161. While the United States likely had authority to detain some of the Guantánamo detainees
based on their direct participation in hostilities, ODIHR is concerned that other detainees
allegedly apprehended and detained under international humanitarian law may in fact have
been detained based on the particular circumstances in which they found themselves rather
than their involvement in any direct participation in hostilities on their part.207 Reports that
find that over 90 per cent of all detainees were not captured by US or coalition forces and
that bounties were paid in exchange for handing people over to US authorities raise
numerous questions about the basis for their capture and subsequent detention.208
162. Following the end of active hostilities in an international armed conflict, prisoners of war
must be released without delay unless they are subject to pending criminal proceedings for,
or convicted of, an indictable offence.209 Similarly, civilians are to be released once the
reasons for their detention no longer exist and, at the latest, “as soon as possible after the
close of hostilities”.210 Detainees captured in connection with the international armed
conflict in Afghanistan should therefore have been charged or released once the active
hostilities in that conflict ceased.211 However, from July 2002 to December 2002, only five
detainees were transferred from Guantánamo. In 2003, 88 detainees were transferred from
Guantánamo while 655 people remained in detention.212 To date, only 30 Guantánamo
detainees have been charged, and the charges against 15 of those individuals were dropped
without prejudice.213
163. The continued detention of approximately 79 people apprehended prior to July 2002
amounts to more than 13 years of detention following the end of the international armed
conflict in Afghanistan. While international humanitarian law may allow for a reasonable
period of time to pass before repatriation, ODIHR does not view a period of several years,
or indeed 13 years, to be reasonable. On the contrary, it holds the view that such a period
of time constitutes an “unjustifiable delay”.214 Accordingly, ODIHR considers that the
207
Numerous reports have alleged that many detainees were simply in the wrong place at the wrong time. See, for instance, The
Report of The Constitution Project's Task Force on Detainee Treatment, op. cit., note 183, p. 66; ODIHR interview with Brent
Rushforth, 2 April 2014, where he explained that his client, Abdurrahman Abdallah Ali Mahmoud al Shubati, is a scholar who
went to Afghanistan to teach the Koran, and that there was nothing in his records to justify his detention at Guantánamo; ODIHR
interview with Michael E. Mone, 11 March 2014: Mone explained that after talking with his client, Oybek Jabbarov, it was
apparent that he was simply another one of the Guantánamo mistakes and had been in the wrong place at the wrong time. He had
already lived in northern Afghanistan for two years before the attack in 2001. He got a ride with some soldiers one day who
handed him over to US authorities. Then he was detained for eight years; Resolution P6_TA(2007)0032, “Transportation and
illegal detention of prisoners: European Parliament resolution on the alleged use of European countries by the CIA for the
transportation and illegal detention of prisoners”, European Parliament, 30 January 2007, para. 84,
<http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2007-0020&language=EN>: “all investigations
concluded, as early as the end of October 2002, that Murat Kurnaz posed no terrorist threat”. Kurnaz was apprehended by
Pakistani authorities on a bus during a routine check.
208
Denbeaux, Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees”, op. cit., note 201, pp. 2-3; The
Report of The Constitution Project's Task Force on Detainee Treatment, op. cit., note 183, p. 66.
209
Third Geneva Convention, Arts. 118, 119(5); UN Special Rapporteur on human rights and counter-terrorism, Report to the
General Assembly, A/63/223, op. cit., note 55, para. 21.
210
Fourth Geneva Convention, Arts. 132-133.
211
UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, paras. 22-24.
212
“The Guantánamo Docket”, The New York Times website, op. cit., note 88.
213
This statistic does not differentiate between detainees who were apprehended in the context of, or outside of, the international
armed conflict in Afghanistan. Nevertheless, it illustrates the very small number of individuals who have been charged before the
military commissions in comparison to the number of detainees.
214
API, Art. 85(4)(b); “Customary International Humanitarian Law, Rule 128”, ICRC website, op. cit., note 141.
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