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