The Jan. 24 findings of the UN Working Group on Arbitrary Detention conclude that the continued detention of Ammar al Baluchi at Guantanamo Bay is arbitrary, discriminatory, and in breach of the international norms relating to the right to a fair trial established by international human rights law. In its written opinion, the working group stated that the U.S. government failed to meet its burden of establishing the legal basis for al Baluchi’s detention and has been denying his right to be brought promptly before a judge to challenge the lawfulness of his detention.

The Working Group on Arbitrary Detention was established to investigate cases of deprivation of liberty imposed arbitrarily, or otherwise inconsistently, with the relevant international standards set forth in the Universal Declaration of Human Rights. This is the group’s third opinion related to U.S. detention at Guantanamo. It comes at a time when the Guantanamo military commissions are visibly unraveling, and sharpens the focus on whether the remaining 41 detainees should be prosecuted in federal court instead.

Many of the issues raised by the working group’s report—specifically, whether a law of war detention authority that once existed has since expired—are also being considered by the case of Gitmo detainee Moath Hamza Ahmed al-Alwi in the D.C. Circuit. Both the al-Alwi case and the UN Working Group suggest that the upper limit of detention authority outlined by Justice Sandra Day O’Connor in Hamdi v. Rumsfeld has arrived. Hamdi determined that detention authority is limited to the duration of the relevant conflict in which the specific detainee was captured:

“We understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on long-standing law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

In reviewing al Baluchi’s case, the Working Group first concludes that if the U.S. government cannot prove that an armed conflict existed on Sept. 11, 2001, and that al Baluchi participated in that conflict, the laws of war do not apply and the government can no longer rely on the 2001 Authorization for Use of Military Force as justification for his detention. However, the working group also finds that even if an armed conflict did exist on 9/11, the Geneva Conventions require that enemy belligerents be released at the end of hostilities. At this point in time, whether the “War on Terror” is considered an international or non-international armed conflict, “any of the procedures for detention regimes under international humanitarian law as the lex specialis have ceased to apply.” As such, the process afforded to al Baluchi must be considered with reference to international human rights law, not the law of armed conflict.

Al Baluchi, also known as Abd al Aziz Ali, is a Kuwait-born citizen of Pakistan. He is the nephew of Khalid Sheikh Mohammed, the accused principle architect of the Sept. 11, 2001, attacks. He is accused of providing the 9/11 hijackers with money and helping them with logistics in the U.S. He is currently charged with acts in violation of the laws of war, as well as material support for terrorism, conspiracy, and the destruction of property, which are not considered crimes under the law of armed conflict.

The report concludes the U.S. military’s detention of al Baluchi has violated 13 separate articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Notably, al Baluchi’s case is one of several brought before the Working Group concerning the arbitrary detention of persons at Guantanamo Bay. On this point, the group notes in its findings that “the widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.”

The Working Group says that al Baluchi should be released immediately and given an enforceable right to compensation and other reparations, such as appropriate physical and psychological rehabilitation for the torture he suffered at the hands of the U.S. government.

The Working Group’s decision is yet another example of how U.S. counter-terrorism detention and trial procedures—especially as they relate to Guantanamo—are out of touch with the international community’s interpretation of law and standards of conduct. If the U.S. wants a sustainable approach for incapacitating terrorism suspects with the cooperation of its coalition partners, it would be wise to use the well-established and lawful civilian federal court process rather than the broken system at Guantanamo.

You can read the working group’s report and findings concerning Ammar al Baluchi here. To date, there has been no official U.S. response.


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