Chapter4 Access to Justice | 107
operational command or at least be effectively independent from the latter’s
influence; the body should be made up of permanent members and internmentreview should be their only task; and at least one of the body’s members should be a
qualified lawyer. 316
264. The PRB process does not appear to meet some of the above mentioned criteria.
Although the Board issues “final determinations,” the official information available
indicates that “the PRB process is intended to assist the executive branch in making
informed decisions as to whether detainees held at Guantanamo Bay should remain
in law of war detention” (emphasis added). 317 Therefore, the PRB does not appear
to be a direct decision-making body. Further, some members of the PRB are
appointed within the chain of operational command, such as the Department of
Defense and the Joint Chiefs of Staff. Finally, there is no publicly available
information on whether outside observers are able to watch the proceedings, if
internment-review is the only task of PRB members and if one of them is a qualified
lawyer. The IACHR also notes that it is not clear whether attorney-client privilege
attaches to PRB proceedings.
265. The IACHR concludes that, although the PRB review process established in 2011 is
an important improvement over previous systems of review, it falls short of what is
required by the standards developed by the ICRC regarding internment review in
the context of armed conflicts. It also notes that the PRB cannot “effectively […]
order release as soon as interment is no longer necessary,” 318 a point that will be
discussed in the following chapter.
266. Despite these deficiencies, the IACHR believes that the U.S. Government is providing
a more diligent review, on a case-by-case basis, at whether detainees pose a
continuing threat. The periodic review of detention could support significant
progress toward the closure of Guantanamo given that many of the detainees could
potentially be moved from the indefinite detention category to the prosecution
category or the cleared category. One issue of concern, however, is the fact that it
took the PRB more than two years to start with the review proceedings and, as of
March 2015, only fourteen cases have been fully reviewed. Therefore, the existence
of the PRB process does not reduce the urgency in addressing continuing arbitrary
indefinite detention in Guantanamo.
316
317
318
International Review of the Red Cross, Reports and Documents, Expert meeting on procedural safeguards for
security detention in non-international armed conflicts, Chatham House and International Committee of the
Red Cross, London, 22-23 September 2008, Volume 91 Number 876, December 2009, p. 879.
Periodic Review Secretariat website.
International Review of the Red Cross, Reports and Documents, Expert meeting on procedural safeguards for
security detention in non-international armed conflicts, Chatham House and International Committee of the
Red Cross, London, 22-23 September 2008, Volume 91 Number 876, December 2009, p. 879.
Inter-American Commission on Human Rights | IACHR
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