Chapter4 Access to Justice | 93 justice system rather than military commissions, and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” 258 221. The IACHR is also seriously concerned by the fact that the detention facility and regime at Guantanamo were designed and have in fact been applied to a specific category of individuals: foreign Muslim men. The statutes governing detention at Guantanamo only cover aliens. According to Section 948c of the 2009 MCA, “[a]ny alien unprivileged enemy belligerent is subject to trial by military commission.” Section 948a specifies that the term “alien” means an individual who is not a citizen of the United States.” None of the 779 individuals who have reportedly been held at Guantanamo are either American citizens or non-Muslims. 259 222. Neither the American Declaration nor the American Convention prohibit all distinctions in treatment. Distinctions that are reasonable and objective may be compatible with inter-American human rights instruments; conversely, those that are unjustified or arbitrary violate human rights. The IACHR and the InterAmerican Court evaluate whether a distinction is reasonable and objective on a case by case basis using a standard test involving several elements. When distinctions are based on categories expressly referenced in the nondiscrimination clauses of international human rights treaties, the test used must be particularly strict. Therefore, the mere existence of a legitimate goal is not enough to justify a distinction based on a suspect category. Furthermore, the measure must be strictly necessary to attain the goal sought, meaning that no other less harmful alternative exists. 260 223. According to Article II of the American Declaration, “[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.” The IACHR notes that national origin is not expressly referenced in the text of the nondiscrimination clause contained in the American Declaration, although it falls under “any other factor.” National origin is expressly defined as a prohibited ground in the nondiscrimination clauses of many international human rights treaties, including the International Covenant on Civil and Political Rights to which the United States is a party. As is clear from the object and purpose of the ICCPR, and as the Commission has express with respect to the American Declaration, one of the fundamental objectives of these instruments “was to assure in principle “the equal protection of the law to nationals and aliens alike in respect to the rights set 258 259 260 United Nations, International Covenant on Civil and Political Rights, Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, CCPR/C/USA/CO/4, April 23, 2014, para. 21. It should be noted that Yasser Hamdi (Hamdi v. Rumsfeld), who was born in the United States and raised in Saudi Arabia, was sent to Guantanamo until authorities learned that he was an American citizen. He was released in October, 2004, and allowed to return to Saudi Arabia under an agreement requiring Hamdi to renounce his American citizenship. See in this regard, IACHR, Application to the Inter-American Court of Human Rights in the Case of Karen Atala and daughters v. Chile, Case 12.502, September 17, 2010, paras. 85-89. Inter-American Commission on Human Rights | IACHR