The Obama administration should release Guantánamo Bay inmates or try them in a court of law, said Navanethem Pillay, the U.N. High Commissioner for Human Rights. Her statement follows President Obama’s remarks last May indicating that some Guantánamo detainees were too dangerous to be released and might have to be held indefinitely. The High Commissioner’s comments represent the most serious challenge to President Obama’s decision to limit investigation into past abuses and to continue to hold some Guantánamo detainees without trial.

“The Obama administration has taken aggressive action on this issue from day one, upholding our nation’s fundamental values while making the American people safer,” responded Mark Kornblau, a spokesman for the U.S. mission to the United Nations, underscoring the administration stand on human rights. But, according to Ms. Pillay, “There is still much to do before the Guantánamo chapter is truly brought to a close.”

The fate of the Guantánamo detainees is one of the most contentious legal issues facing the Obama administration. In 2003, The International Committee of the Red Cross (ICRC) revealed its concern about the negative psychological impact that indefinite detentions were having on a large number of prisoners at Guantánamo, and on their families.

Although the detainees are entitled to judicial review, only a handful of them have received a hearing on the merits of their case. As Amnesty International has indicated,one year after the US Supreme Court ruled that the detainees were entitled to a prompt habeas corpus hearing to challenge the lawfulness of their detention, only a handful of them have received a hearing on the merits of their challenges. In addition, indefinite detention has continued even when judges have ordered the immediate release of detainees after such hearings.

When President Obama took office on 20 January 2009, there were approximately 245 men held at Guantánamo. Of those, about 200 had habeas corpus petitions pending in District Court. From inauguration day to early April 2009, only one detainee was released from Guantánamo, and the rest remained in indefinite detention at that facility.

The Obama administration has aptly rejected the term “war on terror” for US counterterrorism efforts, and has also stopped the use of the term “enemy combatant” in the Guantánamo detainee litigation process. However, as Amnesty International points out, “…it [the Obama administration] does not yet seem to be rejecting the substance of the insidious global war framework developed by its predecessor and, like the latter, is citing the Authorization for Use of Military Force (AUMF), a broadly worded congressional resolution passed after the attacks of 11 September 2001, as the basis for detentions.

According to the International Covenant on Civil and Political Rights (ICCPR), “Anyone whose rights have been violated must be able to seek effective remedy, including through the courts.” This principle is violated by the continuing delay faced by the Guantánamo detainees in having effective and timely access to judicial review.

Several legal and human rights organizations have seriously questioned the US government decision to keep Guantánamo detainees without charge or trial, and call that each detainee be either charged with a recognizable criminal offense for proper trial in existing federal courts or be immediately released.

As stated by the UN Human Rights Committee in its General Comment 29, Even when confronting situations that threaten the life of the nation, “in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished.”

As Ms. Pillay has stated, “Signals coming from America reverberate around the world. Sending the right ones is the responsibility of power.” The correct decisions on the fate of the Guantánamo detainees are an important test of the Obama’s administration intention to follow the rule of law in this controversial issue.