UN TELLS BUSH TO CLOSE GITMO - BUT WHAT TO DO WITH PRISONERS?

by William Fisher

(IPS) -- Foreign policy and human rights experts appear to agree with a United Nations report calling on Washington to shut down its detention facility at Guantanamo Bay, Cuba, but most believe that simply closing it misses a larger point: What to do with the prisoners?

And many of those interviewed by IPS are fearful that the Bush administration will use the source of the report -- the admittedly flawed United Nations Human Rights Commission -- to discredit its findings.

Currently in draft form but expected to be released shortly, the report found that U.S. treatment of Guantanamo detainees violates their rights to physical and mental health and, in some cases, constitutes torture. It urges the U.S. to close the facility and bring the captives to trial on U.S. territory, charging that Washington's justification for the continued detention is a distortion of international law.

Compiled by five UN envoys who interviewed former prisoners, detainees' lawyers and families, and U.S. officials, the report is the result of an 18-month investigation ordered by the Commission.

The human rights body has been widely criticized because its 53 members include representatives of countries with questionable human rights records. These include Azerbaijan, China, Cuba, Egypt, Saudi Arabia and Zimbabwe. The U.S. has been among UN member states attempting to reform the Commission, denying membership to countries that are known to commit human rights abuses.

While the UN team was refused access to prisoners at Guantanamo Bay -- and did not visit the facility for that reason -- it concluded that the force-feeding of hunger strikers, incidents of excessive violence used in transporting prisoners and combinations of interrogation techniques "must be assessed as amounting to torture."

"We very, very carefully considered all of the arguments posed by the U.S. government," said Manfred Nowak, the UN special rapporteur on torture and one of the envoys. "There are no conclusions that are easily drawn. But we concluded that the situation in several areas violates international law and conventions on human rights and torture."

Nowak, a member of the International Commission of Jurists, is professor of constitutional law and human rights at the University of Vienna and director of the Ludwig Boltzmann Institute of Human Rights. Since 1996, he has served as a judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo.

Human rights and legal advocates hope the UN's conclusions will add weight to similar findings by rights groups and the European Parliament.

Prof. Erwin Chemerinsky of the Duke University Law School shares that hope. He told IPS, "I believe that the existence of the prison in Guantanamo and the treatment of the detainees there violates international law."

"However, if the base at Guantanamo should be closed, it is essential that something worse not replace it. For example, it would be much worse if the prisoners are then transferred to prisons in foreign countries beyond American courts' jurisdiction," he said.

This view was echoed by Gabor Rona, international legal director of Human Rights First (HRF), a New York-based advocacy group. "Whether or not Guantanamo stays open or is closed addresses only one symptom of a larger question: What will happen to the detainees?" he said in an interview.

"If closure means the U.S. is going to open up its legal environment to respect international human rights norms not only at Gitmo but in all its detention facilities worldwide, that would be a step forward. If closing Gitmo simply means shipping the detainees off to other places and fates where their rights continue to be violated, that would be no step at all."

Prof. Jonathan Turley of Georgetown University and a widely recognized authority on U.S. Constitutional and international law, told IPS, "Closing Gitmo would be a welcomed change. However, it will mean little if the underlying abuses continue at a dozen less visible locations."

"The problem is the underlying legal claims of the president and the continued failure of the government to comply with domestic and international law. The most important recommendation is that these individuals be given legitimate trials in federal court rather than the meaningless proceedings held at Gitmo."

Experts interviewed by IPS think there is a good possibility that the Bush administration will try to use the troubled composition of the UN Human Rights Commission to discredit or dismiss the findings of the report.

"I suspect the administration will try to use this as a rationale for questioning the report's veracity, or at least credibility," said Patricia Kushlis, a retired U.S. Information Agency officer and a specialist in international politics, public diplomacy and national security. "Whether it will stick or not is another question."

Barbara J. Olshansky, director counsel of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights (CCR), said that, "Although the full membership of the UN Human Rights Commission includes states with less than ideal human rights records, the report that we have seen is being issued by unimpeachable sources."

She noted that the five individuals who prepared the report are the "foremost authorities" on the issues addressed in the report. "They have no role or responsibility for the actions of their home governments."

In November, the Bush administration offered three of the five members of the UN team the same tour of the prison given to journalists and members of Congress. But it refused to give the envoys access to prisoners, and for this reason the UN group declined the visit.

Christopher J. Roederer, associate professor of Law at the Florida Coastal School of Law, told IPS, "I do think that Gitmo should be closed, or fully opened up to inspection/access by the UN, Red Cross/Crescent and other international human rights organizations."

"The main problem with the report in my view is that there was no visit and no access to the prisoners -- but whose fault is that? Did we accept Saddam (Hussein's) assurances that there were no WMDs on his say-so? Did we not hold his lack of full cooperation against him?"

The report focuses on the U.S. government's legal basis for the detentions as described in its formal response to the UN inquiry: "The law of war allows the United States -- and any other country engaged in combat -- to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment, but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States."

But the UN team concluded that there had been insufficient due process to determine whether the more than 750 people who had been detained at Guantanamo Bay since January 2002 were "enemy combatants," and determined that the primary purpose of their confinement was for interrogation, not to prevent them from taking up arms. The U.S. has released or transferred more than 260 detainees from Guantanamo Bay.