Chapter 3 Conditions of Detention | 41
70.
For the same reasons which frequently require the Commission to refer to
international humanitarian law in resolving individual cases, “the Commission also
finds it necessary to utilize humanitarian law along with human rights law, in
general reports […], for the purpose of analyzing a State's international
responsibility relating to violence, where much of that violence occurs in the context
of an armed conflict.” 43
1.
71.
72.
73.
43
44
45
46
47
The legal status of detainees held at Guantanamo Bay
The United States Government holds the position that it has the authority to
continuously detain prisoners at the Guantanamo Bay detention facility without
charge or trial. 44 In this regard, it has indicated that “[t]he law of war allows the
United States – and any other country engaged in combat – to hold enemy
combatants without charges or access to counsel for the duration of hostilities.
Detention is not an act of punishment but of security and military necessity. It
serves the purpose of preventing combatants from continuing to take up arms
against the United States.” 45 In its response to this report, the United States claimed
that “[t]he detainees who remain at the Guantanamo Bay detention facility continue
to be detained lawfully, both as a matter of international law and under U.S.
domestic law.” 46 In this regard, the State indicated that, as part of the “ongoing
armed conflict with al-Qaida, the Taliban, and associated forces,” the United States
has captured and detained enemy belligerents, and is permitted under the law of
war to hold them until the end of hostilities.
Two months after the United States began transferring individuals to Guantanamo
Bay, the Inter-American Commission granted precautionary measures in favor of
the detainees held in that facility and requested that the United States take the
urgent measures necessary to have the legal status of the detainees determined by a
competent tribunal. In its first Resolution on this issue, the Commission asserted
that, “without this determination, the fundamental and non-derogable rights of the
detainees may not be recognized and guaranteed by the United States.” 47
To understand the question of the indefinite detention of prisoners at Guantanamo
Bay, it is important to have a brief overview of the evolution of the legal status of
IACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, February 26, 1999,
Chapter III, para. 13.
Written submission of the United States Government following the IACHR’s thematic hearing on the “Situation
of Human Rights of the Persons Detained at the U.S. Naval Base at Guantanamo Bay” held on October 28,
2013, p. 2.
Response of the United States of America dated October 21, 2005, to Inquiry of the UN Special rapporteurs
dated August 8, 2005, Pertaining to Detainees at Guantanamo, p. 3, cited in U.N. Econ. & Soc. Council,
Comm’n on Human Rights, Situation of detainees at Guantanamo Bay, E/CN.4/2006/120, February 27, 2006,
para.
19.
Available
at:
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G06/112/76/PDF/G0611276.pdf?OpenElement
Submission of the Government of the United States to the Inter-American Commission on Human Rights with
respect to the Draft Report on the Closure of Guantanamo, OEA/Ser.L/V.II.Doc. 30 January 2015, March 30,
2015, p. 1.
IACHR, Resolution No. 2/06, On Guantanamo Bay Precautionary Measures, July 28, 2006.
Inter-American Commission on Human Rights | IACHR
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