By Hla Myet Chell (International Law)
I. Introduction
The Guantanamo Bay Detention Centre, established in the aftermath of the 11 September 2001 terrorist attacks, remains one of the most controversial symbols of the global War on Terror. Located on the US naval base in Cuba, Guantanamo has sparked international debate due to allegations of human rights violations, legal loopholes, and its use as a political tool in American domestic affairs. This article examines Guantanamo Bay through the lens of international law and explores how successive US presidents have leveraged it to navigate political landscapes at home.
II. Historical Context
Guantanamo Bay’s history as a US military base dates back to 1903, but its transformation into a detention centre for terrorism suspects brought it to global attention. In early 2002, the US government began detaining individuals captured in Afghanistan and other regions, designating them as “unlawful combatants” to circumvent protections afforded under the Geneva Conventions. Over the years, Guantanamo has become a focal point for debates on the balance between security and human rights.
III. International Law Perspective
Legal Frameworks and Violations
International law offers robust protections for individuals, even in times of conflict. Key legal frameworks include the Geneva Conventions, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR), all of which provide fundamental rights to detainees, including protections against torture, cruel, inhuman, or degrading treatment, and the right to a fair trial. These instruments, which reflect the international community’s commitment to human dignity, apply even in wartime and are central to the debate surrounding Guantanamo Bay.
The Geneva Conventions, particularly the Third Geneva Convention, which deals with the treatment of prisoners of war, mandates that detainees in armed conflicts be treated humanely. It prohibits torture, and degrading treatment, and demands that detainees be afforded due process, including the right to a fair trial. However, the US government has argued that the detainees at Guantanamo are “unlawful combatants,” a term created to exclude them from the protections of the Geneva Conventions. This legal interpretation, however, has been challenged in both US and international courts, leading to key rulings such as Hamdan versus Rumsfeld (2006), which affirmed that detainees are entitled to some protections under the Geneva Conventions.
The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, affirms the inherent dignity and equal and inalienable rights of all human beings. Article 9 of the UDHR explicitly prohibits arbitrary arrest, detention, or exile, while Article 10 guarantees the right to a fair and public hearing. The indefinite detention of individuals at Guantanamo Bay, without charge or trial, directly contravenes these fundamental rights. The US has faced significant criticism for its failure to provide fair trials to detainees, with several detainees held for years without any formal charges being brought against them.
The International Covenant on Civil and Political Rights (ICCPR), which the US ratified in 1992, also protects individuals from arbitrary detention and guarantees a fair trial, including access to legal representation and the right to contest the legality of detention. Yet, Guantanamo’s practices, including prolonged detention without charge, lack of access to legal counsel for extended periods, and the denial of habeas corpus rights, have been repeatedly condemned by human rights groups as a violation of the ICCPR.
Beyond these well-established instruments, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), ratified by the US in 1994, specifically prohibits the use of torture and requires states to take effective measures to prevent such practices. Guantanamo Bay’s use of enhanced interrogation techniques, often referred to as torture by human rights organizations, stands in direct violation of this convention. The United Nations has repeatedly called for the US to close the facility and end the practices that contravene its international obligations under the CAT.
Despite these legal frameworks, the US has argued that Guantanamo is an exception due to its status as a military detention facility located on a foreign naval base. This argument has been challenged in various legal proceedings. In Boumediene versus Bush (2008), the US Supreme Court ruled that detainees at Guantanamo have the constitutional right to challenge their detention in US courts, reaffirming that the US cannot disregard the rule of law simply because the detention centre is located outside the US mainland.
Despite these rulings and international condemnation, the US has continued to defend its practices at Guantanamo, arguing that the need for national security in the context of the War on Terror justifies these extraordinary measures. However, the continued operation of the detention centre and the lack of accountability for the violations committed there call into question the US’s commitment to upholding international law, further complicating its moral and legal standing in the global community.
In sum, the legal frameworks protecting the rights of detainees – whether through the Geneva Conventions, the UDHR, the ICCPR, or the CAT – are clear in their prohibition of arbitrary detention, torture, and the denial of due process. The ongoing violations at Guantanamo Bay represent a significant breach of these international standards and raise crucial questions about the compatibility of US counterterrorism policies with international human rights law.
IV. Domestic Politics and Guantanamo Bay
A. Political Tool in US Elections Guantanamo Bay has not only been a topic of legal and human rights debates but also a potent political tool in US presidential elections. President Obama’s 2008 campaign included a pledge to close the facility, symbolizing a shift towards restoring US adherence to international law. However, despite initial efforts, political opposition, logistical challenges, and legislative barriers stalled the closure process. The Trump administration reversed this stance, emphasizing a “tough on terrorism” approach, including the potential expansion of the detention facility. As President Biden nears the end of his administration, discussions regarding the closure of Guantanamo are ongoing, but the facility remains operational. The key question now is how the incoming Trump administration will approach the centre’s future.
B. Symbol of National Security Domestically, Guantanamo Bay has been presented as an essential tool for safeguarding US national security. This framing resonates with a significant portion of the electorate, particularly those prioritizing counterterrorism measures over civil liberties. By keeping Guantanamo open, US presidents have attempted to project strength and resolve in the face of international terrorism, while sidestepping the complexities of prosecuting detainees within the US judicial system.
C. Congressional and Public Opinion Efforts to close Guantanamo Bay have faced significant resistance in Congress, where bipartisan opposition has led to legislative gridlock. Public opinion, shaped by persistent fears of terrorism, has further complicated efforts to dismantle the facility. Congressional leaders have expressed concerns that closing Guantanamo could endanger national security, while others argue that the US must adhere to international human rights standards. This tension underscores the broader challenge of reconciling domestic security concerns with global legal norms.
V. Stories of Detainees
Guantanamo Bay’s legacy is not solely shaped by legal arguments and political manoeuvring but also by the individual stories of those detained there. These stories illustrate the human cost of the detention policies:
• Mohamedou Ould Slahi: A Mauritanian national held at Guantanamo for 14 years without charge. His memoir, Guantánamo Diary, offers a searing account of torture and psychological abuse. Slahi’s experiences underscore the absence of due process and the consequences of relying on flawed intelligence.
• Omar Khadr: A Canadian citizen, Khadr was captured in Afghanistan at 15 years old and detained at Guantanamo for over a decade. His case drew international attention due to his age and the allegations of coercion during interrogation. After his release, Khadr’s story became emblematic of the ethical challenges surrounding the detention of juveniles.
• Shaker Aamer: The last British resident held at Guantanamo, Aamer spent 14 years in detention without trial. He was eventually released in 2015, after consistently denying allegations of terrorism. Aamer’s case exemplifies the difficulties of proving guilt or innocence in a system built on secrecy and a lack of transparency.
These individual stories highlight broader issues with Guantanamo’s reliance on unreliable intelligence, the treatment of detainees, and the challenge of balancing national security with human rights.
VI. Global Perception and Diplomacy
Guantanamo Bay has severely damaged the US’s reputation as a leader in upholding human rights and international law. The facility’s continued existence has strained relations with both allies and adversaries, who have criticized the US for its treatment of detainees and its failure to close the detention centre despite widespread international condemnation. The United Nations, the European Union, and numerous human rights organizations have called for the closure of Guantanamo, arguing that it symbolizes a disregard for the Geneva Conventions and the Universal Declaration of Human Rights.
For US allies, particularly those in the European Union, Guantanamo represents a fundamental contradiction in American foreign policy. While the US promotes democracy, freedom, and human rights abroad, its actions at Guantanamo undermine these ideals, raising concerns about US credibility in international diplomatic spheres. Moreover, the continued detention of individuals without trial has prompted accusations of hypocrisy, especially as the US positions itself as a global advocate for the rule of law.
Adversaries of the US have leveraged Guantanamo as a propaganda tool, using it to critique American foreign policy and cast the US as a violator of international norms. Terrorist groups, in particular, have cited the existence of Guantanamo as evidence of US hypocrisy, which serves to further fuel anti-American sentiments. The global perception of Guantanamo Bay thus complicates US diplomatic efforts, creating a significant diplomatic rift that could take years to mend.
VII. Legal and Ethical Implications
The long-term consequences of Guantanamo’s legal anomalies are profound and far-reaching. By circumventing international legal norms and the protections granted by the Geneva Conventions, the US risks undermining the rule of law, both domestically and internationally. This legal exception sets a dangerous precedent for other countries, potentially encouraging them to adopt similar practices in the name of national security. The normalization of indefinite detention without charge or trial poses a grave threat to the principles of justice and accountability that should govern both US and international legal systems.
Ethically, Guantanamo’s practices raise serious concerns about the balance between national security and fundamental human rights. The use of torture, extraordinary rendition, and indefinite detention without trial not only violates international law but also questions the morality of such actions. As the US seeks to address terrorism threats, it must grapple with the ethical dilemmas posed by these methods. The question of whether the US can achieve its security goals without compromising its commitment to human rights remains one of the most pressing ethical challenges.
Furthermore, the long-term psychological and physical effects on detainees – especially those who have been held for years without charge – highlight the devastating consequences of indefinite detention. Many detainees, after being released, suffer from post-traumatic stress disorder (PTSD) and other psychological issues stemming from their mistreatment. These ethical and legal violations have far-reaching consequences, not only for those detained but also for the US’s moral authority in the global arena.
VIII. The Path Forward
To align with international legal standards and restore its credibility, the US must take decisive steps to either reform or close Guantanamo Bay. The continued operation of the facility, despite the growing international outcry, presents a serious challenge to the US’s role as a global leader in human rights. The first and most critical step would be ensuring fair trials for the remaining detainees. This could involve transferring detainees to the US for civilian trials or, where appropriate, repatriating them to their home countries.
Additionally, providing reparations for the human rights violations that have occurred at Guantanamo is essential for healing and reconciliation. This could take the form of compensation to detainees who have been wrongfully detained or subjected to torture, as well as public acknowledgement of the injustices they have suffered. The US must also reaffirm its commitment to international human rights norms, not only by closing Guantanamo but also by ensuring that future counterterrorism measures comply with international law.
IX. Conclusion
Guantanamo Bay stands as a powerful symbol of the challenges faced by the US in balancing national security with respect for the rule of law and international human rights standards. As a legal anomaly and political tool, it reflects the tensions inherent in navigating global security challenges. Resolving the Guantanamo dilemma requires not just policy reforms, but a profound shift in the US’s approach to counterterrorism – one that places a stronger emphasis on due process, human rights, and adherence to international legal norms. The closure of Guantanamo Bay would not only restore US credibility on the global stage but also reaffirm the importance of upholding the core principles of justice and dignity that underpin the international legal order.
References
1. Hamdan versus Rumsfeld, 548 US 557 (2006).
Supreme Court ruling affirming that detainees at Guantanamo Bay are entitled to certain protections under the Geneva Conventions.
2. Boumediene versus Bush, 553 US 723 (2008).
Supreme Court decision extending the right of habeas corpus to detainees at Guantanamo Bay, rejecting the argument that they were beyond the reach of US courts.
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Available at: https://www.icrc.org/en/document/geneva-conventions.
5. United Nations (1984). Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Available at: https://www.ohchr.org/en/professional-interest/ pages/cat.aspx.
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Available at: https://www.ohchr.org/en/press-releases/2006/06/ guantanamo-human-cost-americas-war-terror.
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