JURIST Guest Columnist J. Wells Dixon, Senior Staff Attorney for the Center for Constitutional Rights, and attorney for Guantanamo detainee Djamel Ameziane, says that the IACHR's acceptance of his case is instrumental in promoting US responsibility for the well-being of detainees at Guantanamo Bay...
On March 30, 2012, the Inter-American Commission on Human Rights (IACHR) issued a landmark decision accepting jurisdiction over the merits of a complaint filed by Djamel Ameziane, an Algerian detained at Guantanamo Bay for more than 10 years without charge or fair trial or a ruling on the merits of his habeas corpus petition. Filed in August 2008, the complaint alleges violations of Ameziane's rights under the American Declaration of the Rights and Duties of Man, including failure to adequately determine his legal status, arbitrary detention without charge or judicial review, torture, other unlawful abuse and similar harms. The IACHR also issued an admissibility report on April 3, 2012, which concludes that Ameziane's claims are colorable. The report adds sua sponte that the IACHR will consider at the merits stage whether Ameziane has suffered discrimination based on his national origin, culture or religion. This decision is important for several reasons.
Ameziane's case marks the first time that an international body will review and decide whether the indefinite detention and abuse of exclusively Muslim men and boys at an offshore prison violates international human rights law. As an autonomous body within the Organization of American States, the IACHR's mission is to promote and protect international human rights in this hemisphere. The commission will examine not only the legality of Ameziane's decade-long detention, but also the conditions of his confinement and his fear of forcible repatriation to Algeria, where he could face persecution because of his status as a Guantanamo detainee as well as his minority Berber ethnicity. The IACHR will also examine the failure of the US to transfer him or any other detained man from the prison for more than a year following the enactment of the National Defense Authorization Act for 2011 (NDAA), the longest period of time without a transfer since the prison opened in January 2002. The IACHR will specifically examine the psychological harm to Ameziane caused by not knowing if or when he will be released, which is compounded by anxiety over the potential that he could be forcibly repatriated to Algeria; a fate that already befell two Algerian men, one of whom has since suffered terrible persecution.
As much as he fears transfer to Algeria, Ameziane is hopeful that his IACHR case will help him achieve safe resettlement in a third country. At a public hearing before the IACHR in October 2010, and in subsequent communications, Ameziane has requested that the IACHR facilitate a dialogue between the US and other countries belonging to the Organization of American States toward his safe resettlement. The reality is that indefinite detention at Guantanamo will not end unless the international community offers safe homes for men, such as Ameziane, who cannot return to their countries of nationality for fear of persecution. To this end, Ameziane's case presents a unique opportunity for the IACHR to engage the US and encourage the Obama administration to certify him for transfer or, if necessary, authorize a "national security waiver" of the transfer restrictions for him under the terms of the NDAA. These actions may pave the way for the international community to make a humanitarian gesture and offer Ameziane protection.
The ultimate outcome for Ameziane aside, his case presents a unique opportunity for the IACHR to establish and demonstrate its independence from the US. For the last 50 years, the IACHR has decided cases against states throughout the Americas, including Canada and the US. It has analyzed serious human rights violations throughout the region regardless of political and diplomatic pressure. There have been many cases before this body concerning a range of sensitive human rights issues, and this case about Guantanamo will prove no exception to the IACHR's mandate.
The US would be well-advised to take Ameziane's case seriously and heed the IACHR's recommendations, which thus far it has been unwilling to do. Although the US disputes the IACHR's jurisdiction over Guantanamo, the IACHR's decision makes clear that Ameziane's case will go forward and be decided, whether or not the US believes it should. Further, although decisions by the IACHR may not be practically enforceable in the US, they are legally binding and respected by other countries. Should the US disrespect the IACHR's decision, it will have a more difficult time raising its own concerns through the IACHR.
Finally, the IACHR's consideration of Ameziane's case is important because it reflects another step toward accountability for Guantanamo. Although the Obama administration has vigorously opposed any meaningful accountability for the harms caused by Guantanamo, other international jurisdictions are beginning to fill the void. Recently, in universal jurisdiction cases in Spain, civil suits by former Guantanamo detainees in the UK, a recent criminal indictment in Poland, and various reports issued from the UN and the EU, other members of the international community have begun to act and move toward providing some measure of accountability for Guantanamo because the US is unwilling or unable to do so on its own. Ameziane's IACHR case is simply the latest in what will undoubtedly be a continuing series of foreign judgments that will expose the horrors of Guantanamo and shame the US.
The world is a small place, and US efforts to avoid accountability for Guantanamo will fail in time. Indeed, as much as the US may wish to avoid or forget about Ameziane and leave him stranded indefinitely behind the wire, he will be heard before the Inter-American Commission on Human Rights, and that international body will render its judgment.
J. Wells Dixon is a Senior Staff Attorney for the Center for Constitutional Rights. He works on the Guantanamo Global Justice Initiative, and is one of of the attorneys representing Djamel Ameziane before the IACHR. He previously worked at Kramer Levin Naftalis & Frankel LLP, where he specialized in white collar criminal defense and securities litigation.
Suggested citation: J. Wells Dixon, IACHR Guantanamo Case a Hallmark for Human Rights, JURIST - Hotline, Apr. 27, 2012, http://jurist.org/hotline/2012/04/wells-dixon-iachr-guantanamo.php.
This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com