USA: UN HUMAN RIGHTS EXPERTS CALL FOR THE SAFE RELEASE OF MUSTAFA AL JADID AL UZAYBI, ONE OF THE LAST REMAINING “FOREVER PRISONERS” AT GUANTÁNAMO
On 2 June 2023, the UN Working Group on Arbitrary Detention (WGAD) published its decision concerning the indefinite detention of Mustafa Faraj Mohammad Masud AL JADID AL UZAYBI (also known as “Abu Faraj AL LIBI”). Alkarama had submitted a complaint on his behalf to the WGAD on 29 November 2022.
This Libyan national has been arbitrarily detained in Guantánamo Bay detention centre since his transfer from a CIA “black site” on 4 September 2006. He has been characterised by US military medical personnel as “the most severely impaired and incapacitated detainee at Guantánamo Naval Base”, because of the torture and mistreatment inflicted on him by US forces for the past nearly two decades.
In their Opinion, the UN experts found the United States of America responsible for his arbitrary detention, whereas Pakistan and Romania were also found responsible for his early secret detention in CIA bases in which AL UZAYBI was subjected to severe forms of torture.
The experts also noted that the various denials of and restrictions on the rights of AL UZAYBI were due to discrimination on the basis of his religion as a Muslim man. While the Working Group specifically addressed AL UZAYBI’s case in this decision, the experts stated that the conclusions reached in his case also apply to other detainees in similar situations at Guantánamo Bay.
The experts concluded that “over the past 15 years, the Working Group has addressed several cases of detention at Guantánamo Bay” highlighting “the pattern that all these cases follow and recalls that under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty violation of fundamental rules of international law may constitute crimes against humanity”.
Background of the case
Suspected of being associated with al-Qaeda, AL UZAYBI was arrested on 2 May 2005 in Mardan (north Pakistan) by Pakistani special forces and was extraordinarily rendered to CIA custody. After his extrajudicial rendition, and for a year-and-a-half, he remained unaccounted for as he was taken by the CIA from one “black site” to another, including in Afghanistan and Romania.
While detained in these black sites, AL UZAYBI was subjected to torture, inflicted by CIA agents in the form of “enhanced interrogation techniques”. The United States government officially recognised having subjected AL UZAYBI to at least the following acts: “(1) dietary manipulation, (2) nudity, (3) attention grasp, (4) walling, (5) facial hold, (6) facial slap or insult slap, (7) abdominal slap, (8) cramped confinement, (9) wall standing (10) stress positions (11) water dousing, and (12) sleep deprivation (more than 48 hours).
As a result of torture, AL UZAYBI has developed several health problems, including “severe hearing loss in both ears” (100% loss in the left ear and approximately 50% in the right ear).
On 4 September 2006, he was taken to the Guantánamo Bay detention camp where he remains held since then, without any charges nor trial. While AL UZAYBI is currently held under the jurisdiction of the US government, Alkarama submitted the complaint against the US as well as Pakistan and Romania, also jointly responsible for the arbitrary arrest, enforced disappearance, and torture of AL UZAYBI.
A “Kafkaesque” situation where the rule of law is rendered meaningless...
Twenty years after 9/11, the Guantánamo Bay detention facility continues to hold detainees in disregard of fundamental human rights. Despite promises made, reiterated requests for its closure, including by successive High Commissioner for Human Rights and independent United Nations (UN) experts over the years have gone unheeded.
The case of AL UZAYBI stands as a striking example of what UN experts have called a “Kafkaesque situation where the rule of law was meaningless and the coercive and brutal power of the State ascendant”.
Today, AL UZAYBI’s detention has no end in sight. Almost 20 years after his arrest, the US authorities have never produced a single witness or incriminating material evidence to support his continued detention.
An Unjustifiable Continued Detention, Under Both International and US Laws
Alkarama highlighted that, while the detention of AL JADID AL UZAYBI was in any case illegal under international law, it was also baseless even the US doctrine of continued law-of-war detention. According to the US’s doctrine, continuous detention of an “enemy combatant”, without trial would be justified under the Authorisation for Use of Military Force (“AUMF”) passed by Congress in response to the attacks of September 11, 2001.
Such detentions were based on the sole rationale that “enemy combatants”, like AL JADID AL UZAYBI, could be detained without charges in order to prevent their return to the battlefield, and until the “end of hostilities”.
However, this does no longer apply since former President Trump decision to withdraw US troops from Afghanistan and to sign an agreement with the Taliban putting an end to hostilities. His successor in the White House, President Joe Biden proclaimed on 31 August 2021 that “last night in Kabul, the United States ended 20 years of war in Afghanistan”.
Joint responsibility of several States for the victim’s arrest, detention, and torture
The experts found that, from the time of his arrest and up to the present day, AL UZAYBI has never had the opportunity to challenge the lawfulness of his arrest before a competent, impartial, and independent judicial authority. AL UZAYBI was subjected to extraordinary rendition including by Pakistan and Romania, a practice the experts described as aiming at “avoiding all procedural safeguards and is not compatible with international law”.
In its complaint, Alkarama argued that the Governments of Pakistan, Romania, and the United States collaborated in his torture and cruel, inhuman, or degrading treatment and are jointly responsible for his arbitrary arrest, enforced disappearance, and torture and cruel, inhuman or degrading treatment.
While the United States was found to have played the most significant role in the violations of AL UZAYBI’s rights, the Working Group recalled that he was arrested by Pakistani military forces and handed over to the Central Intelligence Agency. The Working Group also noted that the Director of the Central Intelligence Agency visited Romania while AL UZAYBI was detained and severely tortured there.
The Working Group concluded that the Governments of Pakistan, Romania and the United States all played a role in the extraordinary rendition programme, whether by directly detaining persons subjected to it or knowingly assisting in its implementation by providing access to transportation and locations for unregistered detention sites.
Serious violations of fundamental rights and fair trial due to discrimination on the basis of religion.
The Working group concurred with Alkarama's claims by highlighting that Mr. al-Uzaybi’s detention without a trial for over 17 years violates his rights under article 9 (3) of the International Covenant on Civil and Political Rights (ICCPR) to be tried within a reasonable time, and under article 14 (3) (c) of the ICCPR to be tried without undue delay. The experts concluded that “because of this delay, he will be significantly hampered in his ability to recall events and present a defence should any trial ever occur”.
These violations are all the more serious in that they are the result of a discriminatory denial of fundamental rights and due process to Guantánamo detainees such as Al UZAYBI. Alkarama highlighted that in the transcripts of his interrogations by military judges, he was frequently questioned about his religious and political views on US foreign policy. The WGAD concluded that the various denials and restrictions of rights that do not normally apply within the United States are applied exclusively to non-national Muslim men at Guantánamo Bay. The experts therefore concluded that AL UZAYBI's continued detention is a result of discrimination based on his status as a foreign national and his religion, and that he is being denied his right to equal treatment under the law.
Serious concerns about lack of adequate medical care in detention
In its submission, Alkarama highlighted the particularly cruel and inhumane conditions of detention of AL UZAYBI, who is still suffering from the torture inflicted on him by US forces.
The WGAD experts concluded with concern that although AL UZAYBI is the most disabled and incapacitated detainee at Guantánamo Bay, he is not receiving the medical care he needs because the US government refuses to provide detainees with the same level of medical care it provides to its own personnel. As a result, his health has seriously deteriorated and, with no release date in sight, he is effectively being held in inhumane indefinite detention, which itself amounts to a form of torture and cruel treatment.