individuals, access to immediate medical care or the ongoing monitoring of the detention
facilities by the ICRC.
128. Part 1-II-A focuses on issues related to Guantánamo detainees’ treatment in detention and
conditions of confinement. First, it covers the law and practice of the United States in
relation to the prohibition of torture and ill-treatment, and addresses the authorization and
use of “enhanced interrogation techniques” and detention conditions that impinged on the
basic human rights of detainees during the Bush administration. It also covers concerns
that persist under the Obama administration that are related, for instance, to the use of
solitary confinement, hunger strikers’ conditions of confinement, as well as the decision to
force-feed detainees and the procedures used to do so. Finally, it discusses allegations of
medical personnel’s involvement in detainee abuses and the complicity of other OSCE
participating States in acts of torture and ill-treatment.
129. Part 1-II-B of the report then explores other human rights issues that have arisen in
connection with detainees’ conditions of confinement and treatment in detention. These
include, more specifically, concerns related to the respect of freedom of religion or belief
and the provision of medical care to detainees.
I.
PROHIBITION OF ARBITRARY DETENTION
a. International Standards
130. The prohibition of unlawful or arbitrary arrest and detention is enshrined in various
international treaties, including Article 9 of the ICCPR.89 This prohibition is also included
in OSCE commitments, such as Vienna 1989 and Moscow 1991.90 The right to be free
from unlawful or arbitrary arrest and detention entails that “[n]o one shall be subjected to
arbitrary arrest or detention” and that “[n]o one shall be deprived of his liberty except on
such grounds and in accordance with such procedures as are established by law”.91 This
right applies to all persons, irrespective of nationality or citizenship, and includes those
who are suspected of, or who have engaged in, terrorist activity.92
89
The United States has either ratified or signed the following conventions that prohibit arbitrary arrest and detention: ICCPR,
Art. 9; American Convention on Human Rights (ACHR), San Jose, 22 November 1969, Art. 7,
<http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm>. Although not a treaty, the InterAmerican Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights determined that the following
Declaration contains legal obligations for the Member States of the Organization of American States, including the United States:
The American Declaration of the Rights and Duties of Man (ADRDM), Bogotá, 2 May 1948, Arts. I, XXV,
<http://www.cidh.org/basicos/english/Basic2.American%20Declaration.htm>. The following also contain relevant provisions:
Universal Declaration of Human Rights (UDHR), Paris, 10 December 1948, Art. 9, <http://www.un.org/en/documents/udhr/>;
“Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”, New York, 9 December
1988, Principles 10-18, <http://www.un.org/documents/ga/res/43/a43r173.htm>.
90
OSCE Conference on Security and Co-operation in Europe, “Questions Relating to Security in Europe: Principles”, Vienna,
1989 (hereinafter, “OSCE Vienna Document”), para. 23.1, <http://www.osce.org/mc/16262>; OSCE Copenhagen Document, op.
cit., note 80, para. 5.15; OSCE, “Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE”,
Moscow, 3 October 1991 (hereinafter, “OSCE Moscow Document”), para. 23.1, <http://www.osce.org/odihr/elections/14310>;
OSCE Ministerial Council, Decision No. 12/05, “Upholding Human Rights and the Rule of Law in Criminal Justice Systems”,
Ljubljana, 6 December 2005 (hereinafter, “OSCE Ljubljana Document”), <http://www.osce.org/mc/36575?download=true>.
91
ICCPR, Art. 9(1).
92
UN HRC, General Comment No. 35, Article 9: Liberty and security of person, CCPR/C/GC/35, 28 October 2014, para. 3,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f35&Lang=en>.
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