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September 11 - A global human rights agenda
Frequently Asked Questions
SummaryTo date, US forces have transfered more than 150 people captured in Afghanistan to the US naval base at Guantánamo Bay, Cuba. It's been reported that more than 300 additional detainees -- currently being held by US forces in Afghanistan or on US warships -- will soon be transfered to Guantánamo Bay. The prison at Guantánamo Bay is reportedly being expanded to hold as many as 2,000 prisoners. Thousands of prisoners -- described by US Secretary of Defense Donald Rumsfeld as "people that were foot soldiers in the Taliban" --- are being held by the Afghan Interim Authority. The US has also detained hundreds of people in the US who are being questioned about the September 11 attacks. Anyone who may have played a role in grave violations of human rights -- including the September 11 attacks, prior acts of terror directed against the US government, or violations in Afghanistan -- must be brought to justice. Critically, justice requires respect for human rights and the law. The US government and coalition partners must:
[ back to top ] Why are human rights groups making such a big fuss about the legal status of these prisoners? Isn't the important thing to bring to justice whoever was responsible for the September 11 attacks and keep them from doing it again?The September 11 attacks were grave violations of human rights. There are also reports of countless grave human rights violations commited by the Taleban and other armed factions in Afghanistan. Many of these violations were also on a mass scale, including rape of women prisoners. Bringing those responsible to justice will not be simple or fast. Action taken today to investigate and prosecute the crimes of September 11 must contribute to -- and not undermine -- the strenuous and consistent application of the law to bring all those responsible for grave human rights violations to justice. The first step is respect for the law. Due process must be followed whenever someone is detained by police or military. This is Amnesty's position -- and the requirement of international law -- in every circumstance, in any part of the world, whether in peace or war. Due process means:
Even during an official “state of emergency” or times of armed conflict, aspects of the right to a fair trial are still guaranteed under international law. Failure to follow due process in relation to the crimes of September 11 or human violations in Afghanistan means that:
[ back to top ] What's wrong with the US detaining prisoners captured in Afghanistan as "unlawful combatants"?The immediate concern is that there has been no legal process to determine the actual status of prisoners held in Afghanistan or at Guantánamo Bay. The US government has not allowed a legal tribunal to determine whether or not any of the prisoners can be detained as Prisoners of War (PoWs) -- as required under the third Geneva Convention. It appears that the US government has also failed to lay criminal charges against any of the detainees. Unless the detainees are being held as PoWs, or have been charged with a recognizable criminal offense, there is no legal ground for continuing to hold them in captivity. Even under US security legislation introduced in response to the September 11 attacks, people suspected of involvement in "terrorist" activities can not be held for more than seven days without charge. [ back to top ] Why is Amnesty concerned about prisoners being tried before military tribunals?Again, it's a matter of due process and respect for the law. The US president has signed a Military Order allowing special military commissions to try non-US citizens suspected of involvement in "international terrorism." The Military Order creates a parallel and inherently unfair justice system that violates international laws and standards, specifically the International Covenant on Civil and Political Rights. Amnesty International is particularly concerned that the Order:
Amnesty International is particularly alarmed that the death penalty may be imposed by such a tribunal. These measures are not necessary. The government should revoke the Military Order and make a public commitment that anyone charged with crimes related to September 11 will receive a fair trial, regardless of whether or not they are US citizens. [ back to top ] Lives are at stake. What choice does the US government have?It could uphold the law and follow due process. From the Nuremberg Trials to the international tribunals to prosecute war crimes in the former Yugoslavia, there are countless examples of how even mass murder and crimes against humanity can be investigated and prosecuted -- without breaking the law. The attacks on September 11, 2001 amounted to an international tragedy. The victims included people from over 80 countries. And while the identity of the perpetrator(s) is still to be clarified, there is evidence to suggest that they come from several different countries. Any government whose citizens were killed or injuried in the September 11 attacks can use its established criminal justice system to prosecute anyone accused of being involved. In addition, under the principle of universal jurisdiction, all governments have the power -- and the obligation -- to charge and prosecute anyone accused of committing grave human rights abuses anywhere in the world who is likely to escape justice in their own country. (There are also other options. The international community should work to rebuild an impartial justice system in Afghanistan that would be capable of prosecuting grave human rights violations. An international tribunal or special court could also be established.) If US authorities have reason to suspect that any of the detainees played a role in the September 11 attacks -- or other grave human rights violations -- the US government has the power and the obligation to lay recognizable criminal charges and bring the accused before an independent court. [ back to top ]
What if due process is too slow and cumbersome? Isn't it vital to act quickly to protect US security?The real question is, why does the US government feel it's necessary to work outside the law? Or, in other words, what is the US doing now that it couldn't do if it followed due process? Are the prisoners being tortured or ill-treated? Is the US preparing for an unfair and secretive trial? There is absolutely no reason that such abuses would make the investigations any more efficient in the short term. But they might have a serious impact on the longer term effort to fully expose all the factors and people responsible for the September 11 attacks. A fair and transparent criminal prosecution is a vital tool for objectively exposing facts and putting them on the public record. Where there are legitimate security concerns, the court itself can decide to hear certain evidence behind closed doors. But critically, the decision is made by an impartial body, not by a politician or military commander who may have interests of their own in shielding friends and allies from prosecution or preventing embarassing information becoming public. Following due process protects not only the rights of the accused, but also the right of the public to have justice done.
What do you mean, "recognizable criminal charges."People should not be prosecuted on trumped up charges. A recognizable criminal charge is one that can be found in the national criminal code and which does not violate international laws and standards. "Being a member of the Taleban", for example, is not a recognizable criminal charge. [ back to top ] Does Amnesty International believe that captured Taleban and Al Qaeda members are Prisoners of War (PoWs)?This is something for a court to decide, not Amnesty International, not politicians, not military commanders, and not public opinion. Under the third Geneva Convention, all captured combatants must initially be presumed to be PoWs. If the status of any prisoners is in dispute -- which is clearly the case here -- the matter must be brought before a competent tribunal to determine who can continue to be held, and under what grounds. The fundamental purpose of the Convention is to
An independent US court -- or other court -- should determine whether or not the prisoners at Guantánamo are PoWs. This is also the position held by the International Committee of the Red Cross (ICRC), the most authoritative interpreter of the Geneva Conventions. [ back to top ]
Why is their status under the third Geneva Convention important?Under international law, taking up arms in the context of an armed conflict is not in itself an illegal act. Therefore the third Geneva Convention sets out requirements to protect captured soldiers from being tried and punished simply for being members of an enemy army. PoWs cannot be detained indefinitely and must be released and repatriated at the end of "active hostilities" -- unless they are charged with a recognized criminal offense. Denying a PoW a fair trial is a war crime. (See the full text of the third Geneva Convention on the web at: www.unhchr.ch/html/menu3/b/91.htm) It's important for all governments to adhere to the Geneva Convention because:
[ back to top ] Are the Geneva Conventions still relevant?Absolutely. It's important to remember that the Conventions were drafted in response to the horrors of World War II, including genocide and the mass murder of civilians. The Conventions also anticipated many of the characterisics of contemporary armed conflicts, including the deliberate targeting of civilians and the confusion arising when special forces and guerrillas try to blend in with the civilian population. Accordingly, the Conventions establish principles and processes for combatants to be held responsible for crimes such as targeting civilians, while ensuring that soldiers in an international conflict should not be punished simply for serving in an national army or resistance. These core elements of the Geneva Conventions remain as relevant as ever. Like any law, there are specific details in the Conventions that have become outdated. This means governments need to update the law. But it doesn't justify governments arbitrarily ignoring the core principles of the law. [ back to top ]
The allegations against the detainees are extremely serious. If they were found be PoWs, would this mean that they couldn't be prosecuted?Not at all. The Geneva Convention was never intended to shield anyone from legitimate prosecution. In fact, humanitarian law, or the "laws of war", of which the Geneva Convention is an important part, defines a range of offenses for which anyone can and should be prosecuted -- including deliberately targeting civilians. PoWs can be tried for such violations of the laws of war (war crimes) and for other criminal acts committed outside the context of armed conflict. If there are allegations that a prisoner has committed war crimes or other crimes, they should be charged with a recognized offense and be brought before a competent legal tribunal. Like any detainee, a PoW who is suspected of a crime, has a right to legal defense and to a fair trial. Denying a PoW a fair trial is a war crime.
Who doesn't qualify for protection as a PoW?The Geneva Convention generally provides protection for combatants engaged in international conflicts, as well as associated civilians working under a military command structure. The Convention specifically excludes a number of categories of people, including those who have taken up arms solely for the purposes of criminal activities. [ back to top ] If any or all of the prisoners at Guantánamo are not PoWs – as the US government claims– does this mean they have no rights?Again, the question of whether or not they are PoWs needs to be decided by a competent tribunal. But regardless of the tribunal's decision, all prisoners have certain rights under international law which cannot be taken away, regardless of what they have done or are accused of doing. All detainees have the right to challenge the lawfulness of their detention. All detainees have the right not to be tortured. Any detainee who is suspected of a crime must be charged with a recognized criminal offense and tried fairly. All detainees have the right not to incriminate themselves. All detainees must be treated humanely in accordance with international laws and standards.
Amnesty International has growing concerns for the welfare of thousands of prisoners held by the Afghan Interim Authority. Visitors to detention facilities are reporting that prisons are dangerously overcrowded and that prisoners lack adequate food and medicine and are not sheltered from severe winter conditions.
At Shibarghan prison in northern Afghanistan, a team from the organization Physicians for Human Rights has just reported that diseases - including dysentery, pneumonia and hepatitis - are rampant, the water supply is unclean and sanitation is virtually absent (see: A Report on Conditions at Sheberghan Prison, Northern Afghanistan, January 28, 2002 at www.phrusa.org/research/afghanistan/report.html). The facility's commander told the team that "many" prisoners had already died but that he had had "minimal" response from the international community to his requests for help in dealing with the situation. The prison was designed to hold 800 prisoners but currently has more than 3,000.
Under the Bonn agreement, the Afghan Interim Authority is formally responsible for detention facilities. However, under international law, coalitions members including the US and Canada have continuing responsibilities for the welfare of prisoners who were in their custody before being handed over to another party.
Coalition members and the international community must use their influence and provide resources to the Afghan authorities to make sure that prisoners in Afghanistan are treated humanely. It is vital that all detention facilities are open to inspection by independent experts who are able to report publicly and draw attention to serious concerns. Being held prisoner, whether as a criminal suspect or PoW, should not entail risking death by disease and exposure.
Amnesty International is also concerned about alleged ill-treatment of prisoners in transit and in Guantánamo, including reports that they were shackled, hooded and sedated during transfer, that their beards were forcibly shaved, and that they are housed in small cages that do not protect against rain and wind.
According to international standards restraints may be used when strictly necessary. However, if restraints are necessary, they must be applied humanely and with care any restraint, or combination of restraints, does not put the detainee at risk of serious injury.
Sedating prisoners for any reason other than medical treatment is in breach of interntional standards, including Principle 5 of the UN Principles of Medical Ethics.
Hooding suspects in detention may violate international standards prohibiting "cruel, inhuman or degrading" treatment. The standards emphasize that the term "cruel, inhuman or degrading" covers mental as well as physical abuse, including holding detainees in conditions that deprive them, even temporarily, of the use of any of their natural senses such as sight or hearing or awareness of time or place. The hooding or blindfolding of suspects during interrogation also violates international standards.
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