Inmates of Guantanamo Bay - Cuba

September 03

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In March 2004 - Tarek Dergoul, Shafiq Rasul, Ruhal Ahmed, Jamal Udeen and Asif Iqbal are released from Guatanamo Bay without charge. They returned to the UK, where they were questioned and released without charge.

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Shafiq Rasul (24), Moazzem Begg (35), Feroz Abbasi (23) and 6 other Britons, one Spaniard, 6 Frenchmen and one Swede are amongst those detained indefinitely by the US government in Guantanamo Bay.

The Whitehouse statement of February 2002, according to which detainees were given the unknown legal status of "unlawful combatants”, has led to public uproar, not only in countries in the European Union but across the world. It has also provoked debate by legal scholars but for many months there was noticeably little action from the protective powers of the governments of these detainees. Reports of detainees being held in conditions of isolation and accounts of torture have resulted in growing unease over the lack of information about the reasons for holding over 650 people in a camp with no legal identity. The camps at Guantanamo Bay do not come under Cuban jurisdiction, although based in Cuba, nor under normal US jurisdiction although created and run by American authorities. Thus they are in a legal "black hole".

Academic debate has focused on the legal status of the detainees in the light of the Geneva Convention in relation to the treatment of Prisoners of War (POWs). While the sequence of events seems to make it clear that the attacks on US territory created an international armed conflict between the US and Afghanistan, the US have refused to make the 1949 Geneva Convention applicable. Simply put, when a lawful combatant is captured or surrenders, his status as a POW is automatic, regardless of the circumstances or the detaining power's evaluation of events. Specific treatment and conditions of detention are laid down by the Convention. However, POW status does not mean that the detainee is automatically excluded from charges of war crimes prior to capture. Therefore, subject to evidence, detainees could be prosecuted if they are suspected of being involved in the events of 9/11.

One of the detainees, a US citizen, was tried in an American court of law with full rights afforded. Such justice has been denied to all other detainees as they are not US citizens.

Fair Trial Issues

Recently, President Bush announced that six prisoners, including two Britons and one Australian, had been "designated" to be brought to trial by a military commission. In other words, they would be prosecuted, defended, judged and sentenced by the same authority that captured them and has kept them incarcerated for almost two years. Under the circumstances, the detainees' right to be presumed innocent until proven otherwise appears to be on very shaky grounds.

However, following Prime Minister Blair's meeting with President Bush on 17 July 2003, the British Attorney General has held talks with senior representatives of the US Department of Defence, the Department of State, the Department of Justice and the White House.

Regarding the Military Commissions, the US has assured him that:

• The prosecution will not seek the death penalty in the cases of Feroz Abbasi and Moazzem Begg. It is unknown what will happen to other EU citizens should they ever be brought to trial.
• Begg and Abbasi will have representation by a US civilian lawyer of their own choosing, subject to security clearance. They will also be able to appoint a UK lawyer to serve as a consultant on the defence team. The detainees will be able to decide to what extent he wishes the appointed military counsel to participate in the preparation of his case.
• Exceptionally, conversations between Begg or Abbasi and his defence counsel will not be monitored or reviewed by US authorities.
• Subject to any necessary security restrictions, the trials of Begg and Abbasi will be open and the media free to attend.

Members of the European Parliament, particularly those with constituents in Guantanamo Bay, are not happy that concessions may be granted for some but not others. Neither is FTA. In our capacity as the appointed co-coordinators of the campaign for the rights of the EU citizens, we hope that there will be no further discrimination and that all detainees will be brought promptly to trial in an open court with all rights due to them under international law. A public hearing of the European Parliament will be devoted to this matter on 30 September in Brussels.

It is perhaps worth remembering the words of Justice Chaskalson, President of the Constitutional Court of South Africa:

"It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can secure that our own rights will be protected."