Martin Scheinin, the United Nations Special Rapporteur "on the promotion and protection of human rights and fundamental freedoms while countering terrorism", visited the United States during the course of May. After a ten-day fact-finding visit, Scheinin released a report systematically criticising various aspects of US counterterrorist policy.
During his visit, Scheinin observed a day of the trial in Miami against Jose Padilla. However, the rapporteur was disappointed that he was unable to visit the detention facility at Guantánamo Bay, because US officials have not permitted him private interviews with the detainees. This condition is fundamental to the work of many UN rapporteurs. The UN's rapporteur on torture, Manfred Nowak, has also been frustrated in his attempts to visit Guantánamo by American resistance to allowing unmonitored interviews.
While reminding US authorities of their country's long tradition of respect for human rights and individual liberties, Scheinin observes with more hope than conviction that the United States "still has a great deal to be proud of."
A summary of the report can be found below. Read the full report here.
International law
Scheinin insists that the "war on terror" is only a war in "rhetorical terms". Yet, even were one to accept the US position that the struggle against al-Qaida and other Islamist terrorists around the word does indeed constitute a "war", "international human rights law continues to apply". Accepting international humanitarian law is not enought; "the United States must comply not only with the Geneva Conventions, but also with applicable international human rights law".
The United States has also lodged a number of reservations to agreements like the International Covenant on Civil and Political Rights and the Convention Against Torture that undermine the object and purpose of the treaties. International bodies, including the Human Rights Committee and the Committee Against Torture, have called on the Bush administration to withdraw those reservations which contravene the treaties (as such reservations are not permissible under international law).
Guantánamo
Scheinin describes the term used by US officials to categorise the detainees at Guantánamo Bay - "alien unlawful enemy combatants" - as a "description of convenience only, without legal effect". Furthermore, the tribunals that decide whether detainees are "enemy combatants" or not - the Combatant Status Review Tribunal and Administrative Review Board - are only subject to limited judicial review; outside courts can only order a reconsideration of a decision, not secure a release. This contravenes the International Covenant on Civil and Political Rights, which the United States has signed.
Regarding the closure of Guantánamo, which President George W. Bush has hinted towards, Scheinin warns that the "principle of non-refoulement" must be maintained in returning former detainees to their home countries. The United States has drawn much criticism in recent years for allegedly violating the principle of non-refoulement by sending prisoners to countries where they have been tortured and killed.
Afghanistan and Iraq
There are over 18,000 detainees held in Iraq and at least 700 in Afghanistan under the same murky legal status as those in Guantánamo. Scheinin reminds US officials that those "detainees also have a right to a fair trial within reasonable time if suspected of a crime or, failing this, to release".
Military commissions
The US Supreme Court in the 2006 ruling Hamdan v Rumsfeld described the military commissions used by the United States since 2001 as "unconstitutional". However, this ruling was trumped by the subsequent Military Commissions Act passed by Congress in the same year. Scheinin laments the passing of the act, and goes on to question the legal justifications offered for military tribunals, doubt the independence and impartiality of their rulings, and express concern regarding the use of evidence gathered through "coercion".
Freedom of the press
Scheinin also noted that in the United States' criminalisation of "incitement to terrorism", it should be careful in its use of terms like "glorifying" or "promoting" terrorism, as these are vague and can be interpreted loosely in order to limit legitimate freedom of expression.
