Extraordinary renditions in Guantanamo Bay

ESSAY

Extraordinary renditions in Guantanamo Bay

- A sad chapter in American history - President B. Obama

According to the constructivits' point of view, states would tend to avoid behaving in ways that are legally unjustifiable. However, this theory does not seem to be internationally respected. The most striking example would be the United States, commonly known as a law-breaker, law- avoider and law-defector. Its law-breaker position can be, for instance, very well illustrated by the Guantanamo Bay issue, which has ineradicably become synonymous with torture. Indeed, this subject has caused much controversy and debates are still straddling. It became the centre of international attention in 2002 when horrible images and video recordings showing the most degrading forms of abuse commited at the Guantanamo Bay detention camp in Cuba were diffused by the media and spread across the entire world. Why? The Bush administration had decided after the 9/11 attacks that the Geneva Conventions of 1949 would not apply to the Taliban and al-Qaeda. Instead, the latter were (even) deprived of the basic human living conditions. What about the Obama administration today? Has the situation improved after the president announced his intention to close Guantanamo? Which consequences would the closure give way to? What happens to the detainees? This paper will deal with the evolution of the Guantanamo Bay issue from the Bush administration until the current Obama presidency.

The main focus of the Guantanamo debate lies on the Geneva Conventions, which are at the core of international humanitarian law, i.e. the body of international law that regulates the conduct of armed conflicts and aims at limiting their impact¹ The Conventions are specifically designed to protect soldiers and civilians during armed conflicts. They consist of four international treaties, the first three of which were signed in 1864, 1906 and 1929 to provide humanitarian aid to the sick and wounded soldiers, as well as to the shipwrecked soldiers and to prisoners of war (POWs). The fourth treaty was added in 1949 in the light of WWII to protect civilian persons as well as health and aid workers during war time.

These Conventions have been acceeded by 194 states and enjoy universal acceptance. Conversely, this universal acceptance has repeatedly been broken by the United States which, in fact, did not ratify the fourth Convention². Although the United States has been a respected leader in developing international laws of war for more than one hundred years and applied the Geneva Conventions in the Korean, Vietnam and the first Gulf Wars, the Bush administration stumbled after the 9/11 attacks and the initial phases of the war in Afghanistan. At that time, the United States and its coalition partners were capturing a large number of suspected al-Qaeda and Taliban fighters at the Guantanamo Bay detention camp with the purpose of interrogating them. This place served as an intelligence mission by which crucial information related to terrorism was gathered from detainee³.

Geographically speaking, the facility was, on the one hand, located in a zone over which the United States government had complete control. On the other hand, the camp was technically situated outside U.S. borders. Consequently, it was legally defined as a zone in which U.S. personnel could resort to detention and interrogation techniques "with few legal and judicial constraints" ⁴ . In conclusion, the Bush administration decided in 2002 that the Conventions would not apply to al- Qaeda nor to the Taliban. In other words, it even refused to adopt the baseline minimum-treatment standards for these individuals (Common Article 3 and Article 75⁵ ), which led to the use of diverse forms of mistreatment - such as waterboarding, a simulation of drowning that generates panic - in order to extract confession material.

In an interview conducted in February 2011, former Algerian Guantanamo prisoner Saber Lahmer reveals his hellish experience which already started from his transit to Cuba on the aeroplane: "[...] we were seated in a very painful, savage way. Our hands and legs were tied very tightly with metal shackles; our eyes were covered with blacked-out goggles; our mouths were sealed with cloth; our ears were covered with large headphones; and, if we moved, even slightly, we'd get punched in the face or body" ⁶. Once arrived at destination, Lahmer was taken to Guantanamo: "Welcome to the American hell" ⁷.

As a result, the entire world bursted out in outrage: U.S. allies, civil society organisations, human rights groups condemned the United States for its inhuman behaviour and urged it to stop using torture at Guantanamo. But the Bush administration's position vis-à-vis the Geneva Conventions remained unchanged. Instead, it seeked to legally justify its detention rules and to engage its allies in dialogue on the subject. According to Noah Feldman, a legal expert, the United States desperately needed allies in its struggle against al-Qaeda. Moreover, "being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power" ⁸, Feldman adds.

The reason for the United States' attitude towards the Geneva Conventions - and this is what the fundamental debate is about - is that they do not provide clear guidelines for the conduct of war with terrorist groups. For example, they do not define what type of criminals terrorists are, that is to say, whether they are to be considered as enemy combatants or as prisoners of war; or which sort of legal process, such as the criminal justice system or the laws of war, and protections terrorists are entitled to. The Bush administration considered that they were at war with al-Qaeda, that terrorists were "unlawful enemy combatants" and that for this reason, "detainees at Guantanamo [...] were essentially unprotected by international prisoner treatment standards" ⁹.

If we take a closer look at the Guantanamo inmates, who are they precisely? At its height, the detention camp held around 780 suspected terrorists, who had been held there since 2002. Today, over 600 have been released¹⁰. The majority of them were arrested in Afghanistan or along the Pakistan-Afghanistan border when the U.S. attempted to close safe havens linked to terrorists who plotted the 9/11 attacks in New York and Washington¹¹. Among them, more than one third are from Yemen, but the facility actually detains prisoners from thirty different countries, "including Algeria, China, Pakistan, Saudi Arabia, Syria, and Canada" ¹². They are accused of charges ranging "from suspected support to Taliban and militant organizations, to serving as a security guard for Osama bin Laden" ¹³. Some of them, i.e. a Palestinian, some Afghans and some Turkistanis have completely lost their minds after having been incarcerated about nine years at Guantanamo. Thereupon, the United States, explains Saber Lahmer, does not want to free them "fearing the response the world will have to their already battered world image" ¹⁴.

According to administration lawyers, terrorists represent a serious security threat that could endanger U.S. personnel and hence hamper evidence gathering¹⁵. This evidence was extremely important and needed to be safeguarded from disclosure during trial¹⁶. Therefore, they required military commissions which were legalised in 2006 when Congress passed the Military Commissions Act despite the Supreme Court's opposition. Meanwhile, this act also authorized "alternative interrogation practices by the Central Intelligence Agency (CIA)" ¹⁷. The military commissions system not only implied the limitation of the detainee's ability to challenge their detention via habeas corpus petitions¹⁸, but also the validation of hearsay evidence, the maintainance of the death penalty as an option and the prohibition of the defendant's attendance at the judicial proceeding, which gave rise to much criticism.

A specific case to be mentioned here is the capture in November 2001 of Salid Ahmed Hamdan - known as the 'Hamdan v. Rumsfeld' case -, Osama bin Laden's bodyguard and personal driver from Yemen. Hamdan was charged in 2004 with conspiracy to commit terrorist attacks, although no link of violation of the laws of war can be demonstrated¹⁹.

[...]

¹ http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp

² The United States has actually signed each of these four international agreements, but a signature does not bind a nation to a treaty unless it has also been ratified by that nation.

³ It was believed that the most important information needed was held by the captured detainees.

⁴ http://www.cfr.org/publication/18001/problems_in_closing_guantanamo_detention_camp.html

⁵ http://shadow.foreignpolicy.com/posts/2010/08/11/obama_bush_and_the_geneva_conventions. These articles apply fundamental guarantees to individuals, including the prohibition of any form of mistreatment whatsoever and the right for detainees to know the reasons for their detention.

⁶ http://www.cageprisoners.com/our-work/interviews/item/1164-exclusive-moazzam-begg-interviews-former- guantanamo-prisonersaber-lahmer-in-paris

⁷ Ibidum.

⁸ http://www.foreignpolicy.com/articles/2010/09/03/how_different_is_obama_from_bush_on_terrorism

⁹ http://www.cfr.org/publication/18001/problems_in_closing_guantanamo_detention_camp.html

¹⁰ http://www.cageprisoners.com/our-work/interviews/item/1164-exclusive-moazzam-begg-interviews-former- guantanamo-prisonersaber-lahmer-in-paris

¹¹ http://www.cfr.org/publication/18525/closing_guantanamo.html

¹² http://www.cfr.org/publication/18525/closing_guantanamo.html

¹³ Ibidum.

¹⁴ http://www.cageprisoners.com/our-work/interviews/item/1164-exclusive-moazzam-begg-interviews-former- guantanamo-prisonersaber-lahmer-in-paris

¹⁵ http://www.cfr.org/publication/11025/judging_guantanamo.html

¹⁶ http://www.cfr.org/publication/20759/obama_straddling_debate_on_prosecuting_911_prisoners.html

¹⁷ http://www.cfr.org/publication/11025/judging_guantanamo.html

¹⁸ Habeas corpus literally means "you have the body" in Latin. In the United States, this is a fundamental right granted to all individuals. It dictates that a prisoner be brought before the court to determine whether the government is allowed to continue detaining them. The captured individual or their representative can petition the court for such a writ. According to Article one of the Constitution, the right of habeas corpus can only be suspended "in cases of rebellion against or invasion of the public safety".

¹⁹ http://www.cfr.org/publication/11025/judging_guantanamo.html