Guantánamo – Eleven Steps to Accountability
(1) Close detention in Guantanamo Bay
Keep thepromise of closing down the detention in Guantánamo Bay and the system ofarbitrary detention it represents.
(2) Transfer or resettlethose cleared for release
Prisoners recommendedfor transfer by the Guantánamo Review Task Force should be transferred to theirhome country, or where this is not possible to a host country or the UnitedStates as fast as possible.
(3) Ensurehuman rights compliant resettlement
In doing so,the United States has to ensure that transfers and resettlements are consistentwith obligations under international human rights law and humanitarian law andtaking into account the informed consent of the individual detainee.
(4) Prosecute in USFederal Court or release
All prisonerswho cannot be transferred to a host country because they are accused of havingcommitted a crime should be transferred to the United States for prosecution infederal court. No prisoner should be kept in detention indefinitely withouttrial in violation of human rights law.
(5) Abolish MilitaryCommission system
Military commissiontrial can only be compatible with international law if it concerns recognizedoffences against the law of war. Almost all of the past, current, and pendingprosecutions before the military commission do not deal with allegedinternationally recognized war crimes or crimes conducted in armed conflicts. Thesystem of sub-standard military commissions has proven both, ineffective and atravesty of justice. It needs to be closed.
(6) Recognize the torturepolicies as unlawful
The US shouldpublicly recognize that the policies contained in the torture memos constituteunlawful practice and amount to a violation of torture, cruel and inhuman, ordegrading treatment. Without a legal confirmation there is no certainty about ano return to these policies. The US should also publish the report of theSenate Investigative Committee on the torture policies to allow proper accountability.
(7) End impunity
The UnitedStates has a positive obligation under international law to investigate allallegations of torture and crimes under international law. Investigationsshould be directed against everyone who authorized, participated in, or wascomplicit in such practices. This includes lawyers and high-level officialsfrom the Bush administration who drafted or authorized the torture memos, andauthorized ‘enhanced interrogation’ technics. This is not a political choice –it is a legal obligation.
(8) Provide remedies and reparations
Everybody whohas been subject to torture, cruel and inhuman, or degrading treatment has theright to a remedy and reparation irrespective of his affiliation. In additionto monetary compensations, reparations should also include symbolic actionssuch as public acknowledgment, public apology or commitment to non-repetitionof torture, and unlawful detentions.
(9) Recognize the role ofhuman rights law
The UnitedStates should revise its legal positions and recognize in line with generalinternational doctrine that human rights obligations of a state applyextra-territorially to situations in which the state in question exerciseseffective control or authority over a territory or a person. In the context ofGuantánamo and other detention outside US sovereign territory this means thatthe United States have to comply with their obligations under internationalhuman rights law because they exercise defacto control over all detainees.
(10) Cooperate withongoing investigations
Cases havebeen lodged in third countries under the principle of universal jurisdictionand before international institutions against US officials, contractors, orthird countries that become complicit in torture, secret detention, or enforceddisappearances. The US should cooperate with these proceedings rather thanexercising pressure on third states, and provide relevant information viamutual legal assistance and extradition.
(11) Ensure intelligence accountability
The system ofenforced disappearances and torture within the secret detention and renditionsprogram has highlighted the lack of effective legal accountability of theintelligence services, especially within their international cooperation. Effective safeguards against complicity intorture through the receipt, demand, and sharing of intelligence information –possible obtained through torture – needs to be put in place. No actor incounter-terrorism, not even the intelligence community, can stay outside thelaw.