DG: Why and when did Human Rights Watch become involved in the situation at Guantanamo Bay?
WP: Actually, since the beginning which was actually before I got here [to Human Rights Watch]. I came on board in May 2002 when Human Rights Watch was already actively involved. The first big letter that I can point you to [on the website] was actually May 2002 and that was in progress when I got here. It was one of the first projects I got involved in.
From the beginning when it was announced that they [the U.S. government] was creating a prisoner camp and began moving some people there. We began to monitor it as part of our general role in monitoring human rights issues and applications of international humanitarian law --- meaning the laws of war, the Geneva Conventions and their protocols and every other type of customary law that goes around it. We play that role in ongoing conflicts.
For example, in Afghanistan, we were already very involved in monitoring compliance with International Human Rights and Humanitarian Law in that war. Very early on, Human Rights Watch requested, wrote to the Department of Defense and requested permission to go to Guantanamo and have access to the detainees. We've never gotten any response to that letter. We've not been allowed to go down and do what people often thing of us as doing --- which is getting in on the ground, getting facts, talking to people involved, being able to gather and document human rights abuses and present our findings to the public.
We haven't been able to do here because we haven't been able to go and talk to the detainees. To be fair, the International Committee of the Red Cross (ICRC), the ICRC, does have access to the detainees but they're the only independent monitoring group that does. As you may know, the ICRC works by relating directly to the government, rather than stating their findings publicly.
You can find a few general statements by them to the press or on their website, but they don't play the same role that an organization like Human Rights Watch does. We gather our findings independently and then state our findings publicly. We can only monitor the situation as best as we can from afar. In our letters, you can read our assessment of the situation and the failures of government to comply fully with the Geneva Convention requirements.
In particular, the failure to properly determine their status of the detainees who were brought there. They [the detainees] should have all had an individualized determination under Article 5 of the Geneva Conventions. It's not proper to do this 'blanket' determination of who everyone is. Combatants picked up in conflict are presumptively 'prisoners of war' until competent tribunals determine otherwise.
By contrast, we had a declaration by the highest levels of the U.S. government say they were all 'enemy combatants.' None of them were eligible for POW status. That's not only an improper application, but we would argue that the Taliban, who are the regular armed forces of the then government of Afghanistan should be found to be POWs. It's probably correct that the Al Qaeda prisoners are not entitled to POW status, but they are entitled to protection under the laws of war. We've raised all those questions in the past along with the children and concerns about detainees who were picked up far away from the zone of armed conflict.
DG: I know that Journalists were invited to go down to Guantanamo to tour the facility. Did they discourage you from joining them?
WP: Not in that sense. To my knowledge there's never been any conversation about whether such a tour could be arranged for us or whether we felt that it would be useful. Bare in mind, when the journalists go, they're not meeting detainees. They're not seeing where detainees are currently being held.
That's the way it's been explained to me in press reports and journalists with whom I've spoken. They go and they get some access to some of the officials down there. They also get a tour of what a cell would look like that a detainee may be kept in. But, none of them have, from press reports that I've seen, none of them have seen Camp Iguana where the children are being held when the children aren't in it.
To be really frank, I'm not really sure if that would serve a broad purpose for us [Human Rights Watch] for us to do the kind of monitoring ---the kind of fact gathering that we'd like to do. It's too limited. I think it's a value that we do know what we know about the process from the journalists who have seen it.
I mean, I'd rather have that information or not. But, we want to actually see the prisoners in the prison, talk to the prisoners themselves in private to really find out what's happening. It's clear to the lack of response to our request [the Human Rights Watch letter to the Bush Administration] is clearly about saying that that's not going to happen.
DG: Can you comment on the Children being held at Camp Iguana? I'm having some trouble finding information on this specific topic.
WP: Yes, that's generally the case. What you have here is the U.S. government saying the approximate number, which is 660 now, and the approximate number of nationalities which is 42. Very little else. They've never said their names. They've never specified the country. The have told us a little bit about comings and goings of prisoners. We know that 64 prisoners have been released, but we have seen some small reports that some small number of people have been added too which is why the number hasn't gone down dramatically. There's just a tremendous amount that we do not know about who is there, who they are, what they have allegedly done, how long they're be there and how long it will take for this to be resolved.
When it comes to the Children, I think there's a couple of things that can be resolved. There's a couple of important things to know.
The first thing is that when the government refers to the juveniles or the juvenile enemy combatants they're holding at Guantanamo, it's in fact only talking about three of which is actually a larger number of children. There are three children ages 13 to 15.
But there are an undisclosed number of 16 and 17 year olds. The government has never said either- how many 16 and 17 year-olds its holding or why it appears to have arbitrarily drawn the line at 16 instead of 18 which is the international standard for who is a child and who is an adult. What I've seen fairly often in press reporting is that there's 3 kids at Guantanamo. In fact, there's actually more than three. There's three under 16. Some press reports have noted that there are more over 16 but that we don't really know how many. I think that's significant because that brings a lot of questions about how many children are there?
Why aren't all of the children- meaning every one under 18 separated from the adults and given special protections via Camp Iguana?
It's clearly a good thing that they have made those accommodations for those three, but we would urge the Pentagon to do the same for all the kids detained there. Both around the international standards for the detention of juveniles, but more specifically, to fulfill the U.S.'s obligation as a party to UN protocol on child soldiers.
The United States ratified this international instrument, like a treaty, after being an active participant in the negotiations. It was one of the first countries to sign it. To its credit, it has been very involved in condemning the practice of child soldiers- the horrific abuse that it is around the world. Now, it's got some specific obligations with regard to the child soldiers that are in its custody which include mobilization, rehabilitation and reintegration into their society.
To put it simply- rehabilitation doesn't happen in a detention camp at Guantanamo Bay. We've continued to resolve the cases as quickly as possible in order to meet its obligations to rehabilitation and reintegration of these children.
DG: From your knowledge, how are the children being treated?
WP: What we've seen in press reports from journalists who've actually visited the camp, the three separate children have been placed in a separate camp called, "Camp Iguana." It's meant to be more like a house. They're given some additional services like some educational related services. There's a teacher who's working with them. That's all to their good, but again, that doesn't address the longer-term issue of rehabilitation and reintegration of these kids. Those services are apparently not being provided to the 16 and 17 year olds who are housed with the adults.
In terms of the reporting, if you were to do a big search, you may find a few stories that may refer to the 16 and 17 year-olds, but they don't say much. We haven't been told much. The Department of Defense has said very little about that.
DG: How have you been able to find out the identities of those who have been held?
WP: It's been extremely difficult. The U.S. government does not release the identities. As you know, there's been 6 people who have been designated of the 660 eligible for trial in a military commission. This doesn't definitely mean that they're going to be charged and prosecuted, it means that the next step for the prosecutors to decide if any charges to file. It's essentially a grant of jurisdiction. The military commissions have jurisdiction over these 6 people. We know the nationalities of three of the six. We know that two are British and we know his name. We know that one is Australian and we know his name.
What's interesting is how we know this! It's been said by the family members and it's been said or confirmed by their governments.
Even in the face of public acknowledgement of who these three men are, the U.S. government will still act as if we don't know who they are. They refuse to confirm who these people are even though they know it's out there in the public record and that the British and Australian governments have confirmed this case. They [the U.S. government] is steadfast in its policy to not acknowledge the names and nationalities of people who there. Even in the face of it[detainee information] being acknowledged by foreign governments.
Typically, [how] we have learned who is detained at Guantanamo --- nationality or name, we have learned it because their government has acknowledged it. They say that we have one of their citizens there and they may or may not say the name. An example would be Sweden. Sweden has said publicly, in its press announcement, that we [the U.S. government] have a Swedish national at Guantanamo.
Another way that we've learned a little bit of information would be press reports. Often local press that might report on a family member at home in a given country received mail from a son detained a Guantanamo. There might be a local press story.
What that means is that it's very labor intensive to even try to paint a partial picture of who's there. One must do tremendous searching of lots of papers all over the world, large and small to figure out if one gets any press hits about somebody there. There are places that we know. We know that there's one Swede. There's nine British citizens. The Pakistani government has said that there's 58 Pakistanis there. They haven't named names that I have seen, but you may find a local Pakistani paper that has interviewed a mother whose son is there. You get a name that way. We've also learned a bit from the 64 detainees who have been released.
Enterprising journalists who have gone off and have got their [the released detainees] input on the camps. There are some press stories like that. You should know that sometime this month, in November, Human Rights Watch, will be releasing a report based on interviews an Afghanistan researcher did interviews with a number of detainees who have been released from Guantanamo. We'll be having that report with additional information that they have to tell us.
DG: Do you know when that report will be released in November?
WP: The last time I asked in about two weeks, but I don't know how hard and fast that is.
DG: Do you happen to have a list of names of those prisoners who are released?
WP: No. Again, the U.S. government doesn't give the names. The most you might get is today we released 27 prisoners. That's why it's taken some work to go try find the people and talk to them. Some interviews have been done that's why there's some names in the papers. It is with some frequency that I will actually get calls from journalists, others, sometimes an international institution or some other think tank will call and ask; Do you have the names? Do you have the nationalities? I find myself repeating the same story.
People usually think Human Rights Watch is usually on top of this sort of fact digging and that we would probably know. Instead, we usually have to say to them, we confront many of the same challenges that you do. The lack of information about who's there makes it extremely difficult to try to track this. There was this, but it's so outdated, that its not particularly useful. But it will give you an example of the kind of work that can be done one this. The AP [Associated Press] did a story in June of 2002 called "Prisoners Glance" what they did was say that the U.S. government won't identify the 36, at that time, countries, but a compilation was assembled from AP interviews and stories in prisoners' home countries.
It's extremely difficult to actually know what the exact numbers are. Just today, someone asked me if there was an Italian national. I said I never even heard of one but that doesn't mean that there isn't one.
DG: So if there's these governments who have come out and said that there's this amount of detainees at Guantanamo Bay, will they actually work with you to find those names?
WP: It's hard to generalize about that. I think when government release that sort of information they often do for a variety of purposes. They may do it because it's already well known in the home country or because the family members have already publicly acknowledged that their family member is already there.
They may be putting pressure on their governments to act, to defend the rights of those detainees. Sometimes its already out there in the public domain and they're being responsive and that they're actively pursuing the rights and protections of those in detainment.
Other times it may come out in a situation where they're under domestic pressure under the 'war on terror' and it's their job to bring their people home. They may be out there not because they view it in human rights terms, but because they say that they [the detainees] may be low-level operatives so they shouldn't be held there.
It's an interesting link between domestic political pressures placed on these governments, the bilateral relationship with the United States, and the overall rule of law in the struggle against terrorism. Some of that has really evolved over time too. We're approaching the second anniversary of having detainees at Guantanamo, so we are beginning to see a growing chorus of concern about where is this really headed? How long is this going go on? It seems to have no endpoint which one can define. This further complicates the lack of any legal process. The idea that this is structured or conceived of war with no objective or end. It raises concerns in the minds of many observers, including governments, about just how long this detention will take place.
Just last month [October 2003], there was a special session of the European Parliament held in Brussels where a number of the family members of European nationals detained at Guantanamo came together for a presentation. Someone from our Brussels office attended and I got a report from him about what it was like and it sounded like the families made very heartfelt expressions of powerlessness and frustration. When you look at how these detentions have been handled and described, it's pretty easy to understand why that is the case. They were there trying to encourage the European government, individually and collectively, through the EU to raise this concern while prominently put more pressure on the United States to have a plan for resolving this.
Acknowledging the laws of war can apply and acknowledge that they can apply to the detainees. Specifically the war in Afghanistan and the then Taliban government. Yes you can hold them, but once those hostilities are over, you must charge them with crimes, or let them go. Even assuming the position that the U.S. is taking, the laws of war can apply in some fashion to Al Qaeda fighters. That's a difficult question with many legal questions embedded in it. Even assuming for the sake of argument that it would be true, you still can move towards a prosecutorial model before the hostilities begin.
People who have committed serious acts of terrorism, crimes of war, crimes against humanity, can and should be prosecuted. Human Rights Watch stands for accountability. They must be prosecuted fairly. At Guantanamo, it's essential that these trials be scrupulously fair if they're going to produce verdicts that are going to be seen as legitimate in the eyes of a world that's already skeptical about these long-term detentions.
DG: Do you or have you created a list of detainees through your media searching?
WP: We haven't [created a list of the detainees]. We have some names, but, we haven't tried to pull together a full matrix. We don't have that and I don't know of anyone who does. I think people know and track different cases for different reasons. If they're looking for legal issues in the U.S. courts, would look at the detainees looking to bring those channels. I'm not aware of anyone who's akin to a list. If they had one it would surely be incomplete because there's just not information in the public record about it.
DG: For my research project, I would like to have a substantial area that actually has information about detainees.
WP: Great! If you did that matrix, I think you'd find a lot of people going to your website.
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WP: I sometimes get asked by audiences, 'why should we care about these people who we're being told are terrorists and are the worst of the worst' down in Guantanamo. I have two responses to that.
We've been told that they're 'the worst of the worst' and we've been told that there are three 13 to 15 year-olds. We need to put that into context. That doesn't mean that you have to believe that every last one of them is innocent to defend their rights. It's simply a caution against taking it at face value that every one of them is guilty of their crime. That hasn't been established yet.
Secondly, I think that what's stake here are the rules that government have to follow. They detain people in times of war. By failing to comply fully with the Geneva Conventions, the U.S. government is sending a signal to other governments, including repressive ones, that it's o.k. to pick and choose among the laws of war. That undermines the strength of the Geneva Conventions around the world. It also sets a dangerous precedent for the men and women of the U.S. armed forces that would be detained in fighting overseas.
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