The International League Against Arbitrary Detention urges the Governments of the United States of America, Pakistan and Romania to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 18/2023 concerning Mr. Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi starting for the Government of the United States of America to immediately release Mr. al Uzaybi and for the Governments of the United States of America, of Pakistan, and of Romania to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WDAG Opinion concerning Mr. Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi (United States of America, Pakistan and Romania): Opinion No.18/2023
UNLAWFULLY ARRESTED AND SUBJECTED TO ENFORCED DISAPPEARANCE
Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi is a national of Libya, born on 1 November 1970. Mr. al-Uzaybi was allegedly arrested by Pakistani military forces in Pakistan on 2 May 2005. He was then rendered by Pakistan into the custody of the Central Intelligence Agency and transported to Afghanistan and Romania where he was tortured for several months.
In these circumstances, the Working Group found that Mr. al-Uzaybi was subjected to enforced disappearance, in violation of articles 9 and 14 of the Covenant, which constitutes a particularly aggravated form of arbitrary detention, rendering Mr. al-Uzaybi’s deprivation of liberty without any legal basis in violation of article 9(1) and (2) of the Covenant. The Working Group noted that Mr. al-Uzaybi was placed outside the protection of the law, in violation of article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant and was denied the opportunity to be heard before an independent, impartial tribunal and to challenge the legality of his detention in violation of article 9 (3) and (4) of the Covenant.
Therefore, recalling the principle of joint responsibility, the Working Group concluded the United States, Pakistan and Romania to be jointly responsible for the arrest, rendition and arbitrary detention of Mr. al-Uzaybi, all without legal basis, which constitutes arbitrary detention under category I (Pakistan, Romania, United States).
SUBJECTED TO ACTS OF TORTURE FOR OVER 460 DAYS AND DENIED THE RIGHT TO A FAIR TRIAL FOR OVER 17 YEARS
Mr al-Uzaybi was allegedly tortured in detention by the Central Intelligence Agency in Romania and in Afghanistan for over 460 days in order to obtain self-incriminating statements. The torture allegedly resulted in severe hearing loss, brain damage, memory loss, spinal injuries, sleep disruption, post-traumatic stress disorder and other chronic medical problems.
The Working Group stated that the prohibition of torture is non-derogable, including during the fight against terrorism, and encompasses the prohibition of the use of evidence obtained under torture. The Working Group considered that such materials may have been used to justify Mr. al-Uzaybi’s ongoing detention, in violation of article 7 and 14 of the Covenant and article 15 of the Convention against Torture. The use of such evidence raised serious concerns about due process. Noting the severity of the alleged abuse, the Working Group found that Mr. al-Uzaybi would not have been able to effectively participate in the legal proceedings conducted, in violation of his due process rights.
Additionally, the Working Group noted the unrefuted allegations that Mr. al-Uzaybi did not have access to a lawyer for two years after arriving at Guantanamo Bay. Furthermore, during proceedings ex parte evidence was used in violation of fair trial rules as well as statements obtained through torture, in violation of his rights to be presumed innocent and not to be compelled to confess guilt under article 14 (2) and 14 (3) (g) of the Covenant. Accordingly, the Working Group found that Mr. al-Uzaybi was deprived of his due process rights, and that the extensive period of Mr. al-Uzaybi’s detention without trial, exceeding 17 years, violated his rights to be tried within a reasonable time and without undue delay under article 9 (3) and article 14 (3) (c) of the Covenant.
The Working Group consequently found his deprivation of liberty to be arbitrary under category III.
INDEFINITELY DETAINED IN GUANTANAMO BAY AS A RESULT OF HIS NATIONALITY AND RELIGION
The Working Group found that Mr. al-Uzaybi’s indefinite detention in Guantanamo Bay as an enemy combatant is allegedly directly linked to the fact that he is a Muslim foreign national. While in custody of the United States, Mr. al-Uzaybi was allegedly frequently questioned on his religious and political views relating to the United States foreign policy. The Working Group noted that various denials of and restrictions on rights, ordinarily non-applicable within the United States, apply exclusively to non-national Muslim men at Guantanamo Bay.
The Working Group recalled that discrimination on the basis of status as a foreign national or religion constitutes a violation of the principle of equality before the law and concluded that Mr. al Uzaybi was denied equality before the law in violation of articles 2, 5(a) and (b) and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
Therefore the Working Group concluded that Mr. al-Uzaybi’s detention is also arbitrary under category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In the light of the foregoing, the UN Working Group Against Arbitrary Detention considered that the detention of Mr. Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi was arbitrary and fell under categories I and III (Pakistan, Romania, United States), and V (United States) because his deprivation of liberty was in contravention of articles 2, 5, 7, 9 and 10 of the Universal Declaration of Human Rights and articles 2 (3), 7, 9 (1), (2), (3) and (4), 10 and 14 (3) (c) and 26 of the International Covenant on Civil and Political Rights.
The Working Group expressed concern regarding the source’s unrebutted allegation that Mr. al-Uzaybi is the most severely impaired and incapacitated detainee at Guantanamo Bay and that his health is declining in the absence of medical care. The Working Group recalled that in contexts deprivation of liberty, violations of the right to health interfere with fair trial guarantees, the prohibition of arbitrary detention and of torture and other forms of cruel, inhuman or degrading treatment, and the enjoyment of the right to life. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. al-Uzaybi immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
Finally, the Working Group highlighted that his conclusions apply to other detainees in similar situations in Guantanamo Bay. The Working Group expressed grave concern about the pattern that all these cases follow and recalled that under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law may constitute crimes against humanity.
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