United States was in violation of international standards from 2002 to 2008 by not
allowing detainees to challenge the lawfulness of their detention in accordance with
international humanitarian law or international human rights law.
173. The PRB also assesses the possibility for a detainee’s release. Similar to CSRTs and the
ARB, the PRB is an administrative mechanism. It does not assess the lawfulness of
detention, but instead analyses the detainee’s threat to the United States if released.244 The
IACHR has concluded that the PRB falls short of the standards required by the ICRC
regarding the independence and impartiality of any review body in the context of armed
conflicts.245 The PRB only held its first hearing in 2013 by which time detainees were
already able to challenge their detention in court. Since detainees already had an avenue to
challenge their detention in court, the existence of the PRB is not relevant to assessing
whether the United States complied with international standards in relation to the
obligation to ensure that detainees have access to a court to challenge the lawfulness of
their detention. This mechanism, however, will be discussed in Part 3 of this report in
relation to the closure of Guantánamo.
174. Even though the United States Supreme Court determined that Guantánamo detainees have
the right to habeas corpus hearings in 2008, some detainees have waited years for US
courts to rule on their petitions.246 For instance, Obaidullah filed his habeas corpus petition
in July 2008. The Bush administration subsequently filed charges against him, which were
later withdrawn. Before the charges were withdrawn, his habeas corpus petition was held
in abeyance from 2008 to June 2010.247 International law stipulates that challenges to the
lawfulness of detention must be determined without delay, usually within several weeks.248
While the particular circumstances of a case may justify some delay, ODIHR considers
that a delay of over two years is a substantial delay in violation of the prohibition of
arbitrary detention.249
175. Contrary to international standards, US courts have not ordered the immediate release of
detainees following successful habeas corpus petitions. This has allowed the US
government to continue to unlawfully hold detainees at Guantánamo for extended periods
were not held before an independent and impartial tribunal”, “CSRT is not an adequate and effective substitution to habeas
corpus proceedings, and the Working Group has itself previously stated that ‘the procedures of the CSRT and the ARB are not
adequate ... to satisfy the right to a fair and independent trial as these are military tribunals of a summary nature.’”; UN Special
Rapporteur on human rights and counter-terrorism, Report to the General Assembly, A/63/223, op. cit., note 55, para. 22.
244
ODIHR meeting with the Special Envoys for Guantánamo Closure and the National Security Council, 4 September 2014.
245
IACHR, “Towards the Closure of Guantanamo”, 3 June 2015, paras. 262-265,
<http://www.oas.org/en/iachr/reports/pdfs/Towards-Closure-Guantanamo.pdf>.
246
Article 9(4) of the ICCPR requires the court be able to “decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful”.
247
UN Working Group on arbitrary detention, Obaidullah v. United States of America, op. cit., note 197, paras. 8, 17; “I Am
Fallen into Darkness: The Case of Obaidullah, Guantánamo Detainee Now in His 12th Year without Trial", Amnesty
International, July 2013, p. 14, <http://www.amnestyusa.org/sites/default/files/amr510512013en.pdf>. His habeas corpus petition
was subsequently denied in October 2010. United States District Court for the District of Columbia, Obaydullah v. Barack H.
Obama, No. 08-1173, 19 October 2010, <https://casetext.com/case/obaydullah-v-obama-6?page=349>.
248
UN HRC, General Comment No. 35, op. cit., note 92, para. 47; Nowak, CCPR Commentary, op. cit., note 93, p. 236.
249
See, also, UN Working Group on arbitrary detention, Obaidullah v. United States of America, op. cit., note 197, paras. 35, 44:
“The two-year delay in allowing Mr. Obaidullah to challenge his detention is a grave and clear violation, further aggravated by
his continued detention [of Article 9(4) of the ICCPR].” The Working Group on arbitrary detention also determined that
Obaidullah’s detention in general was arbitrary.
71
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