Gustavo Capdevila

GENEVA, Oct 31 2005 (IPS) — The United States has locked horns once again with international jurists by continuing to insist that detainees being held for alleged terrorist links at its naval base in Guantánamo, Cuba and dozens of other prisons around the world are not subject to the jurisdiction of international human rights treaties.

The periodic report presented by the U.S. authorities to the United Nations Human Rights Committee, after a seven-year delay, diverges categorically from the opinions of both this U.N. body and legal experts.

The issue under dispute is the application of the International Covenant on Civil and Political Rights, one of the pillars of the U.N. human rights system. It is the responsibility of the Human Rights Committee to monitor compliance with this international agreement on the part of the 154 states that have ratified it.

The report submitted by Washington states that it has reached “the inescapable conclusion” that “the obligations assumed by the United States under the Covenant apply only within the territory of the United States.”

At a meeting held last Monday in Geneva, non-governmental human rights organisations from the United States informed the members of the Human Rights Committee that the U.S. military has around 20 secret detention centres, most of them close to the conflict zones in Iraq and Afghanistan.

The Committee had sent a letter to the U.S. government on Jul. 27, 2004, asking for its periodic report to specifically address the “problems relating to the legal status and treatment of persons detained in Afghanistan, Guantánamo, Iraq and other places of detention outside the United States of America.”

In addition to challenging the concept of extraterritoriality, the U.S. response added that “the legal status and treatment of such persons is governed by the laws of war.”

The U.S. report will most likely be roundly rejected by the Committee, which is made up of 18 independent experts with recognised competence in the field of human rights, and will be wrapping up the last of its three annual sessions this week in Geneva. The issue has provoked conflict between the Committee and U.S. authorities in the past. In its comments on the report submitted by the United States in 1995, the Committee declared that it “does not share the view expressed by the Government that the Covenant lacks extraterritorial reach under all circumstances.”

“Such a view is contrary to the consistent interpretation of the Committee on this subject, that, in special circumstances, persons may fall under the subject matter jurisdiction of a state party even when outside that state territory,” the comments added.

Federico Abreu Guzmán, deputy secretary-general (legal) of the International Commission of Jurists (ICJ), remarked that international judicial authorities unanimously back the Committee’s stance.

Abreu Guzmán told IPS that in addition to the Human Rights Committee, the same position has been expressed by the U.N. Committee on Economic, Social and Cultural Rights, the European Court of Human Rights, and the Inter-American Commission on Human Rights.

He also pointed to the decision adopted by the U.S. Supreme Court itself, which ruled on Jun. 28, 2004 in the case Rasul v. Bush that foreign nationals imprisoned without charge at the Guantánamo naval base were entitled to bring legal action in U.S. civilian courts.

Another international legal expert, Alejandro Teitelbaum, a representative in Geneva of the American Association of Jurists (AAJ), stressed that the Human Rights Committee has already ruled in the past that “it would not make sense to permit a state to perpetrate violations of the Covenant in the territory of another state that could not be perpetrated in its own territory.”

This position was declared by the Committee with regard to the cases of Uruguayan citizens abducted in the 1970s by members of the Uruguayan military in Argentine and Brazilian territory.

These violations were committed outside of Uruguayan jurisdiction, but the state denounced by the victims was Uruguay, Teitelbaum noted.

According to Abreu Guzmán, “There is ample authority at the universal and regional level that human rights treaties apply wherever a state exercises jurisdiction, and that this determination is based on the test as to whether a state exercises effective – not necessarily sovereign – control over a territory.”

“Human rights treaties can therefore also apply extraterritorially, he stressed.

The United States’ interpretation creates a situation that is both absurd and highly advantageous for the U.S. government, Teitelbaum told IPS. For example, the Panamanian civilians bombed during the U.S. invasion in 1989 cannot bring Washington before the U.N. Human Rights Committee “because they were neither in nor reside in U.S. territory,” he observed.

In a message sent in July 2004, the Committee made a series of suggestions and recommendations to the U.S. government regarding implementation of the International Covenant on Civil and Political Rights.

One of them emphasised “the need for the government to increase its efforts to prevent and eliminate persisting discriminatory attitudes and prejudices against persons belonging to minority groups and women, including, where appropriate, through the adoption of affirmative action.”

In its response, the United States referred to the efforts it has made in this respect, but added, “we note that no provision in the Covenant requires the use of ‘affirmative action’ as a governmental policy.”

With regard to capital punishment, the U.S. report maintained that “the use of the death penalty is restricted to particularly serious offences,” and that the U.S. government “takes the position that methods of execution currently employed in the United States do not constitute cruel and unusual punishment under our Constitution.”

The U.S. report will be studied by the U.N. Human Rights Committee, in the presence of an official U.S. delegation, at the session to be held in Geneva next July.

The Committee members will meet again with representatives of U.S. non-governmental organisations in March, during its first 2006 session, at U.N. headquarters in New York.