Chapter 3 Conditions of Detention | 45 82. allows “the US government to indefinitely detain persons suspected of terrorist activities, without establishing their individual culpability in any crime or their actual participation in hostilities.”62 Although the NDAA for fiscal year 2014 includes some improvements in terms of transfer of detainees held in Guantanamo, the 2012 provision that permits the detention of individuals indefinitely without trial remains in place. In addition, the concern raised by the Inter-American Commission in its 2011 Resolution about the lack of clarity regarding the circumstances that will justify the release of the detainees persists. 63 The AUMF authorized the United States Armed Forces to detain suspected terrorists without trial “until the end of hostilities.” However, given the unconventional nature of this ongoing global conflict, it is not clear when the hostilities would be declared over. Finally, the IACHR notes with concern that, despite the above-mentioned improvements, throughout these years there has been a normalization of the indefinite executive detention regime in Guantanamo. 2. 83. The right to personal liberty in the context of non-international armed conflicts It is not clear to what extent the U.S. Government considers the “war on terrorism” to be an international or non-international armed conflict; the distinction is important in order to define the protections guaranteed under international humanitarian law. As indicated supra, in 2009 the U.S. Government established that “principles derived from law-of-war rules governing international armed conflicts […] must inform the interpretation of the detention authority” (emphasis added) under the AUMF. However, it contended that this body of law “is less well-codified with respect to our current, novel type of armed conflict against armed groups” than Therefore, according to the U.S. with armed conflicts between States. 64 Government, many of the features of traditional international armed conflict do not apply. 84. Whereas international armed conflicts (armed conflicts between two or more States) are covered by the four Geneva Conventions of 1949 and their First Additional Protocol of 1977, non-international armed conflicts (armed conflicts between a State and an organized non-State armed group or between two or more such groups in a State’s territory) are covered by common Article 3 of the Geneva Conventions and the Second Additional Protocol where applicable; under certain conditions, custom and general principles of law may apply. Since the overthrow of the Taliban government in December 2001 by the American-led invasion of Afghanistan, the “war on terrorism” has been a conflict opposing one or more States, 62 Statement of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Mendez, IACHR’s Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013. IACHR, Resolution No. 2/11 Regarding the Situation of the Detainees at Guantanamo Bay, United States, MC 259-02, July 22, 2011. Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re: Guantanamo Bay Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Mar. 13, 2009). 63 64 Inter-American Commission on Human Rights | IACHR