CAT/C/67/D/813/2017 6.6 Furthermore, the State party claims that the complainant’s allegations are without any merit. 6.7 As regards claims under article 2, the State party objects to the claim that it encouraged or permitted the acts of torture or ill-treatment against the complainant in Guantanamo Bay. The State party never influenced the chain of command, which was at the origin of the complainant’s treatment, and it did not have any means of securing his liberation before his release by the United States authorities on 20 April 2005.14 Moreover, the Belgian authorities were neither directly nor indirectly involved in the complainant’s arrest or his transfer to the United States authorities. The present complaint differs substantially from the cases of Abu Zubaydah v. Lithuania, Al Nashiri v. Romania and El-Masri v. the former Yugoslav Republic of Macedonia,15 in which the States parties concerned exercised their jurisdiction by arresting and handing over the applicants. The fact that the liaison officer of the Belgian Federal Police, Mr. Clareboets, officially interrogated the complainant on three occasions between April 2002 and February 2004 cannot be considered as exercising direct or indirect effective control over the complainant. Moreover, the United States authorities refused the requests for consular visits by the Belgian authorities, with two exceptions, and only accepted visits by the Belgian police, judiciary or secret service. Since further diplomatic efforts were undertaken in order to visit the complainant, the fact that the Belgian authorities did not succeed in obtaining his release cannot be considered as complicity in torture by omission. 6.8 Moreover, the General Counsel sent a letter, dated 12 November 2002, to the United States authorities, accompanied by the request by the complainant’s counsel for clarification of the circumstances of the complainant’s detention and of the guarantees available to him. The United States Department of State avoided the questions and responded only generally that all “enemy combatants” were treated humanely, and in a manner consistent with the principles of the Geneva Conventions of 1949, and that the International Committee of the Red Cross could visit them individually and privately on a regular basis. The State party claims that conditions of detention similar to those of the complainant were not publicly known about at the end of 2002. 6.9 The State party admits that the absence of access to a legal counsel and the detention of the complainant without prosecution could appear as a violation of the right to a legal defence. However, the State party could not be held accountable for complicity in the acts of torture. The creation of a category of “enemy combatants”, outside the framework of the Geneva Conventions, did not deviate from the provisions of the Third Geneva Convention of 1949 (arts. 99–108). The individual is either a prisoner of war16 or a prisoner (detainee) under the general law. It would be unrealistic to expect that Belgium could force the United States to change this doctrine, which had already been heavily criticized. The State party was not in a position to have required that the United States ensure access of the complainant to a legal counsel, and its authorities could only seek information from their counterparts about the developments in the complainant’s situation, while seeking guarantees of his rights. 6.10 In its response of 16 March 2004, the Belgian Ministry of Foreign Affairs described its efforts to ensure consular assistance, which had included discussion of a possible return to Belgium of the complainant and one other national detained in Guantanamo Bay, monitoring the medical conditions of the complainant and requesting his access to a dentist. In its letter of 11 August 2004, the Belgian Ministry of Foreign Affairs confirmed that the complainant’s repatriation was under discussion, without mentioning any possible extradition, and stated that he was not on the list of persons to be transferred to Morocco. The complainant’s chances of being transferred back to Belgium increased following the judgment of the Supreme Court of the United States in the Hamdi case. As confirmed by the Belgian Ministry of Foreign Affairs on 13 December 2004, “an Administrative Review Board 14 15 16 The State party argues that the Amnesty International report denouncing the detentions in Guantanamo Bay, outside civil jurisdiction, is dated 25 May 2005, after the complainant’s release. Respectively: application No. 46454/11, judgment of 31 May 2018; application No. 33234/12, judgment of 31 May 2018; and application No. 39630/09, judgment of 13 December 2012. The Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) does not guarantee to a prisoner of war the right to be assisted by legal counsel, unless he or she is prosecuted. 7