E/CN.4/2006/120
page 4
Introduction
1.
The present report is the result of a joint study conducted by the Chairperson of the
Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges
and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment, the Special Rapporteur on freedom of religion or belief and the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health (the right to the highest attainable standard of health or the right to
health).
2.
Since January 2002, the five mandate holders have been following the situation of
detainees held at the United States Naval Base at Guantánamo Bay. In June 2004, they decided
to continue this task as a group because the situation falls under the scope of each of the
mandates. The focus of each mandate holder is on the law, allegations and recommendations
relevant to his or her mandate as defined by the relevant resolutions of the Commission on
Human Rights establishing the respective mechanism. However, the mandate holders consider
that they can better discharge their reporting obligations to the Commission by submitting
one joint report on this subject rather than five individual reports.
3.
In studying the situation, they have continuously sought the cooperation of the
United States authorities and on 25 June 2004, they sent a letter, followed by several
reminders, requesting the Government of the United States of America to allow them to visit
Guantánamo Bay in order to gather first-hand information from the prisoners themselves. By
letter dated 28 October 2005, the Government of the United States extended an invitation for a
one-day visit to three of the five mandate holders, inviting them “to visit the Department of
Defense’s detention facilities [of Guantánamo Bay]”. The invitation stipulated that “the visit
will not include private interviews or visits with detainees”. In their response to the Government
dated 31 October 2005, the mandate holders accepted the invitation, including the short duration
of the visit and the fact that only three of them were permitted access, and informed the
United States Government that the visit was to be carried out on 6 December 2005. However,
they did not accept the exclusion of private interviews with detainees, as that would contravene
the terms of reference for fact-findings missions by special procedures and undermine the
purpose of an objective and fair assessment of the situation of detainees held in
Guantánamo Bay. In the absence of assurances from the Government that it would comply with
the terms of reference, the mandate holders decided on 18 November 2005 to cancel the visit.
4.
The present report is therefore based on the replies of the Government to a questionnaire
concerning detention at Guantánamo Bay submitted by the mandate holders, interviews
conducted by the mandate holders with former detainees currently residing or detained in France,
Spain and the United Kingdom1 and responses from lawyers acting on behalf of some
Guantánamo Bay detainees to questionnaires submitted by the mandate holders. It is also based
on information available in the public domain, including reports prepared by non-governmental
organizations (NGOs), information contained in declassified official United States documents
and media reports. The report raises a number of important and complex international human
rights issues. In view of the fact that an on-site visit was not conducted and owing to page