January 9, 2004
Two years after opening a detention camp at its naval base at Guantanamo Bay, Cuba, the United States continues to ignore international law in its treatment of the detainees.
The Bush Administration asserts that all of its detainees at Guantanamo are enemy combatants in the war against terrorism and therefore properly detained until terrorism is vanquished. High-level administration officials have repeatedly characterized the detainees as the “worst of the worst.” In response to questions about their fate, President George W. Bush has called the detainees “bad people” and Secretary of Defense Donald Rumsfeld has labeled them “hard core, well-trained terrorists.”
Yet these blanket characterizations stand in sharp contrast to what is known about at least some of the detainees. At Guantanamo there are three children, between the ages of thirteen and fifteen, who have been held for about a year. The military is also jailing an undisclosed number of children aged sixteen and seventeen who are held in the adult camp, rather than separately as required by international standards.
Guantanamo may also hold a significant number of civilians. Anti-Taliban forces in Afghanistan regularly cast a wide net, sweeping up non-combatants, and many of those they captured were delivered to U.S. officials, and in at least some cases in exchange for bounty payments. According to several sources, ranging from interviews with former detainees to press reports citing U.S. officials in Afghanistan, as many as several dozen detainees sent to Guantanamo were simply farmers, taxi drivers, and laborers with no meaningful ties to the Taliban or al-Qaeda—not the enemy combatants the Bush Administration claimed.
Whoever the detainees are—including those implicated in international terrorism—the United States is obligated to respect their fundamental rights under law.
Guantanamo Bay: Legal Black Hole
The Bush Administration has attempted to turn the forty-eight square miles of its naval base at Guantanamo Bay into territory beyond the reach of any law and outside the jurisdiction of any court. In its treatment of the detainees at Guantanamo, it has been unwilling to fully apply international humanitarian law (often called the laws of war), has flouted international human rights standards, and has fought hard to block judicial review by U.S. courts of the legality of its detentions. It has failed to articulate a clear legal framework which it applies to the detainees and which acknowledges their human rights and the government’s obligation to respect them. The administration has instead selectively invoked those rules of war that it finds helpful in detaining and interrogating individuals—such as the authority to hold combatants without charge until the end of hostilities—while ignoring other rules that safeguard combatants—such as those that require individual determinations of their legal status. The administration’s unwillingness to respect basic rights and to provide any legal process has undermined the rule of law and given a green light to other governments to justify rights violations in the name of counter-terrorism.
The U.S. refusal to comply with the clear requirements of the 1949 Geneva Conventions cannot be justified. Under the Third Geneva Convention, persons captured in the conflict in Afghanistan should have been treated as prisoners of war unless and until a competent tribunal individually determined that they are not eligible for prisoner of war (POW) status. The United States has never before balked at this straightforward requirement. Indeed, in the Persian Gulf War in 1991, the U.S. government convened 1,196 such tribunals and granted POW status to 310 detainees. The 886 remaining detainees were determined to be displaced civilians and treated as refugees.
Instead of complying with international law, U.S. military regulations, and longstanding U.S. practice, the Bush Administration has made a blanket determination that all persons held at Guantanamo Bay were “unlawful combatants” and were not entitled to the protections due prisoners of war or protected persons under the Geneva Conventions. Had the U.S. military conducted individualized determinations of status in competent tribunals as required by the Third Geneva Convention and its own regulations, it would have properly concluded that the Taliban fighters—as members of the regular armed forces of the then-government of Afghanistan—and perhaps other combatants were entitled to POW status. Moreover, it could have appropriately and accurately determined who was a combatant and who was not, who posed a grave security risk and who was just a farmer in the wrong place at the wrong time.
The U.S. government has sought to avoid the prohibition in international human rights law against prolonged, indefinite detention by claiming that terrorist suspects are combatants in the war against terrorism. Because the laws of war permit the detention of captured combatants until the end of hostilities, a vaguely framed war on terror without a clear end means that the detainees could effectively be held forever. In human terms, prolonged and indefinite detention can have a devastating psychological impact on detainees. Indeed, thirty-four suicide attempts have been recorded at Guantanamo to date. One of the former detainees interviewed by Human Rights Watch in Pakistan confirmed that he had attempted suicide three times at Guantanamo.
The Bush Administration is claiming far-reaching power to detain anyone in any corner of the world and to determine alone whether its actions are lawful. Some of the detainees at Guantanamo were captured far away from the battlefield in Afghanistan. Six Algerians were apprehended in Bosnia and handed over to U.S. officials in January 2002, despite a Bosnian high court order to release them, and sent to Guantanamo. The administration has claimed similar authority in its detention without charge of terrorist suspects arrested in the United States and held by the military as enemy combatants. These detentions threaten the right to liberty and the safeguards that protect against arbitrary detention without due process of law. In a government of laws and not men, the executive is not above the law. Wherever the United States exercises effective control over detainees, it is bound under international human rights standards to respect their rights, and some form of judicial review should be available to ensure that the government acts within the bounds of the law.
Legal Critiques: Courts and International Legal Experts
In December 2003, a federal appeals court in San Francisco ruled that U.S. courts have jurisdiction to hear claims from detainees at Guantanamo, and affirmed the crucial role that courts play in preventing the executive from running roughshod over individual rights. While the U.S. Supreme Court will ultimately resolve this question in June, the appellate court’s decision delivered a strong rebuke to the Bush Administration. The Court noted:
Under the government’s theory, it is free to imprison [detainees] indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with … these detainees as it will, when it pleases, without any compliance with any rule of law of any kind… Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees… It is the first time that the government has announced such an extraordinary set of principles – a position so extreme that it raises the gravest concerns under both American and international law.
A growing chorus of authoritative voices—including the Inter-American Commission on Human Rights, various U.N. bodies and other international agencies—have criticized the U.S. government for its failure to respect the rights of the detainees at Guantanamo Bay. A British appeals court stated that the detentions contravened fundamental principles of international law and referred to Guantanamo as a “legal black-hole.” The International Committee of the Red Cross (ICRC), which visits wartime detainees to ensure compliance with the Geneva Conventions, has voiced concern more publicly than is its usual practice. It has criticized U.S. authorities for placing the detainees “beyond the law” after repeatedly raising concerns about the detainees’ unresolved legal status and the lack of clear legal framework being applied by the United States. In addition, in its visits with the prisoners, the ICRC has witnessed the harmful psychological impact of the uncertainty of their open-ended internment.
After two years, it is long past time that the United States fulfill its legal obligations and resolve the cases of the detainees without further delay. In the absence of a lawful reason to detain a person, the U.S. government must either charge that person with a crime or release him or her. If it is holding detainees who are in fact combatants under the laws of war, the U.S. government must comply with requirements of those laws, which do not foreclose the ability of the United States to charge and prosecute them for war crimes or other international offenses. If it is holding civilians who do not pose an imperative risk to U.S. security, under international law they must be immediately released and repatriated unless they are charged with a crime.
Special rules apply to children. Under the Optional Protocol on Child Soldiers, which the United States has ratified, the U.S. government has specific legal obligations, including rehabilitation and reintegration of child combatants into their societies. The detainees aged sixteen and seventeen have not received the special protections required by international standards, including separation from adult prisoners, as is the case with the three younger detainees. Rehabilitation cannot happen in a detention camp at Guantanamo Bay, half a world away from their homes and families. The U.S. government should resolve the cases of all of the children held at Guantanamo without further delay. Indeed, the ICRC has stated that it does not consider Guantanamo an appropriate place to detain juveniles.
Military Commissions: A Failure of Justice
The solution to the Guantanamo problem does not lie, however, in bringing detainees before military commissions that are fundamentally flawed. Proceedings have not yet begun—only six of the 660 detainees have been designated eligible for trial by the military commissions, and none has yet been charged. Human Rights Watch has long maintained that persons responsible for war crimes, crimes against humanity, and acts of terrorism should be prosecuted. Accountability for such violations is vitally important, but true accountability requires fair trials. The military commissions established by President Bush fall far short of international due process standards. No one should be tried in the military commissions unless substantial changes are made, both in the way they are structured and in the trial procedure.
The planned military commissions will violate defendants’ rights in numerous ways. Under the rules, the President, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner. There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the U.S. military justice system. In addition, important legal issues that arise during a trial will not be decided by an independent body, but by the same military entity that initially approved the charges against the detainee.
An accused brought before the commissions would be severely limited in his ability to defend himself against charges. The rules permit the military to monitor private conversations between defense counsel and their clients, violating the fundamental notion of attorney-client confidentiality. Moreover, under the rules, the detainee’s civilian lawyer, even with a high-level security clearance, can be denied access to the evidence against the defendant or barred from attending closed court proceedings.
If the U.S. government persists in ignoring the requirements of international law in its treatment of the detainees at Guantanamo, much more will be harmed than the lives of those individuals. Hard fought gains in international law and protections for basic human rights will be undermined along with the rights of these detainees. The U.S. government should meet its legal obligations, establish a clear legal process, and resolve their cases without further delay. While those who have committed offenses should be charged, they must be given due process. If the U.S. government fails to provide for fair trials, the military commissions will produce verdicts that will not be seen as legitimate in the eyes of a world already deeply skeptical about the long-term detentions at Guantanamo. Two years on, the rules of law continues to buckle under the weight of the U.S. detention camp at Guantanamo Bay.