Search News
USA: Letter to President Bush - Children in Guantánamo Bay
April.24.2003
George W. Bush
The President
The White House
1600 Pennsylvania Avenue
Washington DC 20500
USA
24 April 2003
Dear Mr President
I am writing to express our deep concern at reports that several children are among the more than 600 detainees being held in the US Naval Base in Guantánamo Bay. We have written to your government on several occasions since the detainee transfers to the Naval Base began more than a year ago, and deeply regret that our concerns have gone unanswered and unremedied. While we continue to seek such remedies, under international law and standards, for the adult prisoners, we are now urgently requesting your assurances that the USA will abide by its international obligations in relation to these young detainees.
The reports indicate that a “handful” of children, described as beingbetween the ages of 13 and 15 years old, have been “discovered” by the authorities in Guantánamo. It is reported that the children were transferred, possibly from the Air Base in Bagram, earlier this year. We further note that a 16-year-old Canadian national, Omar Khadr, was transferred in late 2002 from Afghanistan to the Guantánamo Naval Base. We are concerned by reports indicating that it took six months for even the Canadian government to have access to him. Along with all the other detainees, he remains without access to legal counsel or his family.
International law and standards recognize the particular vulnerability of children and require, among other things, that children should be detained only as a last resort and for the shortest time possible. When in detention, children must be fully protected according to their general and special needs. We note reports that at least some of the children are not being held in isolation cells. However, we would emphasise that the definition of a “child”, according to most international legal standards, is anyone under the age of 18. We would urge therefore that all necessary protections and safeguards be extended to all children, including any 16 and 17 year olds who may be held in the Naval Base, including Omar Khadr.
We are further concerned at reports indicating that the child detainees may be subjected to interrogation without access to any legal representatives. Article 40 of the Convention on the Rights of the Child states that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”. Article 39 of the Convention stresses that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a last resort and for the shortest appropriate period of time”.
The USA signed the Convention on the Rights of the Child in 1995, thereby binding itself under international law not to do anything to defeat the object and purpose of the treaty pending a ratification decision.
It seems something of an irony that the USA, one of the first countries to ratify the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, is now treating these children in a way that undermines fundamental protections under the body of the main treaty itself. We note that the Optional Protocol welcomes the “overwhelming support for the Convention on the Rights of the Child, demonstrating the widespread commitment that exists to strive for the promotion and protection of the rights of the child”, and that it reaffirms “that the rights of children require special protection” and calls “for continuous improvement of the situation of children”. We also note that Article 6 of the Protocol provides that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.”
We further note that Article 3 of the Convention states that “the best interests of the child shall be a primary consideration” in all decisions and procedures concerning children. We submit that transporting children to the US Naval Base in Guantánamo Bay and holding them in indefinite prolonged untried detention, without access to a court or to any representatives acting on their behalf, fails to meet this obligation.
We continue to be concerned for all of the Guantánamo detainees, who are held without access to the courts, to relatives or to lawyers. Some have been held for more than a year in this legal limbo, not knowing when or if they will be charged, tried or released. We regret your government’s selective approach to the Geneva Conventions and that none of the Guantánamo detainees has been presumed to be a prisoner of war pending decision by a competent tribunal in cases where the status may be a matter of dispute.
The USA’s failure to abide by international humanitarian law does not leave the detainees unprotected. As we have stated in our previous communications, it is a fundamental principle of international human rights law that anyone deprived of his or her liberty be allowed to challenge the lawfulness of their detention in a court of law. We further point out that in December 2002, the United Nations Working Group on Arbitrary Detention noted that where prisoner of war status is not recognized, “the situation of detainees would be governed by the relevant provisions of the [International Covenant on Civil and Political Rights] and in particular by Articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial”.
Article 9.4 of the International Covenant on Civil and Political Rights (ICCPR) states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. The Human Rights Committee has stressed that this “important guarantee... applies to all persons deprived of their liberty by arrest or detention”. Indeed, it has stated that this right is non-derogable, even in states of emergency.
Article 2(1) of the ICCPR states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind”, including on the basis of national origin. The Human Rights Committee has stated: “The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction” (emphasis added).
We recall that last month Secretary of State Powell, releasing the State Department’s reports on human rights practices in other countries, referred to “the steadfast commitment of the United States to advance internationally agreed human rights principles worldwide”. We urge that your government acts on such sentiments in relation to the Guantánamo detainees.
We would be grateful to be informed of how many detainees under the age of 18 are currently detained in Guantánamo Bay in Bagram Air Base and of the circumstances and conditions under which all of them are held.
We call for all under-18-year-olds held in Guantánamo to have immediate access to lawyers and their families. They should be promptly charged and tried within a reasonable time in accordance with fair trial standards, or released into appropriate and safe circumstances.
Finally, I would like to take this opportunity once again to reiterate our request for Amnesty International delegates to have access to Guantánamo Bay and Bagram Air Base to visit officials and detainees there.
I thank you for your serious consideration of this letter and await your response.
Yours sincerely
Irene Khan
Secretary General
cc. Secretary of Defence Donald Rumsfeld
Secretary of State Colin Powell
Search