Many countries, including the United States, face significant challenges in protecting their citizens against the threat of terrorism. This may require states to detain suspected terrorists. Nevertheless, there remain significant differences of opinion between the ICRC and the US, in particular, about the relevant legal framework regarding some of the persons detained in the fight against terrorism.

The ICRC visits people captured in the context of the fight against terrorism and held at US detention facilities at Bagram BTIF in Afghanistan and in Guantanamo Bay, Cuba. It also visits one detainee held in Charleston, South Carolina, in the US.

The detention of persons captured or arrested within the context of the fight against terrorism must take place within a clear and appropriate legal framework and in full respect of the relevant procedural safeguards. No person deprived of their liberty should be detained and interrogated outside of an appropriate legal framework.

People held in connection with international armed conflicts fall under international humanitarian law (IHL) and should be treated accordingly. (See the relevance of IHL in the context of terrorism)

Those held in connection with a non-international armed conflict fall under Article 3 common to the four Geneva Conventions and the rules of customary international humanitarian law, as well as the relevant rules of international human rights law and domestic law.

Those persons arrested outside of a situation of armed conflict have rights enshrined in a number of other bodies of law, such as international human rights law, as well as relevant provisions of domestic law.

The ICRC has adopted a case-by-case approach to determine whether situations arising from the fight against terrorism amount to an armed conflict or not. It believes that the status of each individual detainee should be determined based on the rules applicable to the situation in which they were detained.

Detention for security reasons or prosecution

In the fight against terrorism, the ICRC sees two main categories of detainees: those detained in relation to an armed conflict and those detained outside of armed conflict.

Persons detained in relation to an armed conflict may be detained for either imperative reasons of security or on suspicion of having committed a crime.

Persons detained for imperative reasons of security must be held within a valid legal framework that provides appropriate procedural safeguards to ensure that their detention is lawful. For example, they are entitled to an independent and impartial periodic review of whether their continued detention is justified for security reasons.

Persons detained as suspected criminals, within or outside the context of an armed conflict, can be prosecuted. Indeed, those suspected of having committed war crimes or other serious violations of IHL should be held accountable for their actions.

All persons put on trial must be afforded essential judicial guarantees necessary to a fair trial, including the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to qualified legal counsel and the exclusion of any evidence obtained through torture or other cruel, inhuman or degrading treatment.

Legal status and procedural safeguards

While acknowledging that some progress has been made, the ICRC continues to insist on the need for improved legal frameworks that would appropriately address the status and clarify the future of detention for the people held at Guantanamo, Bagram BTIF and Charleston.

The ICRC maintains an ongoing dialogue with the relevant US authorities on the procedural safeguards to be respected when detaining people for imperative security reasons. Such minimal safeguards aim to ensure the transparency and fairness of the process for reviewing internment/administrative detention and help alleviate the mental and emotional strain experienced by detainees and their families caused by the uncertainty about their fate.

In relation to the question of legal frameworks, there have been two important developments: The US Supreme Court decision in June 2008 to grant habeas corpus rights to Guantanamo detainees and the establishment of Enemy Combatant Review Boards at Bagram BTIF in Afghanistan.

The Supreme Court ruling gives Guantanamo detainees the right to challenge the lawfulness of their detention before regular, US civilian courts. This means that proceedings can be brought by any Guantanamo detainee and require that the detaining authority or agency justify the legality of the detention. The ICRC is monitoring the impact of legal developments in relation to the Habeas Corpus ruling and will communicate any observations or concerns directly to the US authorities if needed.

Meanwhile, the Enemy Combatant Review Boards at Bagram examine, every six months, whether to release any of the detainees or keep them in custody. This positive step does not mitigate the need for more robust procedural safeguards at Bagram BTIF.


Undisclosed detention

The ICRC has repeatedly expressed its concern about persons held in undisclosed, secret detention and has requested access to them. The ICRC firmly believes that no matter how legitimate the grounds for detention, there exists no right to conceal a person's whereabouts or to deny that they are being detained. The ICRC believes that any type of secret detention is contrary to a range of different legal provisions including the International Convention for the Protection of All Persons from Enforced Disappearance.

The ICRC is an independent, humanitarian organisation, which has been visiting people detained in connection with armed conflicts since 1915, when its delegates first negotiated access to tens of thousands of prisoners of war held during the First World War. The ICRC's practice of visiting combatants captured during an international armed conflict was codified in the Geneva Conventions of 1949, to which all states are party.

Common Article Three of the four Geneva Conventions also gives the ICRC the right to request access to persons detained in non-international armed conflicts, such as civil wars. Under the statutes of the International Red Cross and Red Crescent Movement, the ICRC can also request access to persons detained in connection with situations of violence that fall below the threshold of armed conflict. These statutes were approved in 1986 by the International Conference of the Red Cross, to which States party to the Geneva Conventions, including the US, participated.

Each year, the ICRC visits roughly half a million prisoners and detainees in more than 70 countries worldwide. (see Protecting prisoners and detainees in wartime).

The ICRC is mandated by the international community, under the 1949 Geneva Conventions and the Additional Protocols, to regularly assess the conditions of detention, the treatment of detainees in conflict situations around the world. This is to ensure respect for their life, dignity and fundamental right to judicial guarantees. The visits also aim to prevent ill-treatment and enable the ICRC to track detainees' whereabouts and make recommendations to the relevant authorities concerning any improvements to conditions that may be necessary. These observations are part of the ICRC's ongoing confidential dialogue with the detaining authorities. Concerning Bagram BTIF, Guantanamo and Charleston, the responsibility for ensuring that detainees are treated in accordance with international humanitarian law and other applicable bodies of law lies with the US authorities.

The ICRC's visits to Bagram BTIF and Guantanamo Bay are a continuation of the work the organisation had been carrying out in detention places in Afghanistan during the war in 2001.

To ensure that its analysis is as complete and unbiased as possible, the ICRC follows a set of rules when visiting detainees, regardless of the circumstances.

ICRC detention visits are usually carried out by a team of specialised delegates as well as interpreters and medical personnel when appropriate. The organisation follows the same standard working procedures wherever it visits detainees. These include:

• ICRC delegates must be able to speak in total privacy with each and every detainee held; delegates inspect all cells and other facilities.
• Visits are carried out at a frequency of the ICRC's choice and for as long as people are held in detention.
• All detainees have the opportunity to write to their families using the Red Cross message system and to receive Red Cross messages from their next of kin.
• Delegates conduct confidential discussions with the camp authorities before and after each visit to raise concerns and make recommendations where appropriate.
• The ICRC individually registers the identities of detainees falling within its area of concern. This makes it possible to monitor the situation of each detainee throughout his or her period in detention.

For most detainees and their families, Red Cross messages are an important means of maintaining regular contact and can thus help to alleviate feelings of isolation and uncertainty. Red Cross messages are intended for the exchange of personal and family news and are censored by the US authorities. This corresponds to standard worldwide practice wherever the ICRC visits places of detention.

The Red Cross message service for detainees and their families is a major logistical undertaking, involving a number of ICRC delegations worldwide, as well as national Red Cross and Red Crescent societies in the detainees' home countries. Every message is delivered by hand to the detainees and their families. Given the constraints involved, message collection and distribution can be a time-consuming process.

Since 2002, the ICRC has facilitated the exchange of almost 40,000 Red Cross messages between Guantanamo detainees and their families, as well as almost 69,000 Red Cross messages between US-held detainees in Afghanistan and their loved ones.

An annual phone call system, facilitated by the ICRC through its delegations around the world, was implemented by the US authorities in April 2008. It is designed to enable Guantanamo detainees to speak to their families on an annual basis. "Humanitarian phone calls" are also facilitated by the ICRC at Guantanamo. They enable detainees to talk to their relatives when a significant event happens in their family, such as the death of a loved one.

Since January 2008, prisoners at Bagram BTIF have been able to communicate with their relatives via a video phone call system. The video link, set up by the ICRC and the US authorities, allows detainees to see and talk to their loved ones for 20 minutes at a time. They can repeat the video call every two months. As of July 2008, almost 1,200 such video calls had been placed from Bagram BTIF. (See press release on the programme)

In general, the ICRC pushes for face-to-face visits between detainees and their families because nothing can replace seeing a loved one in-person. However, the ICRC views the establishment of phone and video links at Guantanamo and Bagram BTIF as a positive development.

The ICRC speaks in private with detainees who are about to be transferred home or to a third country to allow individuals the opportunity to raise any possible fears of persecution following their transfer. The ICRC then relays the detainee's concerns to the detaining authorities and makes recommendations as to how to proceed. This procedure aims to ensure respect for the internationally recognised prohibition of all forms of transfer of a person to an authority if there is a risk that the person will face ill-treatment (also known as non-refoulement). Regardless of any ICRC involvement at Guantanamo or Bagram BTIF, the US authorities are primarily responsible for ensuring this rule is respected and for the implementation of the necessary procedures.

The ICRC strives to follow up on all cases of detainees transferred from Guantanamo and Bagram BTIF to third countries, particularly if they are subsequently rearrested and detained. The ICRC aims to visit these detainees in their new place of detention to ensure that their treatment and conditions of detention are in-line with international legal requirements. The ICRC's findings are communicated exclusively to the detaining authority, not to the US authority that transferred them.

ICRC delegates are often present when detainees are transferred or released and provide assistance when necessary to enable freed detainees to return to their families.

The ICRC primarily addresses issues related to detention through its direct and confidential dialogue with the US authorities. The ICRC regularly discusses its findings concerning Bagram BTIF, Guantanamo and Charleston with the military authorities in the camps, as well as with the appropriate US government officials in Kabul and Washington.

Wherever the ICRC visits places of detention, its findings and observations about the conditions of detention and the treatment of detainees are discussed directly and confidentially with the authorities in-charge. Bagram BTIF, Guantanamo and Charleston are no exceptions. The ICRC's lack of public comment on the conditions of detention and the treatment of detainees in more than 70 countries, where it visits places of detention, must therefore not be interpreted to mean that it has no concerns.

Confidentiality is an important working tool for the ICRC in order to preserve the exclusively humanitarian and neutral nature of its work. The purpose of this policy is to ensure that the ICRC obtains and, importantly, maintains access to detainees around the world, who are held in highly sensitive situations of armed conflict or other situations of violence. Working outside the spotlight of media attention often makes it easier for the ICRC and the detaining authorities to achieve concrete progress in detention places.

The ICRC is also concerned that any information it divulges about its findings in places of detention could easily be exploited for political gain. The ICRC furthermore regrets the fact that on a number of occasions over the past years confidential information transmitted to the US authorities was published by the media. The ICRC has never passed on confidential information to the media nor did it consent to the publication of such information.