Guantanamo Bay – Camp X-Ray
Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights. This month's video is on the status of Guantanamo inmates, and the consistency of their treatments with international law.
In this video, Donald Rumsfeld asserts that the detention conditions at Guantanamo are humane, appropriate and respect "most" of the provisions contained in the Geneva Conventions. George Bush follows up by stating that the detainees are assassins, who do not share "our values".
This video is an excerpt from the film "The Road to Guantanamo", by Michael Winterbottom. The story draws its inspiration from real events: shortly after 11 September 2001, three young Englishmen who had gone to celebrate the wedding of a friend in Pakistan decided to take a trip to Afghanistan which was, at the time, under the control of the Taliban. They were arrested by the American Army and transferred to its base at Guantanamo in Cuba, only to be released two and a half years later for lack of sufficient evidence against them.
Since the beginning of the "war on terrorism" launched by the Bush administration in response to the attacks on the World Trade Centre and the Pentagon seven years ago, more than 750 individuals have been detained at the American base at Guantanamo. As of 29 October 2008, around 255 persons, supposed members of Al-Qaeda, the Taliban, or members of groups allied to these movements, are still being held there. An organisation concerned with the defence of human rights, reported in 2006 that more than 60 of these prisoners were minors at the time of their arrest. report by Human Rights Watch issued in 2006, less than half of the detainees at that date had been captured in Afghanistan by American troops and the majority of these prisoners had not been arrested for having participated in any conflicts, but merely for having held direct or indirect links with the Taliban. The majority of the other detainees had been handed over to the United States by Pakistan.
According to a report by Human Rights Watch issued in 2006, less than half of the detainees at that date had been captured in Afghanistan by American troops and the majority of these prisoners had not been arrested for having participated in any conflicts, but merely for having held direct or indirect links with the Taliban. The majority of the other detainees had been handed over to the United States by Pakistan.
Guantanamo base is directly dependant on the American military authorities, but lies outside of American territory. It is not considered to be a prison since it is outside of the US legal system. This is why, according to the Bush administration, prisoners at this camp cannot take their case to the US legal system (this argument was rejected, in June 2008, by the Supreme Court, whose decision allowed prisoners to contest their detention before the federal courts) Moreover, the possibility to try presumed terrorists before American military courts was not endorsed, for the reason that this would have conferred legitimacy on the detainees as "combatants" thereby authorising them implicitly to attack the enemy army, being in this case American soldiers.
Military commissions were therefore set up but were quickly denounced by civil society and UN organs as well as by the United States Supreme Court on 29 June 2006 due to the non respect of the most elementary principles involved in the right to a fair trial (no right of appeal, trial by executive power, limitations placed on the rights of the defence, admissibility of secret evidence and evidence obtained by coercion etc)
Moreover, the Guantanamo base is well known for its extremely tough interrogation techniques, for the torture and degrading treatment inflicted on its prisoners, which include water boarding, being forced to remain several hours in difficult positions, sleep and food deprivation and sensorial isolation. The majority of presumed terrorists are in practice, held in secret for indefinite periods without being charged or put on trial, or they are put on trial before military commissions as mentioned above.Additional Protocol I also applies to international armed conflicts, but was not ratified by either of the two States, and so its application remains limited to those dispositions that might be considered as having customary significance.)
However, far from being lost in a legal void, the Guantanamo detainees can be protected by international humanitarian law. How to determine their status and the resultant protection available is however delicate. Firstly, it depends on what is the applicable law, and thus the categorisation of the conflict during which the arrests were made, especially in Afghanistan. From the beginning of the American attacks against this country on 6 October 2001, until the transfer of authority to the Karzai government on 19 June 2002, a recognised international conflict existed. The four Geneva Conventions (GC) of 1949, to which Afghanistan and the United States are signatory parties, therefore apply to this period (the
More specifically, GC III provides for overall special safeguards for prisoners of war. This convention applies to members of the regular armed forces of any country but also to members of militia forces which fall into enemy hands, so long as these groups respect a hierarchical structure, can be recognised distinctively, openly bear their arms and conform to the laws of war (Article 4). Since these conditions were not systematically adhered to by the Taliban and the presumed terrorists, they were considered by the Bush administration to be "illegal combatants" and therefore did not qualify for the legal status of prisoners of war. This interpretation was rejected by the Supreme Court in the Hamdan affair, in which the court decided that CG 111 applied to the detainees at Guantanamo. Nevertheless, it is important to note that if they are not considered to have the status of combatant, these persons then automatically fall into the category of "civilians", which is covered under CG 1V, and although it does not offer protection equivalent to that of a prisoner of war, it nevertheless imposes extensive obligations on warring States.
The question of how to determine status is not an issue in the case of non-international armed conflicts, since the status of prisoner of war does not exist in law related to this type of conflict as it applies in Afghanistan since June 2002- when the conflict went from being one between States, to a conflict between the Karzaï government, "assisted" by a coalition of States led by the USA, and the Taliban and others. (See the Human Rights Watch report on this subject) Here the applicable law comes under Article 3 common to the four GC, which provides for a minimum of humane treatment to be accorded to all persons no longer taking part in hostilities and therefore to prisoners, and also under Additional Protocol II which, though it is not ratified by the United States and Afghanistan, nevertheless contains numerous dispositions reflecting customary law.
Whilst the protections accorded by GC III are more extensive and precise than those contained in GC IV, and especially also in common Article 3, all of them include the prohibition of attack on bodily integrity, torture, humiliating and degrading treatment and convictions being handed down without a proper trial conforming to indispensible legal guarantees. It would therefore appear that no matter how one qualifies the conflict and the status of the detainees at Guantanamo, their treatment is clearly not in line with these most basic requirements, as confirmed by the testimony of a former detainee in this video. expressed its willingness to close the detention centre and disband the military commissions, but is confronted with various political, legal and practical obstacles. The American authorities are reticent to bring detainees to trial before the military courts, as explained above, and assert also that having them tried in civil courts might compromise secret intelligence information and methods employed in the fight against terrorism.
What is more, each of these prisoners can avail himself of internationally recognised rights as set out in various international instruments concerning human rights. Indeed the application of the laws on human rights does not cease during times of war. Whereas a State might make exceptions from certain provisions in an emergency when the survival of the nation is at risk, both the prohibition of torture and the right to recognition as a person before the law are absolute. Furthermore, many prisoners at Guantanamo come from countries with which the United States is not at war and in theory are not covered by international humanitarian law. This is the case for example with Yemen or Algeria.
Today, even if the nightmarish interrogation techniques of the early years have ceased, detainees are still suffering from isolation and total uncertainty concerning their final fate. Four of them have committed suicide and hunger strikes are common.
Over the past two years, the Bush administration has expressed its willingness to close the detention centre and disband the military commissions, but is confronted with various political, legal and practical obstacles. The American authorities are reticent to bring detainees to trial before the military courts, as explained above, and assert also that having them tried in civil courts might compromise secret intelligence information and methods employed in the fight against terrorism.
Therefore, whereas it is felt to be difficult to try these prisoners in the United States, freeing them on the other hand, is considered to be too dangerous. An alternative solution consists of sending them to their respective countries of origin. Specifically, it was decided to send back detainees from Saudi Arabia, back to their country, where they are given "re-education" by moderate Muslim clergy, before being freed. Nevertheless to confer the follow –up on legal proceedings to the country of origin, where often they might be subject to inhumane treatment and a lack of legal guarantees appears to be a risky solution. As of 5 September 2007, around 50 prisoners at Guantanamo were from countries such as Algeria, China, or Uzbekistan, countries that have a well known history of torture. "Diplomatic guarantees " from the country of origin do not constitute efficient protection measures for these detainees as we have seen in several cases where ex-detainees fro Tunisia and Russia were subjected to inhumane treatment despite the guarantees given to Washington that they would be treated humanely.
Another possibility consists of extraditing the prisoners to a third party country. However, finding a country willing to accept presumed terrorists is not likely to be an easy task.
The American Administration will therefore need to demonstrate creativity in order to be able to close the Guantanamo dossier, without further compromising its international commitments with respect to international humanitarian law and human rights.
Sources :
AMNESTY INTERNATIONAL, Etats-Unis : Guantanamo, un modèle d’illégalité, AMR 51/002/2005, 6 janvier 2005.
HUMAN RIGHTS COMMITTEE, Concluding Observations on the Reports of the USA, CCPR/C/USA/CO/3, 15 September 2006.
HUMAN RIGHTS WATCH, " Enduring Freedom ", Abuses by US Forces in Afghanistan, Volume 16, No. 3(C), March 2004.
HUMAN RIGHTS WATCH, Ill-Fated Homecomings. A Tunisian Case Study of Guantanamo Repatriations, Volume 19, No. 4(E), September 2007.
MALINOWSKI Tom, " Restoring Moral Authority : Ending Torture, Secret Detention, and the Prison at Guantanamo Bay ", The Annals of the American Academy of Political and Social Science, 618, July 2008.
STEYN Johan, " Guantanamo Bay : The Legal Black Hole ", International and Comparative Law Quarterly, Vol. 53, January 2004, pp. 1-15.
VIERUCCI Luisa, " Prisoners of War or Protected Persons qua Unlawful Combatants ? The Judicial Safeguards to which Guantanamo Bay Detainees arEntitled ", Journal of International Criminal Justice 1, 2003, pp. 284-314.
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