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limitations, the report should be seen as a preliminary survey of international human rights law
relating to the detainees in Guantánamo Bay. In accordance with usual practice, the
United States Government was provided with a draft of this report on 16 January 2006. In its
reply of 31 January 2006, the Government requested that its response be attached to the finalized
report (see annex). A number of revisions were made to the draft report in the light of the
Government’s reply of 31 January 2006.
5.
According to the information provided by the United States Government as
of 21 October 2005, approximately 520 detainees were held in Guantánamo Bay. From the
establishment of the detention centre in January 2002 until 26 September 2005, 264 persons were
transferred from Guantánamo, of whom 68 were transferred to the custody of other
Governments, including those of Pakistan, the Russian Federation, Morocco, the
United Kingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had
designated 17 detainees eligible for trial by a military commission. Of those, the United States
has since transferred three to their country of origin, where they have been released. As of the
end of December 2005, a total of nine detainees had been referred to a military commission.2
I. THE LEGAL FRAMEWORK
A. Human rights and counter-terrorism measures
6.
Following the 11 September 2001 attacks on the United States of America, the
Security Council adopted resolution 1373 (2001) requiring all States to take a wide range of
legislative, procedural, economic, and other measures to prevent, prohibit and criminalize
terrorist acts. The preamble of the resolution reaffirms “the need to combat by all means, in
accordance with the Charter of the United Nations, threats to international peace and security
caused by terrorist acts”.
7.
In subsequent resolutions, the Security Council, as well as the General Assembly, while
recognizing the importance of the fight against terrorism, called for all “States [to] ensure that
any measure[s] taken to combat terrorism comply with all their obligations under international
law, in particular international human rights, refugee and humanitarian law”.3 This fundamental
principle has been reaffirmed by the Secretary-General,4 the High Commissioner for Human
Rights5 and the Commission on Human Rights, which has called on all relevant special
procedures and mechanisms of the Commission, as well as the United Nations human rights
treaty bodies, to consider, within their mandates, the protection of human rights and fundamental
freedoms in the context of measures to combat terrorism.6
B. The obligations of the United States of America under international law
8.
The United States is party to several human rights treaties relevant to the situation of
persons held at Guantánamo Bay, most importantly the International Covenant on Civil and
Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Convention against Torture) and the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD).7 On
5 October 1977, the United States signed the International Covenant on Economic, Social