MODULE: RULE OF LAW AND FAIR TRIAL ACTIVITY: GUANTANAMO BAY

MODULE: RULE OF LAW AND FAIR TRIAL ACTIVITY: GUANTANAMO BAY Source: : BBC, http://www.bbc.co.uk/worldservice/people/features/ihavearightto/index.shtml 1

INTRODUCTION Following the military campaign in Afghanistan in late 2001, the US impri-soned far more than 600 men from more than 40 countries in a camp part of its naval base in Guantanamo Bay, Cuba. Labelled unlawful enemy comba-tants, they were interrogated by the US about their suspected involvement in the Al-Quaeda network. 188 suspects were repatriated, whereas the rest are still being held indefinitely in military custody at Guantanamo Bay with no formal criminal charges brought against them. The US actions regarding the prisoners were condemned by numerous governments and NGOs, in particular the physical conditions of the camp and staff s treatment of priso-ners. The US denies it uses torture. Article 10 of the UDHR requires the US to prove its responsibility for this act through a fair public hearing by an independent tribunal. The US is yet to try the prisoners. The US Supreme Court ruled that those held can challenge their detentation with the effect that detainees are starting to have their cases re-examined by a military tribunal. TYPE OF ACTIVITY discussion GENERAL INFORMATION ON THE ACTIVITY - AIMS AND OBJECTIVES To identify the notion of a fair (and public) trial to develop analytical skills to elaborate different notions of prisoners (POWs, convicted criminals, unlawful enemy combatants - TARGET GROUP: young professionals, adults - GROUP SIZE/SOCIAL ORGANISATION: 10 to 15 - TIME: 1 to 2 hours - MATERIAL: handouts, paper, pens, VCR/DVD, Laptop/beamer - PREPARATION: Prepare copies of Article 10 of the UDHR as well as multiple copies of the BBC-case study on Guantanamo Bay. Arrange chairs in a circle. Videos/new coverage on this topic can be found online on the website of the news agencies or news channels such as BBC, CNN, - SKILLS INVOLVED Critical thinking Analytical skills communication skills opinion building expressing different opinions and points of view on an issue Respect for different opinions 2

SPECIFIC INFORMATION ON THE ACTIVITY - INTRODUCTION TO THE TOPIC The activity aims at the controversial treatment of prisoners by the US in a camp in Guantanamo Bay. The focus on the discussion will lie on five interconnected issues: prisoner status, legal outer space, right to counsel and trial, camp conditions and prisoners protest. - ACTIVITY PROCESS Introduce the topic by showing the participants a brief video tape of media coverage of the Guantanamo Bay case. Now ask the group for their immediate reactions and impressions of the US-treatment of the captives held in Guantanamo Bay. After 15-20 minutes, ask the group to split up into smaller groups of up to five people group per group. Give each group a few copies of Article 10 and of the BBC case study and ask them to work out statements endorsed by all members of the sub-groups. These discussions will be a good way for the participants to discover what their attitudes to the Guantanamo Bay issue are. Emphasise throughout the discussion part of the activity, that the group should also seek to explore and analyse issues for themselves, as well as only knowing the facts. If you wish, you can note some arguments on a flip chart to sum up the discussion. - DISCUSSION QUESTIONS Are military tribunals necessary in times of war? What rights of the prisoners (they are neither POWs nor convicted criminals) were violated? What do you think can be done to prevent similar actions (i.e. Guantanamo Bay) from happening? Should everybody be considered innocent until proven guilty? Why is Guantanamo Bay considered legal equivalent of outer space? - FEEDBACK Spend time at the end of the activity to talk over what people learnt and how they see it relating to their own lives (if at all), their community and the world. The participants will learn more from their experiences if they are given the opportunity to reflect on what happened and what they have learned. Continue by inviting each group to present their results. Conclude by reviewing how participants enjoyed the activity and collect suggestions for improvement. Depending on the age group of the participants, you might not want to conduct the feedback round through discussion, but employ other techniques, for example body language, drawing, sculpting, etc. - METHODOLOGICAL HINTS Dividing participants into smaller groups provides greater opportunities for participation and co-operation and invites more timid group members to voice their views. Small groups can encourage relating personal experience to abstract concepts. - TIPS FOR VARIATION If you work with young adults and not with young professionals, you can omit a strict legal analysis of the issues. Since this activity is based on intellectual input, you could continue 3

with follow-up activities testing creative skills perhaps a visual representation (no words) of the case or a pantomime play. - FOLLOW UP Invite a representative of Amnesty International or Human Rights Watch to meet the group and ask the guest to present not only the work of his/her organisation, but also their involvement in the Guantanamo Bay case. SOURCE BBC, http://www.bbc.co.uk/worldservice/people/features/ihavearightto/index.shtml 4

HANDOUT Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 5

HANDOUT Article 10: Right to fair public hearing by independent tribunal Case Study: THE PRISONERS OF GUANTANAMO BAY Following September 11 and the subsequent military campaign in Afghanistan in late 2001, the United States imprisoned around 600 men from at least 43 different countries in a camp in a US naval base in Guantanamo Bay, Cuba. The aim was to interrogate them about their suspected involvement in the al-qaeda terrorist network. The United States government has labeled these men 'unlawful enemy combatants' when they were first apprehended. 35 of them were released in June 2003. Another five were handed over to British authorities in March 2004 and subsequently released. Others have been 'transferred for continued detention' to their home countries, including seven Russians, released without trial four months after their transfer, and four Frenchmen, still being held on suspicion of terrorist links. The rest at least 540 are still being held indefinitely in military custody at Guantanamo. No formal criminal charge has been brought against them. The Pentagon says that of the 188 who have been repatriated, five have 'rejoined the fight.' Abdul Ghaffar, a Taleban militant killed fighting in Afghanistan in late September 2004, is known to have spent eight months at the prison. Numerous governments and organizations have condemned the US' actions in regards to the prisoners. They have criticized the physical conditions of the camp and the staff's treatment of the prisoners. In 2003, British Law Lord Lord Steyn said the prisoners were being held in "utter lawlessness." Some of those released have said they tried to commit suicide. Others have claimed they were tortured, with Afghan ex-detainee Mohammed Khan saying "they tortured our bodies, they tortured our minds, they tortured our ideas and our [Muslim] religion." The US denies it uses torture. These men may be directly or indirectly responsible for September 11, one of the worst terrorist atrocities in history. However, Article 10 of the UDHR requires the US proves its responsibility for this act through a fair public hearing by an independent tribunal. The US is yet to try the prisoners. The legality of holding them without trial is currently under review, with the US Supreme Court having ruled that those held can challenge their detention. As a result, detainees are starting to have their cases re-examined by a military tribunal. Neither Prisoners of War nor Criminals US President George W Bush has proposed the prisoners in Guantanamo Bay are tried in a military tribunal. There are a number of differences between these tribunals and civilian courts convictions need only be by a two-thirds majority, not unanimous; defendants are not guaranteed the right to appeal against their conviction; and the tribunals can be held in secret. However, US Department of Defense guidelines for the War On Terror do specify that defendants have a right to a lawyer and to know the charges against them. Those in favor of this plan argue the tribunals are necessary in times of war. Opponents argue many of the protections of civilian courts do not apply in these tribunals. The controversy arises because of the unique status of the prisoners - they are neither traditional prisoners of war (POWs) nor convicted criminals. If they were recognized as POWS, then the Third Geneva Convention, which outlines the rights and protections entitled to prisoners of war, would apply. 6

On the other hand, if they were recognized as criminals, they would be entitled to the standard due process rights granted to ordinary citizens in the United States. So the status and rights of these men remains controversial - there is no provision for it under international law. However, British Home Secretary David Blunkett has said none of the Britons held there are a "security threat to the British people." Legal Outer Space Guantanamo Bay is what one US official has called the 'legal equivalent of outer space.' Although Guantanamo Bay is on Cuban soil, under an existing treaty, the US has controlled the base there for over 90 years. However, when lawyers of some of the detainees filed petitions asking US federal courts to assert jurisdiction over their cases, the courts responded that US courts have no jurisdiction over non-us citizens in Guantanamo because the military base is on Cuban soil and not under US sovereignty. Human rights organizations have demanded the Guantanamo detainees either be given the full status of POWs or put on trial. They say that according to international humanitarian and human rights law, any dispute about the Guantanamo detainees' legal status must be determined by a 'competent tribunal,' not behind the closed doors of a military tribunal. The Right to Counsel and Trial The right to a fair and public trial by an independent tribunal is granted to every human being under Article 10 of the Universal Declaration of Human Rights and subsequent international human rights conventions. However, none of the foreign nationals in US custody in Afghanistan or Guantanamo has been granted access to legal counsel. In choosing military tribunals, the Bush administration dismissed the idea of trying the Guantanamo detainees in front of international tribunals, US federal courts, or even traditional American military courts. The President will decide who will be sent before them, as well as which evidence can be withheld from the commission and defendant. Military tribunals have the power to convict based on hearsay, authorise indefinite detention without trial, and hand down death sentences without the right to appeal to a more independent and impartial court. Even if defendants are acquitted by the military tribunal, the executive reserves the right to continue to detain them indefinitely. Camp Conditions The conditions of the detention camp at Guantanamo Bay, known as Camp X-Ray, have been the subject of international debate. When the prisoners first arrived at the camp, widely-published photographs showed them blindfolded, chained, and manacled, prompting an international outcry about the humaneness of the camp and the staff's treatment of the men. US Defence Secretary Donald Rumsfeld declared that the detainees would be treated humanely and within the terms of the Geneva Conventions, despite the fact that they are not POWs. In order to further quell the outcry, the US allowed the International Committee of the Red Cross to visit the camp. Some of the 35 prisoners released in June 2003 said that while they were physically unharmed, they 7

were driven to despair by their confinement in tiny cells and uncertainty over their fate. 10 Afghans released in September 2004 said they were wrongfully held, but not mistreated. In late September 2004, a letter from British prisoner Moazzam Begg reached his lawyers uncensored it is believed by mistake which said he had been tortured, threatened with death and kept in solitary confinement since early 2003. He also said he had been heard other detainees being tortured, and believed this had led to the deaths of two men, which he had "partially witnessed." The UK government has said it continues to pursue complaints raised with the US authorities. Prisoners' Protest The prisoners at Guantanamo have found various means to protest the camp conditions. When camp guards reportedly removed an inmate's turban while he was praying, more than 100 of the inmates launched a hunger strike. The US Department of Defense has stated that the detainees will be held in Guantanamo until the end of the war against terrorism. Taken from: www.bbc.co.uk/worldservice/people/features/ihavearightto/four_b/casestudy_art10.shtml 8