92 | Towards the Closure of Guantanamo
217. Further, the military commission system has proven to be slow and inefficient. As
will be addressed in the following chapter, 13 years after the U.S. Government
opened the detention facility at Guantanamo Bay, only eight detainees have been
convicted by a military commission, and two of those convictions were overturned
on appeal. In the case of Khalid Sheikh Mohammed, the alleged mastermind of the
September 11, 2001 attacks, it took about 11 years for the prosecution to bring
charges against him. In contrast, the proceedings against Sulaiman Abu Ghaith in
federal court in New York took one year from extradition to sentencing. In
addition, there is no certainty as to which cases the prosecution can and cannot
bring before the military commissions, given that the courts have not yet resolved
the viability of charging conspiracy as a stand-alone offense.
218. The American Declaration establishes that every person has the right to seek
recourse before the courts, to protection from arbitrary arrest, and to due
process. 252 These rights are part of the core due process guarantees, and constitute
the minimum guarantees recognized for all human beings in any type of judicial
proceeding. 253 In this regard, the jurisprudence of the IACHR has established that
the principle of the “natural judge” is a fundamental guarantee of due process. 254
219. The right to be tried by a competent, independent and impartial tribunal previously
established by law has been interpreted by the Commission and the Inter-American
Court as including certain conditions and standards that must be satisfied by
tribunals charged with adjudicating any accusation of a criminal nature. 255 Further,
the domestic guarantees must be in conformity with applicable international
standards and cannot be suspended under either international human rights law or
international humanitarian law. This protection applies to the investigation,
prosecution and punishment of crimes, including those relating to terrorism,
regardless of whether such initiatives may be taken in times of peace or times of
national emergency, including armed conflict. 256
220. When the military commissions at Guantanamo exercise jurisdiction over a matter
that federal courts should and could hear, there is a violation of the individuals’
right to be tried by a competent, independent and impartial tribunal previously
established by law and, a fortiori, of their right to due process. The right to due
process is, in turn, intimately linked to the very right of access to the courts. 257 In its
concluding observations on the fourth periodic report of the United States, the
Human Rights Committee requested the State to “ensure that any criminal cases
against detainees held in Guantanamo […] are dealt with through the criminal
252
253
254
255
256
257
American Declaration, Articles XVIII, XXV, and XXVI.
IACHR, 2011 Annual Report, Chapter IV, Cuba, para. 211.
See in this regard, IACHR, Application to the Inter-American Court of Human Rights in the case of Baruch
Ivcher Bronstein v. Peru, Case 11.762, March 31, 1999, p. 25.
IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 228.
IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 261.
See, mutatis mutandi, I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs.
Judgment of May 30, 1999. Series C No. 52, para. 128.
Organization of American States | OAS
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