2002
Ref: Detainees in Guantanamo Bay, Cuba
Request for Precautionary Measures

On behalf of the Inter-American Commission on Human Rights, I have the honor of addressing Your Excellency with respect to the above-cited request for precautionary measures under Article 25(1) of the Commission's Rules of Procedure, which was received by the Commission on February 26, 2002. The pertinent parts of the request are attached to this communication.
According to this request for precautionary measures, approximately 264 detainees are currently being held by the United States at its Naval Station in Guantanamo Bay, Cuba. in a facility known as "Camp X-Ray" The request, which was presented by several individuals and non­governmental organizations ostensibly on behalf of the Guantanamo Bay detainees, also indicates that these detainees were transported by the United States to Guantanamo Bay beginning on or about January 11, 2002, following their capture in Afghanistan in connection with a military operation led by the United States against the former Taliban regime in that country and an organization known as Al Qaeda.
Further, the request claims that these detainees at Guantanamo Bay are at risk of irreparable harm in their present situation on three grounds. It is first contended that the United States has refused to treat the detainees in accordance with the procedures established under the Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War (the °Third Geneva Convention", namely that they be treated as prisoners of war under that Convention until a competent tribunal determines otherwise. It is also alleged that the persons at Guantanamo Bay have been detained arbitrarily, incommunicado and for a prolonged period of time, and have been interrogated without access to legal counsel, contrary to the requirements of the American Declaration of the Rights and Duties of Man. Finally, the request alleges that certain detainees are at risk of trial and possible death sentences before military commissions that fail to comply with established principles of international law.
His Excellency Colin L. Powell
Secretary of State
VIA His Excellency Roger Noriega
Ambassador, Permanent Representative of the

United States of America to the Organization of
American States
Washington, D.C.


DATE/CASE ID: 02 DEC 2004 200303827
On these grounds, the detainees' representatives ask the Commission to request that the United States take measures to protect the detainees' rights to be treated as prisoners of war, and to be free from arbitrary, incommunicado, and prolonged detention, unlawful interrogations, and trials by military commissions, in accordance with the rights protected under the American Declaration of the Rights and Duties of Man.
After careful deliberation on this request, the Commission decided during its 114 th regular period of sessions' to adopt precautionary measures, according to which we ask Your Excellency's government to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. Given the significance and implications of this request to and for the United States and the detainees concerned, the Commission wishes to articulate the basis upon which it reached this decision.
The Commission notes preliminarily that Its authority to receive and grant requests for precautionary measures under Article 25(1) of its Rules of Procedure 2 is, as with the practice of other international decisional bodies, 3 a well-established and necessary component of the Commission's processes." Indeed, where such measures are considered essential to preserving the Commission's very mandate under the OAS Charter, the Commission has ruled that OAS member states are subject to an international legal obligation to comply with a request for such
The mandate given to the Commission by OAS member states, including the United States, under Article 106 of the Charter of the Organization of American States and Articles 18, 19 and 20 of the Commission's Statute is In turn central to the Commission's consideration of the matter presently before lt.. Through the foregoing provisions,• OAS member states have charged the Commission with supervising member states' observance of human rights in the Hemisphere. These rights include those prescribed under the American Declaration of the Rights and Duties of Man, which constitutes a source of legal obligation for all OAS member states° in respect of persons subject•to their authority and control.' The Commission has been directed to pay particular attention
'As this request was considered while the Commission was in session, these precautionary measures were approved by all eligible members of the Commission present, namely: Juan Mendez, President; Marts Altolaguine, First Vice-President Jose 7-Moque% Second Vino-President; Julio Prado Vallejo and Clara Kamau Roberts, Commissioners. Commissioner Robert K. Goldman did not take part In the discussion and voting on these precautionary measures, pursuant to Article 17(2) of the Commbslon's Rules of Procedure.
4 ArtIda 25(1) of the Commission's Rules of Procedure provides: in serious and urgent oases, and whenever necessary according to the Information available, the Commission may, on its own Initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent Irreparable harm to peraons. -
3 See o.g. American Convention on Human Rights, Alt 63(2); Rules of Procedure of the laterAmetioan Court of Human Rights,
Art 25; Statute of the international Court of Justice. 59 Stat. 1055, Art 41; Ruin of Procedure of the United Nations Human Rights Committee, U.N. Doc. CC.PRrA/Rov,6, M. 86: Rules of Procedure of the European Commission of Human Rights, revised Rules updated to 7 May 1983, Art 38; Rules of Procedure of the African Commission on Human and Peoples' Rights, adopted on 6 October 1995, Art-111.
` Sec Regulations of the Inter-American Commission on Human Rights, approved by the Commission at its 660" Meeting, 49* session held on April 8, 1980, and modified at its 64", 70". 90" and Ord sessions, Ad. 29; Rules of Procedure of the Inter-American Commission on Human Rights, approved by the commission at as 109* special session held from December 4 b 8, 2000. Art 26; Annual Report of the IACHR 1998. Chapter I1(4); Annual Report of the IACHR 1997, Chapter !MIKA); Annual Report of the IACHR 1998, Chapter
Ill(2)(A); Annual Report of the IACHR 1999, Chapter 111(CKI); Annual Report of the tACHR 2000. Chapter IU(CK1).
• See IACHR, Fifth Report on the Situation of Human Rights in Guatemala, 0EASer.L/Wil.111 doe. 21 rev. (0 April 2001). pares. 71.72; Juan Raul Garza v. United States, Case No. 12.243, Report No, 52/01, Annual Report of the IACHR 2000, para. 117.
See VA Court H.R., Advisory Opinion 0C-10/89, July 14,1989, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights."Set. A N° 10, palm. 43 — 46; James Terry Reach and Jay Pinkerton te. United Steles, Case 9647, Res, 3/87, 22 September 1987. Annual Report of the IACHR 198687, pares. 46-49; Michael Edwards etal. v. Bahamas, Case No 12.087, Report No. 48/01, Annual Report of the IACHR 2000.
7 The determination of a state's responsibility for violations of the international human rights of a particular Individual turns not

to the observance of Articles I (right to life), II (right to equality before law), III (right to religious freedom and worship), IV (right to freedom of investigation, opinion, expression and dissemination), . XVII' (right to a fair trial), XXV (right to protection from arbitrary arrest), and XXVI (right to due process of law) of the.Arnerican Declaration.
In addition, while its specific mandate is to secure the observance of international human rights protections in the Hemisphere, this Commission has in the past looked to and applied definitional standards and relevant rules of international humanitarian law in interpreting the
American Declaration and other Inter-American human rights instruments in situations of armed conflict. °
In taking this approach, the Commission has drawn upon certain basic principles that inform the interrelationship between International human rights and humanitarian law. It is wellrecognized
that international human rights law applies at all times, in peacetime and in situations of armed conflict.9 In contrast, international humanitarian law generally does not apply in peacetime and its principal purpose Is to place restraints on the conduct of warfare in order to limit or contain the damaging effects of hostilities and to protect the victims of armed conflict, including civilians and combatants who have laid down their arms or have been placed hors de combat. 1° Further, in situations of armed conflict, the protections under international human rights and humanitarian law may complement and reinforce one another, sharing as they do a common nucleus of non­derogable rights and a common purpose of promoting human life and dignity." In certain circumstances, however, the test for evaluating the observance of a particular tight, such as the right to liberty, in a situation of armed conflict may be distinct from that applicable in time of peace. In such situations, international law, Including the jurisprudence of this Commission, dictates that it may be necessary to deduce the applicable standard by reference to international humanitarian law as the applicable lex speclalls. 12
. Accordingly, where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may. be determined In part by reference to international hurnanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights.
on that Individuara nationeity or presence within a particular geographic area, but rather on whether, under the specific oirour4sten03‘.
that penal fell within the state% authority and control. Sae mg, Sakiatio v. Argentina, Report No. 38/99, Annual Report of the IACHR 1998, pants. 15-20: Coard et el. v. United Stab* Case No. 10.951, Report No. 109/99. Annual Report of the KCHR 1999, para. 37, lateral/a., IACHR. Report on the Situation of Human Rights In Chile, OENSer.1./V/11,66, doc. 17, 1985, Second Report on the Situation of Human Rights in Suriname, CEA/Ser-U'V/0.803. doe. 21, rev. 1, 1985. See similarly Ear. Comm. HR.. Cyprus v. Turkey. 18 Y.B. Eur. Corm Kum. Rats. 83 (1975) at 1181 Eur. Comm. H.R.. Casa of Lotzidou v. Threw. Fretimlnaty Oblections, Judgment of 23 Mardi 1995, Series A No. 310. paras. 59-64.
'See generally Melia v; Atrjafriirla, Case No. 11.137, Report No. 5/97, Annual Report of the IACHR 1997: Coard et al. v. Untied States, SUMS: IACHR, Third Report on the Situation of Human Rights in Colombia, 05A/Ser.UV/11.102 doe. 9 rev. 1,28 February 1999.
Abele Case, supra. para. 158.
"Id., pare: 159.
Id., para. 160.1.
'ICA Advisory Opinion on the Lagably of the Throat or Use of Nuclear Weapons. ICJ Reports 19913, para. 25. See also Abolla Case, supra, para. 161; Coard of al. Cosa, supra, pare. 42.


This basic precept is reflected in the Martens clause common to numerous long-standing humanitarian law treaties, including the Hague Conventions 011899 and 1907 respecting the laws and customs of war on land, according to which human persons who do not fall within the protection of those treaties or other international agreements remain under the protection of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. And according to international norms applicable in peacetime and wartime, such as those reflected in. Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration of the Rights and Duties of Man, a competent court or tribunal, as opposed to a political authority, must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state.
Specifically with regard to the request for precautionary measures presently before it, the Commission observes that certain pertinent facts concerning the detainees at Guantanamo Bay are well-known and do not appear to be the subject of controversy. These include the fact that the government of the United States considers itself to be at war with an international network of terrorists, 13 that the United States undertook a military operation In Afghanistan beginning in October 2001 in defending this war," and that most of the detainees in Guantanamo Bay were apprehended in connection with this military operation and remain wholly within the authority and control of the United States govemment. 15
It is also well-known that doubts exists as to the legal status of the detainees. This includes the question of whether and to what extent the Third Geneva Convention and/or other provisions of international humanitarian law apply to some or all of the detainees and what implications this may have for their international human rights protections. According to official statements from the United States government, its Executive Branch has most recently declined to extend prisoner of war status under the Third Geneva Convention to the detainees, without submitting the issue for determination by a competent tribunal or otherwise ascertaining the rights and protections to which the detainees are entitled under US domestic or international law." To the contrary, the information available suggests that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.
In light of the foregoing considerations, and without prejudging the possible application of international humanitarian law to the detainees at Guantanamo Bay, the Commission considers that precautionary measures are both appropriate and necessary in the present circumstances, in order to ensure matt ih-FrThtus of each of the detainees is clarified and that they are afforded lairaT—• rote commensurate with the us t at ey are found to posse 5, may it no case fall below the minimum standards r
ia-Tri-derogable rights. On this basis.the Commission hereb requests that the United States take the urgent measures necessary to have the legal status
o t e e inees at Guantanamo Bay determined by a competent tribunal.
II See e.g. Remarks by the President in Photo Opportunity with the National Security Team, Office of the Press Secretary, September 12, 2001, ttp: whitehouse.govtnews/releasea2001i09/20010912-4.html.
" See e.g. Radio Address of the President to the Nation, Office of the Press Secretary, October 13, 2001, http: // wwm.whttehouse.govinewstreleases/2001/10/20011013.html.
Is See e.g. Jim Garamone. 50 Detainees now at Gitmo: All Treated Humanely, American Forces Press Service, January 15, 2002, http: //vniAv.defenselink.mil/news/Jan2002/n01152002_200201151.htrnl.
11 5er White House Fact Sheet, Status of Detainees at Guantanamo, Office of the Press Secretary. February 7. 2002, hap. // www.whitehouse.gov/news/releases/2002/02/20020207-13.html.


We respectfully request that Your Excellency's government take whatever actions are deemed necessary so that the Commission may receive information concerning compliance with these measures within 30 days of receipt of the present communication, and thereafter on a periodic basis. In view of the observations of the parties on compliance, the Commission will decide whether to extend or lift the measures.
The Commission also wishes to note in accordance with Article 25(4) of the Commission's Rules of Procedure that the granting of these measures and their adoption by the State shall not constitute a prejudgment on the merits of a case_
Please accept, Excellency, the renewed assurances of my highest consideration.
Juan E Mendez President Enclosure