Thursday, February 16, 2006

The UN Human Rights Commission Finally Releases "Draft Report"

After a few days of selective leaking drafts of their report to major news outlets, the Special Rapporteurs of the U.N. Commission on Human Rights have finally released their report on the situation in Guantanamo Bay.

As I suggested earlier, the report sounds impressive, but it doesn't add a whole lot to the existing debate. It provides no new facts or new allegations. The investigators did not visit Guantanamo Bay (they refused an invitation because they wanted more access to the detainees) and it mostly rehashes news reports and other public information about Guantanamo. It accepts uncritically pretty much every accusation made against Guantanamo, despite U.S. government denials, in coming to its final recommendation that Guantanamo should be shut down.

The report is useful, however, in highlighting the difference in legal analysis and worldviews between the U.N. human rights community and the U.S. government. The UNCHR report concedes there is a military conflict going on, at least in the U.S. actions in Afghanistan, but it goes ahead and demands that the U.S. apply all of the protections under the International Covenant on Civil and Political Rights (ICCPR) to anyone detained in this conflict. This is a remarkable position, given that the ICCPR requires rather broad judicial protections similar to U.S. criminal procedure rights for civilians. Under the UNCHR's view, the U.S. must treat its detainees with essentially the same rights as civilians, which is far more than they would get if they were detained as prisoners of war. The UNCHR doesn't really recognize the possiblity of an "unlawful combatant" and even if they did, such a combatant would get all of the rights of a civilian.

What's odd about this analysis, as the U.S. points out, is that if you violate the laws of war in attacking a U.S. soldier in Afghanistan, you automatically get all the rights of the ICCPR. If you follow the laws of war and are captured, you get none of those rights.

The UNCHR should have stuck to their strongest argument, which is the allegations of torture and degrading treatment at Guantanamo in violation of the Convention Against Torture as well as U.S. laws and policies. This is really should be the heart of the debate over Guantanamo, and not this attempt to import all of human rights law (including the "right to health") into the discussion. That only undercuts the credibility of the special rapporteurs (which is not all that high to begin with).

5 Comments:

Blogger Charles Gittings said...

"What's odd about this analysis, as the U.S. points out, is that if you violate the laws of war in attacking a U.S. soldier in Afghanistan, you automatically get all the rights of the ICCPR. If you follow the laws of war and are captured, you get none of those rights."

There's nothing odd about it: your strawman argument is simply incorrect, and what's reallyu odd to me is that a law professor would write such things when it's obvious that you *STILL* haven't bothered to familiarize yourself with the actual laws that apply.

Have you read the Seton Hall report?

The detentions at Guantanamo are simply ILLEGAL regardless of the actuall status of any of the detainees, and it is equally amazing that *ANY* lawyer would buy the dishonest arguments of this adminstration and legal con-artists like Prof, John Yoo for one minute.

You have no actuall evidence against any of the detainees-- all you know is what the most corrupt adminstration of liars in our history.

Meanwhile, what FACTS say is that the Bush adminstration are war criminals. Simple as that, and anyone who denies it at this late date is either a liar or a fool.

2/17/2006 2:30 AM  
Blogger randomopinion said...

How kind of you, Prof. Ku, making a recommendation to the UNCHR about how it should conduct its mission. Besides being in total contradiction with your reiterated smearing of the institution, your description of the basis and the conclusions of the report are deliberately manipulated. A simple reading of the text so kindly linked to your post makes that perfectly evident.

Astonishingly, the principal arguments you present to criticize it all are nothing but a rehashed (catchy word, isn't it?) version of the White House’s talking points on the issue: http://www.whitehouse.gov/news/releases/2006/02/20060216-1.html#e

For example:

McCleland says: “(…) First of all, the U.N. team that was looking into this issue did not even visit Guantanamo Bay. (…)”

Ku repeats: “(…) The investigators did not visit Guantanamo Bay (they refused an invitation because they wanted more access to the detainees) (…)”

Mcleland says: “(…) I think that what we are seeing is a rehash of allegations that have been made by lawyers representing some of these detainees. (…)”

Ku repeats: “(…) it mostly rehashes news reports and other public information about Guantanamo. (…)”

McCleland concludes: “(…) And I think it's a discredit to the U.N. when a team like this goes about rushing to report something when they haven't even looked into the facts. All they have done is look at the allegations.”

Ku concludes: “(…) That only undercuts the credibility of the special rapporteurs (which is not all that high to begin with).”

And you still owe the rapporteurs an excuse.

2/17/2006 9:56 AM  
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