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 armed conflicts, such as in Afghanistan, fall under the regime of international humanitarian law (IHL) and should be treated accordingly. (See the relevance of IHL in the context of terrorism)

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 he was detained in.

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 either for imperative reasons of security or on suspicion of having committed crimes.

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

Persons detained as suspected criminals, whether within the context of armed conflict or outside it, 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, i.e. 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 does not believe that there is presently a legal regime in place that appropriately addresses either the status of the detainees at Guantanamo, Bagram or Charleston or which clarifies the future of their detention.

The ICRC insists on the need for more robust procedural safeguards, especially in Guantanamo Bay and in Bagram, Afghanistan, where - to this day – most detainees live in uncertainty about their fate.

The ICRC believes that this has added to the mental and emotional strain experienced by many detainees and their families.

The ICRC has repeatedly expressed its concern about persons held in undisclosed, secret detention and has requested access to them (press release of 16.01.2004). As stated by President Kellenberger in 2006 (press release of 12.05.2006) "No matter how legitimate the grounds for detention, there exists no right to conceal a person's whereabouts or to deny that he or she is 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.

Since October 2006, the ICRC regularly visits the 15 detainees previously held incommunicado by the CIA and currently detained at Guantanamo.

The ICRC maintains a bilateral and confidential dialogue with the US government on ensuring access to all persons detained in the fight against terrorism.

The ICRC 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 World War One. The ICRC's practice of visiting prisoners of war – 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 moreover 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 in which States party to the Geneva Conventions including the United States, participated.

In 2006, the ICRC visited 478,000 prisoners of war and detainees in more than 70 countries (see Protecting prisoners and detainees in wartime).

The role of the ICRC, as an independent and neutral humanitarian organisation with a mandate conferred on it by states, is to regularly assess the conditions of detention, the treatment of detainees and respect of their fundamental judicial guarantees. The ICRC offers observations and makes recommendations for improvements - where appropriate - in the course of its ongoing confidential dialogue with the relevant authorities. Concerning Bagram, Guantanamo Bay 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 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.

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 over their future. 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 exercise, 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 is a time consuming exercise.

The ICRC interviews in private any detainee about to be transferred out of Guantanamo Bay and Bagram to allow him the opportunity to raise any possible fears of persecution should he be sent home or to a third country. The ICRC then relays the detainee's comments 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 ('non-refoulement'). Regardless of any ICRC involvement, the US authorities are primarily responsible for the respect of this rule and the implementation of the necessary procedures.

The ICRC endeavours to follow up on all cases of detainees transferred from Guantanamo Bay and Bagram to third countries, particularly if they are subsequently rearrested and deprived of their liberty. The ICRC aims to visit these detainees in their new place of detention to ensure that their treatment and the conditions of detention are in conformity with international legal requirements. Its findings will be communicated exclusively to the detaining authorities, 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, Guantanamo Bay 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, Guantanamo Bay 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 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.