them did not meet the MON standard for detention. “High-value detainees” were held in
incommunicado detention under the RDI programme from periods of 16 months up to
almost four and half years, placed in solitary confinement, outside any judicial control and
the protections afforded under both international humanitarian and human rights law,
including the right to challenge the lawfulness of their detention, to have access to a
counsel or notify their relatives and to exercise other applicable rights. Accordingly, the
CIA RDI programme violated both international humanitarian law and human rights law
that prohibit the use of enforced disappearances and unacknowledged detention as well as
arbitrary arrest and detention.
48.
Detainees were also subjected to “varying degrees” of interrogation techniques (including
techniques that had not yet been legally sanctioned or went beyond what was authorized)
approved by the Bush administration. Most of those techniques, whether inflicted
individually or in combination, undoubtedly amounted to torture or ill-treatment. While
some of the techniques, taken individually, may not have reached the threshold of torture,
their use in combination and over prolonged periods of time to create discomfort and to
“break” the detainees has constituted ill-treatment or even torture. President Obama’s
Executive Order to close any remaining CIA detention facility and prohibit any such
detention facility in the future is a positive development, though it may still allow the CIA
to detain individuals on short-term basis before transferring them to third countries for
interrogation or trial.
49.
Involvement of other OSCE participating States in the CIA RDI programme. Fiftyfour countries, including 27 OSCE participating States, reportedly participated in various
forms in the CIA RDI programme. They “knew or ought to have known” that the detainees
faced a real risk of torture, ill-treatment or arbitrary detention when transferring individuals
into US custody, at least from 2002-2003 when information on that programme became
publicly available. Their responsibility as accomplice under international law is engaged in
that regard.
HUMAN RIGHTS ISSUES
COMMISSIONS
IN THE
PROSECUTION
OF
INDIVIDUALS
BEFORE
MILITARY
Jurisdiction of the Military Commissions
50.
Some detainees have been charged with violations of the laws of war for conduct that
likely occurred outside any armed conflict. Therefore, such detainees are civilians and
could not be classified as either a combatant or even a civilian directly participating in
hostilities.
51.
The trials of civilians by the Guantánamo military commissions, including civilians who
did not directly participate in hostilities, are neither “exceptional” nor “necessary and
justified by objective and serious reasons”, as interpreted by international human rights
bodies. On the contrary, US ordinary federal courts are and have been considered as
appropriate venues to conduct trials for alleged violations of the law of war, able to protect
classified information as well as the safety and security of all participants in trials. The
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