Assessing Damage, Urging Action have subjected detainees to punishments, or to more severe sentences, than those applicable to their own military personnel.124 Most Guantánamo Bay detainees will have spent an inordinately prolonged period – in many cases more than seven years – in arbitrary detention, facing repeated interrogation, without having had effective assistance of legal counsel. This denial of proper legal representation is illustrated by the fact that the so-called fourteen “high value detainees” never had access to counsel until well after their transfer to Guantánamo Bay.125 Those charged with offences under the MCA are deemed “unlawful enemy combatants”. According to the outgoing US administration, even if the accused are acquitted of the charges, or even after they have served sentences for any conviction, they may still be detained, virtually indefinitely, on the grounds that this prevents them from “returning” to the battlefield. The Panel was disturbed to hear that two of the first persons charged before the military commissions were children at the time of their alleged offences: Omar Khadr and Mohammed Jawad. As one of Mr Khadr’s counsel affirmed to the Panel at the US Hearing, the trial of an alleged child offender for war crimes was probably unprecedented, and certainly incompatible with international human rights and humanitarian law standards.126 5.3 Torture and ill-treatment The prohibition of torture and other cruel, inhuman or degrading treatment and punishment is absolute under both treaty and customary law, and is a peremptory norm of international law which applies at all times and in all places. Where IHL is applicable, Common Article 3 of the Geneva Conventions provides for the minimum standard of treatment. Despite these clear legal prohibitions, and pursuant to the legal misconceptions about the “war” on terror, the outgoing US administration issued a number of now infamous legal memoranda.127 In a memorandum on deten- 124 Articles 82 and 102 of the Third Geneva Convention. 125 On 6 September 2006, US President Bush announced the transfer of fourteen so-called “high value detainees” including the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, from CIA custody in an undisclosed location to confinement at the Defense Department’s detention facility in Guantánamo Bay. 126 Under the Optional Protocol to the Convention on the Rights of the Child, which the US ratified in 2002, States are to provide children with “all appropriate assistance for their physical and psychological recovery and their social reintegration.” (Article 7, para. 1). See also written submissions by Professor Richard J Wilson, Director of the International Human Rights Law Clinic, Washington College of Law, American University, EJP United States Hearing. 127 See, for example, the memorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney-General for the Office of Legal Council at the Department of Justice, to Alberto Gonzales, then Counsel to the President of the United States, which attempts to significantly narrow the definition of torture, and claims that the necessity of self-defence can justify violations of the law prohibiting the use of torture. The memorandum was in effect until superseded by a Department of Justice memorandum dated 30 December 2004. For a list of publicly known Government memos, see http://www.humanrightsfirst.org/us_law/etn/gov_rep/ gov_memo_intlaw.html. 61