On Monday, marking the third anniversary of President Obama’s failed promise to close the “war on terror” prison at Guantánamo within a year, Navi Pillay, the UN High Commissioner for Human Rights, expressed what a UN news release described as “deep disappointment” that the Obama administration had failed to close Guantánamo and had, instead, “entrenched a system of arbitrary detention.” She also said she was “disturbed at the failure to ensure accountability for serious human rights violations, including torture,” that took place at Guantánamo.
In her exact words, Navi Pillay said:
It is ten years since the US Government opened the prison at Guantánamo, and now three years since 22 January 2009, when the President ordered its closure within twelve months. Yet the facility continues to exist and individuals remain arbitrarily detained — indefinitely — in clear breach of international law.
I was encouraged by the mention of arbitrary detention, as I have been attempting, for over a year, to ascertain when it would be appropriate to describe the prisoners as being subjected to arbitrary detention, given that they remain held, whether or not they have been cleared for release. 89 of the remaining 171 prisoners were cleared for release at least two years ago by an interagency Task Force established by President Obama, but they remain held, because of hysteria regarding the security situation in Yemen, and because of Congressional obstruction. Now, perhaps, the UN Working Group on Arbitrary Detention will be able to exert pressure on the administration, by requesting a visit to the prison.
Navi Pillay also discussed the recently passed National Defense Authorization Act, with its disgraceful requirement for the mandatory military custody, without charge or trial, of anyone who can be described as having a connection to al-Qaeda. As she explained:
To make matters worse, the new National Defense Authorization Act, signed into law in December 2011, now effectively codifies such indefinite military detention without charge or trial. This piece of legislation contravenes some of the most fundamental tenets of justice and human rights, namely the right to a fair trial and the right not to be arbitrarily detained. Nobody should ever be held for years on end without being tried and convicted, or released.
The High Commissioner took note of President Obama’s commitment to interpret relevant sections of the National Defense Authorization Act “in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law,” which he noted when he signed the NDAA into law, but added:
While fully recognizing the right and duty of states to protect their people and territory from terrorist acts, I remind all branches of the US Government of their obligation under international human rights law to ensure that individuals deprived of their liberty can have the lawfulness of their detention reviewed before a court. Where credible evidence exists against Guantánamo detainees, they should be charged and prosecuted. Otherwise, they must be released.
Turning to accountability for torture, Navi Pillay explained that international law requires “thorough and systematic investigation of all allegations of serious human rights violations, including torture, that allegedly took place at Guantánamo Bay,” adding, “Every effort must be made to hold to account those responsible for the development, approval or implementation of coercive interrogation methods analogous to torture under international law. Individuals found to have perpetrated, ordered, tolerated or condoned torture and ill-treatment should be brought to justice.”
The High Commissioner also urged the Obama administration “to ensure that conditions of detention comply fully with human rights standards under international law,” explaining that “she was disturbed by the Government’s failure to allow independent human rights monitoring of the detention conditions at Guantánamo.” This is a long-standing complaint, and it highlights how Guantánamo remains a facility that, even under President Obama, is regarded, with complete justification, as an exception to the normal rules of detention.
In conclusion, she stated:
I urge the US Congress to take steps to enable the US Administration to close the Guantánamo Bay detention centre — as it stated it wished to do — in compliance with the Government’s obligations under international human rights law, and in so doing, to fully respect the principle of non-refoulement, under which no one should be sent back to a country where they may face torture.”
Ten years after Guantánamo opened, and three years after President Obama took office, it is depressing that the UN High Commissioner for Human Rights has to remind the US of its obligations, and to point out that the current situation is one in which the prisoners are held in arbitrary detention. I wish I could say that Congress and the Obama administration will be shamed into doing something about, but unfortunately it is unclear that anyone regards it as a pressing enough shame to take steps to bring the prison’s existence to an end once and for all.
Note: Please visit the website of the “Close Guantánamo” campaign, and sign up to join a growing body of people demanding that President Obama fulfill his unfulfilled promise to close the prison. Please also sign a new White House petition on the “We the People” website calling for the closure of Guantánamo. 25,000 signatures are needed by February 6 to secure a response from the President.