UN Says Force-Feeding at Guantánamo Constitutes Ill-Treatment in Violation of the Convention Against Torture

I’ve been so busy lately with the launch of We Stand With Shaker, the new campaign to secure the release from Guantánamo of Shaker Aamer, the last British resident in the prison, that I haven’t had time to write anything — until now — about the United States’ recent appearance before the United Nations Committee Against Torture to explain its position on the torture and ill-treatment of prisoners in its custody.

The session — which took place on November 12 and 13, and was the first US report to the Committee Against Torture since 2006, when George W. Bush was president — led to numerous criticisms in the Committee’s response, adopted on November 20; in the Guardian‘s words, of “indefinite detention without trial; force-feeding of Guantánamo prisoners; the holding of asylum seekers in prison-like facilities; widespread use of solitary confinement; excessive use of force and brutality by police; shootings of unarmed black individuals; and cruel and inhumane executions.”

The Committee was also concerned about the US record on torture, expressing “its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the US Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes” — concerns expressed in a 2010 UN report about secret detention on which I was the lead author (and also see here, here and here) — and reminded the US about “the absolute prohibition of torture reflected in article 2, paragraph 2, of the Convention [Against Torture], stating that ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.'” The Committee also called for the long-delayed Senate Intelligence Committee torture report — or, more accurately, its executive summary — to be issued without further delay.

The Committee also focused on a loophole allowing torture in Appendix M of the Army Field Manual — as assiduously covered by my colleague Jeff Kaye for many years (and I’ll shortly be cross-posting his analysis of the Committee’s findings) — and also expressed concerns that the US has still not adequately ratified every aspect of the Convention Against Torture — which came into force in 1987. The Committee was specifically disappointed that “a specific offence of torture has not been introduced yet at the federal level,” adding that they were “of the view that the introduction of such offence, in full conformity with article 1 of the Convention, would strengthen the human rights protection framework” in the US. The Committee was also disappointed that the US “maintains a restrictive interpretation of the provisions of the Convention and does not intend to withdraw any of its interpretative understandings lodged at the time of ratification,” adding, “In particular, the concept of ‘prolonged mental harm’ introduces a subjective non-measurable element which undermines the application of the treaty.”

The question of police brutality — in which the Committee expressed “deep concern” about the “frequent and recurrent police shootings or fatal pursuits of unarmed black individuals,” and also noted the “difficulties to hold police officers and their employers accountable for abuses” — has, of course, come to the fore in recent weeks, through the lack of prosecutions for the killing of black men — firstly in Ferguson, with the shooting of Michael Brown, and most recently in New York, with the choking to death of Eric Garner — and it is no surprise that the streets of the US have erupted with demands for change in huge numbers.

I also concur with the Committee’s concerns about the death penalty, the shockingly widespread use of solitary confinement, the poor treatment of asylum seekers, and deaths as a result of poor prison conditions — the Committee was “particularly concerned about reports of inmate deaths [that] occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas.” However, as my particular area of expertise is Guantánamo, here’s my detailed analysis of what the Committee had to say about Guantánamo.

On Guantánamo, the Committee began with some positive comments, welcoming the fact that, since 2006, the Supreme Court had recognized “the extraterritorial application of constitutional habeas corpus rights to aliens detained by the military as enemy combatants at Guantánamo Bay,” in Boumediene v. Bush in June 2008; and that, on January 22, 2009, President Obama had issued “Presidential Executive Orders 13491 — Ensuring Lawful Interrogations, 13492 — Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, and 13493 — Review of Detention Policy Options,” and, on March 7, 2011, “Presidential Executive Order 13567 establishing a periodic review of detainees at the Guantánamo Bay detention facility who have not been charged, convicted or designated for transfer.”

So much for the good news — although, in the end, that involved a Supreme Court ruling gutted by the D.C. Circuit Court after a couple of golden years of judges ordering prisoners released through a lack of evidence of any wrongdoing whatsoever; an unfulfilled promise to close Guantánamo; a periodic review process that is horribly slow; and some dubious posturing about “lawful interrogations,” specifically through the Appendix M loophole mentioned above.

Following on, the Committee expressed its “deep concern” about the fact that the US “continues to hold a number of individuals without charge at Guantánamo Bay detention facilities,” adding, “Notwithstanding the State party’s position that these individuals have been captured and detained as ‘enemy belligerents’ and that under the law of war is permitted ‘to hold them until the end of the hostilities’, the Committee reiterates that indefinite detention constitutes per se a violation of the Convention [Against Torture].”

The Committee also expressed concern that, of the men still held — 148 at the time; 142 now — “only 33 have been designated for potential prosecution, either in federal court or by military commissions – a system that fails to meet international fair trial standards,” and that “36 others have been designated for ‘continued law of war detention.'” The Committee added, “While noting that detainees held in Guantánamo have the constitutional privilege of the writ of habeas corpus, the Committee is concerned at reports that indicate that federal courts have rejected a significant number of habeas corpus petitions” —  echoing the dismay felt by advocates for the prison’s closure when the D.C. Circuit Court cynically shut down habeas corpus for the Guantánamo prisoners in a number of rulings from 2009 to 2011, which the Supreme Court refused to challenge.

The Committee also noted that, although the US government had provided “explanations … concerning the conditions of detention at Guantánamo,” they remained “concerned about the secrecy surrounding conditions of confinement, especially in Camp 7 where high-value detainees are housed.”

The Committee also noted “studies received on the cumulative effect that the conditions of detention and treatment in Guantánamo have had on the psychological health of detainees” — echoing what Christophe Girod of the International Committee of the Red Cross had pointed out in October 2003, when he said, ”The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

The Committee also mentioned the “nine deaths in Guantánamo during the period under review, including seven suicides,” adding, “In this respect, another cause of concern is the repeated suicide attempts and recurrent mass hunger strike protests by detainees over indefinite detention and conditions of detention.”

Crucially, it was added, “In this connection, the Committee considers that force-feeding of prisoners on hunger strike constitutes ill-treatment in violation of the Convention [emphasis added]. Furthermore, it notes that detainees’ lawyers have argued in court that force feedings are allegedly administered in an unnecessarily brutal and painful manner (arts. 2, 11, 12, 13, 14, 15 and 16).”

The reference to “force-feeding of prisoners on hunger strike” as “ill-treatment in violation of the Convention” is particularly damaging, as, last year, a prison-wide hunger strike attracted global concern, and, this year, the Obama administration has been resisting efforts by a number of prisoners (in particular a Syrian man, Abu Wa’el Dhiab) to get a judge to order an end to his force-feeding.

In conclusion, the Committee called on the US to “take immediate and effective measures” to:

(a) Cease the use of indefinite detention without charge or trial for individuals suspected of terrorism-related activities;

(b) Ensure that detainees held at Guantánamo who are designated for potential prosecution be charged and tried in ordinary federal civilian courts. Any other detainees who are not to be charged or tried should be immediately released. Detainees and their counsels must have access to all evidence used to justify the detention;

(c) Investigate allegations of detainee abuse, including torture and ill- treatment, appropriately prosecute those responsible, and ensure effective redress for victims;

(d) Improve the detainees’ situation so as to persuade them to cease the hunger strike;

(e) Put an end to force-feeding of detainees in hunger strike as long as they are able to take informed decisions;

(f) Invite the UN Special Rapporteur on torture to visit Guantánamo Bay detention facilities, with full access to the detainees, including private meetings with them, in conformity with the terms of reference for fact-finding missions by Special Procedures of the UN Human Rights Council.

The Committee added that it “reiterates its earlier recommendation (CAT/C/USA/CO/2, para 22) that the State party should close the detention facilities at Guantánamo Bay, as instructed in section 3 of Executive Order 13492 of 22 January 2009.”

I’m glad to see such robust criticism from the UN, although I expected no less, and I await, in particular, to see if the Committee’s criticism of force-feeding will have any impact as the Obama administration, cynically, seeks to prevent the judge-ordered release of videotapes showing the force-feeding and “forcible cell extractions” of Abu Wa’el Dhiab, mentioned above.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, the director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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