30 | Towards the Closure of Guantanamo 42. In its recommendation the IACHR resolved to: 1. INDICATE that the failure of the United States to give effect to the Commission’s precautionary measures has resulted in irreparable prejudice to the fundamental rights of the detainees at Guantanamo Bay including their rights to liberty and to humane treatment. 2. URGE the United States to close the Guantanamo Bay facility without delay. 3. URGE the United States to remove the detainees from Guantanamo Bay through a process undertaken in full accordance with applicable forms of international human rights and humanitarian law. 4. URGE the United States to take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment or punishment if transferred, removed or expelled from Guantanamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Further, where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non-refoulement obligation. 43. 44. 27 5. URGE the United States to comply with its obligation to investigate, prosecute and punish any instances of torture or other cruel, inhuman or degrading treatment or punishment that may have occurred at the facility, even in the event that Guantanamo Bay facility is closed. On July 22, 2011, the Inter-American Commission issued Resolution No. 2/11 Regarding the Situation of the Detainees at Guantanamo Bay, United States, MC 25902. 27 In this second resolution, the IACHR addressed the U.S. position on the detainees’ right to judicial review of the bases for their ongoing deprivation of liberty. In this respect, the Commission stated that the fact that the U.S. courts consistently deferred to the Executive rendered this right illusory. The Inter-American Commission also referred to the 78 detainees who, according to the Executive, could be held indefinitely without criminal charges in light of the alleged threat that they presented to U.S. national security but against whom there was insufficient evidence to secure a conviction in the courts of justice. The IACHR, Resolution No. 2/11 Regarding the Situation of the Detainees at Guantanamo Bay, United States, MC 259-02, July 22, 2011. Available at: http://www.cidh.oas.org/pdf%20files/Resolution%20211%20Guantanamo.pdf Organization of American States | OAS