natgillin/translations-raw huggingface dataset:
m) at dets formandskab retter henvendelse til de amerikanske myndigheder om spørgsmålet om Guantanamo-fangernes ret til en retfærdig rettergang og optage dette spørgsmål på dagsordenen for det næste topmøde EU-USA;
As regards the possible impact on the EU-US partnership
q) at opfordre USA til at overholde sine forpligtelser i henhold til konventionen mod tortur og anden grusom, umenneskelig eller nedværdigende behandling eller straf, som vedtoges af FN's Generalforsamling i december 1984, hvis artikel 3 forbyder at udvise, tilbagelevere eller udlevere en person til stater, hvor der er vægtige grunde for at antage, at han vil være i fare for at blive underkastet tortur;
3, which prohibits the expelling, return ("refoulement") or extradition of a person to countries where there are substantial grounds for believing he or she would be subjected to torture;
7. oktober 2003
7 October 2003
FORSLAG TIL HENSTILLING B5-0426/2003 jf. forretningsordenens artikel 49, stk. 1
PROPOSAL FOR A RECOMMENDATION B5‑0426/2003 pursuant to Rule 49(1) of the Rules of Procedure
af Baroness Sarah Ludford for ELDR-Gruppen, Anna Terrón i Cusí for PSE-Gruppen, Monica Frassoni for Verts/ALE-Gruppen og Marianne Eriksson for GUE/NGL-Gruppen
by Sarah Ludford, on behalf of the ELDR Group, Anna Terrón i Cusí, on behalf of the PSE Group, Monica Frassoni, on behalf of the Verts/ALE Group, and Marianne Eriksson, on behalf of the GUE/NGL Group
om Guantanamo-fangernes ret til en retfærdig rettergang
on the Guantanamo detainees' right to a fair trial
– der henviser til sin beslutning af 13. december 2001 om retsligt samarbejde mellem EU og USA om bekæmpelse af terrorisme ( B5-0813/2001 ),
– having regard to its resolution of 13 December 2001 on EU judicial cooperation with the United States in combating terrorism ( B5-0813/2001 ),
– der henviser til sin beslutning af 7. februar 2002 om fangerne i Guantanamo ( B5-0066/2002 ),
– having regard to its resolution of 7 February 2002 on the detainees in Guantanamo Bay ( B5-0066/2002 ),
– der henviser til sin beslutning af 6. juni 2003 om aftalerne mellem EU og USA om gensidig retshjælp i straffesager og udlevering ( A5-0172/2003 ),
– having regard to its report of 6 June 2003 on the EU-US judicial cooperation agreement ( A5-0172/2003 ),
– der henviser til sin betænkning om respekten for de grundlæggende rettigheder i Den Europæiske Union i 2002 ( A5-0281/2003 ),
– having regard to its report on the situation as regards fundamental rights in the European Union (2002) ( A5-0281/2003 ),
– der henviser til den tredje Genève-konvention om behandling af krigsfanger, vedtaget den 12. august 1949,
– having regard to the Third Geneva Convention relative to the treatment of prisoners of war, which was adopted on 12 August 1949,
– der henviser til den høring om Guantanamo-fangernes ret til en retfærdig rettergang, som fandt sted i Europa-Parlamentet den 30. september 2003,
– having regard to the hearing on the Guantanamo detainees' right to a fair trial, which was held at the European Parliament on 30 September 2003,
A. der henviser til, at USA har vedtaget et præsidentielt dekret om militærdomstole,
A. whereas the USA has adopted a President's executive order on military tribunals,
B. der er bekymret over, at den amerikanske og den europæiske indfaldsvinkel i visse henseender er uforenelige med hinanden, og over, at dette svækker den fælles indsats med henblik på bekæmpelse af terrorisme,
B. concerned that in some respects the American and European approaches are incompatible and that this weakens the common fight against terrorism,
C. der henviser til, at tilfangetagelsen og den fortsatte internering under de forhold, hvorunder fangerne i Guantanamo og andre steder uden for USA holdes indespærret, er i strid med Genève-konventionerne og andre internationale humanitære instrumenter,
C. whereas the capture and continued detention in the circumstances in which the prisoners are held in Guantanamo Bay and elsewhere outside the USA contravenes the Geneva Conventions as well as other international humanitarian instruments,
D. der henviser til, at den amerikanske regering må overholde bestemmelserne i den tredje Genève-konvention (1949), hvorefter fangerne ville blive kategoriseret som krigsfanger, medmindre, som det hedder i konventionens artikel 5, en kompetent domstol træffer en anden afgørelse,
D. whereas the US Government must respect the provisions of the Third Geneva Convention (1949), under which the detainees would be categorised as prisoners of war unless a competent tribunal, as provided for in Article 5 of the Convention, had determined otherwise,
E. der henviser til, at det i mangel af en sådan afgørelse er vigtigt at behandle sagen i overensstemmelse med artikel 14 i den internationale konvention om borgerlige og politiske rettigheder (1966), som USA har undertegnet,
E. whereas in the absence of such determination it is essential for the matter to be dealt with in accordance with Article 14 of the United Nations International Covenant on Civil and Political Rights (1966), to which the USA is party;
F. der henviser til, at artikel 14 om retten til en retfærdig rettergang må overholdes, herunder retten til en retfærdig og offentlig behandling af sagen ved en kompetent, uafhængig og upartisk domstol oprettet ved lov, retten til tilstrækkelig tid og mulighed for at forberede et forsvar og til at stå i forbindelse med en advokat efter eget valg og retten til gratis juridisk bistand,
F. whereas Article 14 on the right to a fair trial must be respected – including the right to a fair and public hearing by a competent, independent and impartial tribunal established by law; the right to adequate time and facilities for the preparation of the defence and to communicate with counsel of one's own choosing; and the right to legal assistance without payment,
– at fastlægge en fælles holdning til spørgsmål vedrørende anden og tredje søjle; – på grundlag af denne fælles holdning at indlede drøftelser med USA på højeste politiske plan om spørgsmålet om Guantanamo-fangernes ret til en retfærdig rettergang.
– establish a common position on matters relating to the second and third pillar, – on the basis of this common position, start discussions with the USA at the highest political level on the matter of the Guantanamo detainees' right to a fair trial.
EXPLANATORY STATEMENT 1.
EXPLANATORY STATEMENT 1.
The on-going struggle against terrorism that the US is carrying out started with the war in Afghanistan in the aftermath of the September 11, 2001 attacks.
The on-going struggle against terrorism that the US is carrying out started with the war in Afghanistan in the aftermath of the September 11, 2001 attacks.
The conflict has so far resulted in some 660 prisoners of over 38 different nationalities being held at Guantanamo Bay detention camp without charge and in the most irregular circumstances.
The conflict has so far resulted in some 660 prisoners of over 38 different nationalities being held at Guantanamo Bay detention camp without charge and in the most irregular circumstances.
Some 87 of them have been already released.
Some 87 of them have been already released.
From the point of view of the rapporteur, this situation presents obvious implications, at least from two perspectives.
From the point of view of the rapporteur, this situation presents obvious implications, at least from two perspectives.
Firstly, there are two classical questions that from an international law point of view remain unanswered: What is the applicable legislation?
Firstly, there are two classical questions that from an international law point of view remain unanswered: What is the applicable legislation?
What is the competent jurisdiction?
What is the competent jurisdiction?
Secondly, a sensible political question needs to be addressed in parallel: What are the implications of the existing situation in Guantanamo for EU-US Transatlantic relations?
Secondly, a sensible political question needs to be addressed in parallel: What are the implications of the existing situation in Guantanamo for EU-US Transatlantic relations?
Legislation and jurisdiction questions will be dealt with in more detail by the LIBE Committee opinion, though some related key elements will also be considered in the present report.
Legislation and jurisdiction questions will be dealt with in more detail by the LIBE Committee opinion, though some related key elements will also be considered in the present report.
Specific attention will be paid, however, to the implications resulting from this anomalous situation for EU-US Transatlantic relations, which are at the core of the European Union foreign policy.
Specific attention will be paid, however, to the implications resulting from this anomalous situation for EU-US Transatlantic relations, which are at the core of the European Union foreign policy.
The applicable legislation
The applicable legislation
The present question does not refer to the Hague Conventions of 1899 and 1907 on the rules of engagement during combat, but rather to the second branch of the law of conduct during war ("ius in bello"), that is, the Geneva Conventions and international humanitarian law, which emphasises human rights and responsibilities derived from armed conflicts.
The present question does not refer to the Hague Conventions of 1899 and 1907 on the rules of engagement during combat, but rather to the second branch of the law of conduct during war ("ius in bello"), that is, the Geneva Conventions and international humanitarian law, which emphasises human rights and responsibilities derived from armed conflicts.
From this perspective, it is true that President Bush did in fact change the United States' initial position that was contrary to the application of the Geneva Conventions of 1949 regarding the detainees held in Cuba, with the announcement that Taliban fighters are covered by the Geneva Conventions, while Al Qaeda fighters are not, Al Qaeda not being a state and therefore not a party to the Conventions The Geneva Conventions of 1949 create a comprehensive legal regime for the treatment of detainees in an armed conflict.
From this perspective, it is true that President Bush did in fact change the United States' initial position that was contrary to the application of the Geneva Conventions of 1949 regarding the detainees held in Cuba, with the announcement that Taliban fighters are covered by the Geneva Conventions, while Al Qaeda fighters are not, Al Qaeda not being a state and therefore not a party to the Conventions The Geneva Conventions of 1949 create a comprehensive legal regime for the treatment of detainees in an armed conflict.
Members of a regular armed force and certain others, including militias and volunteer corps serving as part of the armed forces, are entitled to specific privileges as POWs.
Members of a regular armed force and certain others, including militias and volunteer corps serving as part of the armed forces, are entitled to specific privileges as POWs.
Members of volunteer corps, militias and organised resistance forces that are not part of the armed services of a party to the conflict are entitled to POW status if the organisation (a) is commanded by a person responsible for his subordinates, (b) uses a fixed distinctive sign recognisable at a distance, (c) carries arms openly, and (d) conducts its operations in accordance with the laws of war.
Members of volunteer corps, militias and organised resistance forces that are not part of the armed services of a party to the conflict are entitled to POW status if the organisation (a) is commanded by a person responsible for his subordinates, (b) uses a fixed distinctive sign recognisable at a distance, (c) carries arms openly, and (d) conducts its operations in accordance with the laws of war.
Groups that do not meet these standards are not entitled to POW status and members of such groups who commit belligerent acts may be treated as civilians under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
Groups that do not meet these standards are not entitled to POW status and members of such groups who commit belligerent acts may be treated as civilians under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
These "unprivileged" or "unlawful combatants" may be punished for acts of violence for which legitimate combatants could not be punished.
These "unprivileged" or "unlawful combatants" may be punished for acts of violence for which legitimate combatants could not be punished.
The above-mentioned four criteria are therefore at the centre of the debate about the POW status of any detainees.
The above-mentioned four criteria are therefore at the centre of the debate about the POW status of any detainees.
The main issue is whether these four criteria established in Article 4 A (2) of the Geneva Convention for the Treatment of Prisoners of War apply only to irregulars, as the text and structure of the treaty suggests, or whether they form a part of customary international law and apply to all combatants. .
The main issue is whether these four criteria established in Article 4 A (2) of the Geneva Convention for the Treatment of Prisoners of War apply only to irregulars, as the text and structure of the treaty suggests, or whether they form a part of customary international law and apply to all combatants. .
The reality is, however, that neither Taliban nor Al Qaeda fighters are being treated as prisoners of war (POWs) and that in practice the Bush Administration considers all of the detainees to be "unlawful combatants," who may be held indefinitely without trial or even despite any eventual acquittal by a military tribunal.
The reality is, however, that neither Taliban nor Al Qaeda fighters are being treated as prisoners of war (POWs) and that in practice the Bush Administration considers all of the detainees to be "unlawful combatants," who may be held indefinitely without trial or even despite any eventual acquittal by a military tribunal.
Taking quite an opposite position, the rapporteur agrees with the view of those who consider that both President Bush's decision and current Bush Administration practice relies on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War.
Taking quite an opposite position, the rapporteur agrees with the view of those who consider that both President Bush's decision and current Bush Administration practice relies on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War.
The rapporteur considers that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise.
The rapporteur considers that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise.
In such a case, they must fall under either the Third Geneva Convention (lawful combatants entitled to prisoner of war protections) or the Fourth Geneva Convention (civilians); there is no intermediate status, as correctly underlined in LIBE's Opinion.
In such a case, they must fall under either the Third Geneva Convention (lawful combatants entitled to prisoner of war protections) or the Fourth Geneva Convention (civilians); there is no intermediate status, as correctly underlined in LIBE's Opinion.
The rapporteur therefore shares the unanimous views of the UN High Commissioner on Human Rights (UNHCR), the Council, LIBE and some human rights organisations and specialists and recommends this approach to the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy.
The rapporteur therefore shares the unanimous views of the UN High Commissioner on Human Rights (UNHCR), the Council, LIBE and some human rights organisations and specialists and recommends this approach to the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy.
The competent jurisdiction
The competent jurisdiction
Guantanamo Bay constitutes part of the territory of the Republic of Cuba, although there is clearly no question of the Guantanamo detainees availing themselves of the protection of Cuban law.
Guantanamo Bay constitutes part of the territory of the Republic of Cuba, although there is clearly no question of the Guantanamo detainees availing themselves of the protection of Cuban law.
In fact, the US have been exercising effective control over the territory of the military base since Cuba was granted independence, in accordance with the bilateral agreement concluded in 1903 between the two countries concerning the coaling and naval station on that part of the island - and in spite of "the facto" opposition of the Cuban Government since 1959.
In fact, the US have been exercising effective control over the territory of the military base since Cuba was granted independence, in accordance with the bilateral agreement concluded in 1903 between the two countries concerning the coaling and naval station on that part of the island - and in spite of "the facto" opposition of the Cuban Government since 1959.
However, the US Supreme Court has so far taken the view that there is no US Federal court which is competent to entertain petitions from aliens detained by American forces on foreign territory and that, unlike US citizens, such detainees enjoy no guarantees under the US Constitution.
However, the US Supreme Court has so far taken the view that there is no US Federal court which is competent to entertain petitions from aliens detained by American forces on foreign territory and that, unlike US citizens, such detainees enjoy no guarantees under the US Constitution.
This is not the view of the rapporteur, who shares instead the legal position adopted by the International Committee of the Red Cross (ICRC) stating that the legal status of the detainees at the base in Guantanamo Bay (prisoner of war or otherwise) must be determined by the US authorities on an individual basis for each detainee.
This is not the view of the rapporteur, who shares instead the legal position adopted by the International Committee of the Red Cross (ICRC) stating that the legal status of the detainees at the base in Guantanamo Bay (prisoner of war or otherwise) must be determined by the US authorities on an individual basis for each detainee.
It is assumed, therefore, that the US may establish a 'competent court' within the meaning of the Geneva Convention or designate an existing body, or a body provided for therein, to assume that role and that, pursuant to the 1968 Vienna Convention on the Law of Treaties, that requirement may be disputed only by the circumstance that, with regard to the reception of the detainees, US domestic law provides that they have no means of legal remedy before US, foreign or international courts.
It is assumed, therefore, that the US may establish a 'competent court' within the meaning of the Geneva Convention or designate an existing body, or a body provided for therein, to assume that role and that, pursuant to the 1968 Vienna Convention on the Law of Treaties, that requirement may be disputed only by the circumstance that, with regard to the reception of the detainees, US domestic law provides that they have no means of legal remedy before US, foreign or international courts.
The problem is that POWs accused of crimes are entitled to trial by court-martial or regular civil court, whereas by denying POW status the US executive have opened up the possibility that the detainees may be tried by so-called military commissions Following the Geneva Conventions the military has jurisdiction to try enemy POWs and civilians, including "unlawful belligerents" for violations of the law of war but not, for example, to try detainees for pre-capture acts not committed within occupied territory or in connection with the armed conflict.
The problem is that POWs accused of crimes are entitled to trial by court-martial or regular civil court, whereas by denying POW status the US executive have opened up the possibility that the detainees may be tried by so-called military commissions Following the Geneva Conventions the military has jurisdiction to try enemy POWs and civilians, including "unlawful belligerents" for violations of the law of war but not, for example, to try detainees for pre-capture acts not committed within occupied territory or in connection with the armed conflict.
Moreover, Article 102 of the Geneva Convention for the Treatment of Prisoners of War clearly states that, "A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power... ".
Moreover, Article 102 of the Geneva Convention for the Treatment of Prisoners of War clearly states that, "A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power... ".
Further, Article 84 provides: "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognised, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105 (under which the POW shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter, to be advised of these rights by the Detaining Power in due time before the trial, etc.).
Further, Article 84 provides: "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognised, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105 (under which the POW shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter, to be advised of these rights by the Detaining Power in due time before the trial, etc.).
In fact, on 3 July 2003, President Bush decided that six of the detainees would be subject to possible trial by military commissions for terrorist activities against the US.
In fact, on 3 July 2003, President Bush decided that six of the detainees would be subject to possible trial by military commissions for terrorist activities against the US.
It should be recalled however that even for the trial of any possible "unlawful beligerant" not considered either POW or a civilian but rather in a separate category outside of the Geneva Convention, the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised people is strictly forbidden.
It should be recalled however that even for the trial of any possible "unlawful beligerant" not considered either POW or a civilian but rather in a separate category outside of the Geneva Convention, the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised people is strictly forbidden.