83.
The United States’ narrow definition of torture and its exclusion of ill-treatment in its
application of the principle of non-refoulement may increase the likelihood that
Guantánamo detainees will be transferred to a state where they will be tortured or illtreated. The United States maintains that it would not transfer a detainee in violation of this
principle, and has taken actions to resettle some detainees in third countries rather than
transferring them to their home country, due to unstable conditions or risks of torture or
persecution.
84.
Information gathered by ODIHR suggest that the US government relies heavily on
diplomatic assurances, which are surrounded by lack of transparency and secrecy, and the
absence of an independent, impartial and effective review of these assurances by a
competent judicial authority. Additionally, the United States typically does not provide
information on the safeguards and monitoring procedures agreed to in diplomatic
assurances. The United States likely violated its international legal obligations on nonrefoulement by forcibly transferring some detainees to states allegedly practicing torture
and ill-treatment. The lack of an effective, transparent and impartial review of the decisions
to transfer detainees also violates the United States legal obligations under this principle.
Accountability And Redress
85.
Accountability for torture and ill-treatment. At the time of this report, impunity
continues for human rights violations committed in the CIA RDI programme and in the
detention and treatment of detainees at the Guantánamo Bay detention facility. The US
government has thus far failed to hold perpetrators accountable and to comply with its
obligations under the ICCPR and CAT to conduct prompt, independent, impartial,
thorough and effective investigations and subsequent prosecutions.
86.
Particular areas of concerns in contradiction with international law include the limited
scope of acts that may be prosecuted as torture and ill-treatment offences, the reliance on
statutes of limitations which now likely bar investigations into cases of torture and illtreatment allegedly perpetrated before 2006, and certain legislative provisions that may
still be used to negate criminal liability for subordinates involved in acts of torture.
87.
Although the US government guarantees that all allegations of abuse, including allegations
of historical abuse, are now investigated immediately, the majority of US investigations
into such abuses at Guantánamo were not prompt, independent, impartial, thorough and
effective. This may amount to a violation of the duty to conduct investigations as
prescribed under international law. Only one US official was prosecuted before a courtmartial and none at the federal level, which raises serious concerns about perpetrators of
acts of torture not being held accountable and not given penalties reflecting the grave
nature of their acts as required under international law.
88.
Despite US government admissions that US officials committed acts of torture and illtreatment as part of the CIA RDI programme, numerous allegations of torture, welldocumented cases and international court decisions, the United States has not yet
undertaken prompt, independent, impartial, thorough and effective investigations or
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