UNITED NATIONS - The U.N. human rights chief expressed serious concern about recent U.S. legislative and judicial setbacks that leave hundreds of Guantanamo detainees without any way to challenge their indefinite imprisonment.
“I hope that we will see the American judicial system rise to its long-standing reputation as a guardian of fundamental human rights and civil liberties and provide the protection to all that are under the authority, control, and therefore in my view jurisdiction of the United States,” Louise Arbour said Wednesday.
The U.N. high commissioner for human rights was referring to the Military Commissions Act approved by the U.S. Congress last year and last month’s federal appeals court ruling that Guantanamo Bay detainees cannot use the U.S. court system to challenge their detention. The case is likely to go to the Supreme Court.
At issue is the right of habeas corpus, a basic tenet of the U.S. Constitution protecting detainees from unlawful imprisonment. Twice before, the U.S. Supreme Court ruled that right gave Guantanamo detainees full access to courts. But last June, the justices suggested President George W. Bush could ask Congress for more anti-terrorism authority, prompting passage of the commissions act.
The act grants suspects at Guantanamo Bay the right to confront the evidence against them and have a lawyer present at specially created “military commissions.” But it does not require that any of them be granted legal counsel and specifically bars detainees from filing habeas corpus petitions challenging their detentions in federal courts.
“I am very concerned that we continue to see detention without trial and with, in my opinion, insufficient judicial supervision,” Arbour told a news conference after meeting with U.N. Secretary-General Ban Ki-moon.
“I thought there had been progress in that direction. There’s been a legislative setback now recently in my view, a judicial decision that again does not provide the scope of judicial review that I would like to see in cases of people facing ... no charges but facing very serious suspicions or allegations,” she said. These people have “no credible mechanism to ascertain the validity of these ... suspicious or allegations.”
The first prisoners arrived at the U.S. military base in Guantanamo Bay, Cuba, more than five years ago, after the Sept. 11, 2001 terror attacks, and about 395 are currently detained there. The appeals court ruling dismissed hundreds of cases filed by foreign-born detainees in federal court and also threatened to strip away court access to millions of foreigners legally in the United States as permanent residents.
Arbour, a former Canadian Supreme Court justice, said she was an admirer of the American judicial system but stressed that “getting access to court with appropriately supported legal advice and so on is absolutely critical.” She said checks and balances by the different branches of government are also essential to democratic government.
At the wide-ranging news conference, Arbour said she sensed “a renewed interest and momentum in the international community generally to look again at the need to move toward the abolition of the death penalty.”
She said interest in abolishing the death penalty is usually triggered by events, sometimes a wrongful conviction. It can also be triggered by big media events, and she said Saddam Hussein’s execution in Iraq “may have created an environment in which people are asking a lot of serious questions about the use of that procedure.”
Arbour expressed hope that a World Court ruling earlier this week on Serbia’s actions during Bosnia’s 1992-95 war would have “the most resonance and significance” for a passage regarding the obligation of states to prevent genocide. Although the ruling cleared Serbia of genocide, it said the Balkan country did nothing to stop the massacre of more than 7,000 men and boys in Srebrenica by Bosnian Serb troops.
The U.N. human rights chief warned against romanticizing the Lord’s Resistance Army, which has led a brutal insurgency against Ugandan President Yoweri Museveni since the mid-1980s, leaving thousands dead and forcing 1.7 million people to flee their homes, according to relief organizations.
“I’m always very skeptical when I hear of a peace negotiation with a group that doesn’t seem to have, as far as I can tell, any political agenda,” Arbour said. “I think it’s very important not to romanticize the LRA as all of a sudden the political champion of the Acholi people that it terrorized for 20 years.”
“I think there is a certain amount of revisionism in transforming what is essentially a quite well-organized, well-armed criminal enterprise now into a political interlocutor that we should have great hope of yielding to in a peace settlement,” she said.