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Distr.
GENERAL E/CN.4/2003/NGO/170
17 March 2003
Original: ENGLISH
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English only/
COMMISSION ON HUMAN RIGHTS
Fifty-ninth session
Item 11 (a) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF:
TORTURE AND DETENTION
Written statement* submitted by National Association of Criminal Defese Lawyers (NACDL),
a non-governmental organization in special consultative status
The Secretary-General has received the following written statement which is circulated in accordance with Economic and Social Council resolution 1996/31.
[3 February 2003]
The United Nations Commission on Human Rights ("Commission") established a Working Group on Arbitrary Detention ("Working Group") through Resolution 1991/42 and has extended the mandate every three years, most recently through Resolution 2000/36. In accordance with the Commission's Provisional Agenda and the Advance Report of the Working Group on Arbitrary Detention (E/CN.4/2003/8), the National Association of Criminal Defense Lawyers ("NACDL"), a non-governmental organization in special consultative status, submits the following update on the status of persons being arbitrarily detained both within the United States of America ("United States") or within United States territory.
NACDL would like to commend the leadership of the High Commissioner for Human Rights, the Commission on Human Rights, the Special Rapporteurs and members of the Working Group on Arbitrary Detention on their good efforts to bring about changes in states that arbitrarily detain their citizens or foreign nationals without charges and deny them access to legal counsel. NACDL also commends the Working Group and its members for focusing on the arbitrary detentions presently occurring in the Untied States and at Guantanamo Bay, Cuba. The Working Group, in its Advance Report to the Commission Human Rights (E/CN.4/2003/8), determined that the United States is arbitrarily detaining two persons in the United States and numerous persons at Guantanamo Bay. NACDL also commends the March 12, 2002 decision by the Inter-American Court of Human Rights that requested the United States to take urgent measures to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.
The question of arbitrary detention remains significant in the United States. Two individuals provide the most glaring examples of government abuse, Jose Padilla and Yasser Esam Hamdi whom the United States is still detaining as "enemy combatants" and are still being denied access to the United States' legal system, including access to counsel. In addition, the United States continues to detain several hundred persons at Guantanamo Bay, and as in the case of the two individuals being detained on U.S. soil, the Guantanamo Bay detainees are also being denied any access to legal counsel and to the judicial system. Without the intervention of the international community, the NACDL does not believe the United States will change its position on these detainees.
Mr. Padilla, a United States citizen, arrested in Illinois upon his return to the United States, has been held since May 2002. The United States has used the legal system to continue to prevent access by lawyers seeking to meet with Mr. Padilla. The actions by the United States are egregious – Mr. Padilla has remained in the custody of the United States for nine months, locked away in a Navy Brig, without being charged with any crime and without access to legal counsel. Repeated attempts by a United States Federal Judge to order the Department of Justice to allow Mr. Padilla's lawyers' access to their client have been ignored or rebuffed.
Yasser Esam Hamdi, also a citizen of the United States was initially detained in Afghanistan, transferred to Guantanamo Bay, and ultimately transferred to the United States where he is currently being held in a military brig in Virginia. As with Mr. Padilla, the United States has also declared that Mr. Hamdi is an "enemy combatant" and because of such status designation, the federal government has refused to provide Mr. Hamdi with access to counsel. Mr. Hamdi has not been charged with any crime. Again, as with Mr. Padilla, the United States continues to use the United States legal system to deny Mr. Hamdi access to counsel. The Federal Judges in the U.S. Fourth Circuit have rejected Mr. Hamdi's legal challenges and, in essence, destroyed the rights guaranteed in the U.S. Constitution and Bill of Rights.
The Working Group has examined in detail the questions of Mr. Hamdi and Mr. Padilla, and the Guantanamo Bay detainees. As part of its review, the Working Group made two formal requests to the Permanent Representative of the United States to the United Nations Office at Geneva requesting clarification and information concerning all of these detainees. Both of the Working Group's requests remain unanswered. The Working Group proceeded with its review and determined that at a minimum, the detentions of Mr. Hamdi and Mr. Padilla are arbitrary as both have been held in solitary confinement, without access to counsel, without formal charges having been brought, and without being able to communicate with their families. With regard to the Guantanamo Bay detainees, the Working Group determined that these persons are subject to the protections set forth in the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 ("1949 Geneva Convention III"). As with the detentions of Mr. Hamdi and Mr. Padilla, the detention of the Guantanamo Bay detainees is also arbitrary.
NACDL agrees with the Working Group's assessment that at a minimum, until the Guantanamo Bay detainees receive classification from a competent judicial body as to their legal status, which NACDL urges occur without further delay, that the United States afford the protections and rights provided in the Geneva Convention relative to the treatment of prisoners of war. Further, NACDL would urge the Working Group, the Commission, and the international community to continue their efforts to hold the United States accountable and to comply with its legal responsibilities under the 1949 Geneva Convention III. NACDL further agrees with the Working Group that the detention of these persons is arbitrary as shown by the United States continued resistance to affording the detainees access to a judicial forum to have their legal status determined.
The United States is also holding these detainees without bringing formal charges, again in violation of the provisions of the 1949 Geneva Convention III. Together, these acts highlight the arbitrariness of the United States' actions. In addition, the 1949 Geneva Convention III includes provisions for prisoners to notify their families of their health, and to have communications with them (1949 Geneva Convention III, Art. 70-71). NACDL questions whether the detainees at Guantanamo Bay have been afforded such a fundamental right considering the United States continues to deny them access to counsel and the judicial system. Accordingly, NACDL requests continued assistance from the Working Group, the Commission and the international community to continue their efforts to urge the United States to provide these detainees with access to counsel and the judicial system, and with other rights afforded to such persons under the Convention and the International Convention on Civil and Political rights, of which the United States is a signatory.
NACDL members in the United States continue to work diligently toward requiring the United States to grant legal counsel access to all of the detainees discussed here. Our members are the very lawyers being turned away at the jails, the courts and in domestic public opinion as they try to secure basic international human rights for the detainees. NACDL believes that with continued focus on the question of arbitrary detention, and scrutiny by the international community including the United Nations, the Human Rights Commission, the Working Group on Arbitrary Detention, and their dedicated staff, that the United States will change its position and grant these detainees the legal protections they deserve.
In conclusion, NACDL requests the Commission, the Working Group and its friends in the international community to continue to urge the United States to comply with its legal obligations under the Geneva Conventions, the International Convention on Civil and Political Rights.
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*This written statement is issued, unedited, in the language(s) received from the submitting non-governmental organization(s).