Guantanamo Bay and Human Rights. The Legal Status of Guantanamo Bay Detainees

Essay, 2018

13 Pages, Grade: 78



The Event

Reports of Violations of Human Rights

Domestic Human Rights Laws in Place

International Human Rights and Laws in Place

International Response

U.S Response

Conclusion and Recommendations



This case study will evaluate the alleged human rights violations of the naval base Guantanamo Bay in Cuba. The event will firstly be discussed, followed by an examination of both domestic and international human rights laws in place. The response from the U.S and the international response will be evaluated, focusing on the complications and intricacies of enforcing these laws to the U.S. This case study will evaluate the international development of human rights and why they are in place.

The Event

On September 11th, 2001, the terrorist organisation, Al Qaeda flew two planes into the Twin Towers, killing 3000 Americans. President George W Bush called this a violation of national peace and security and lead the administration to begin ‘the global war on terror’ (Goedde, 2014). Anti- terrorist legislation worldwide was rushed through, including The Terrorism Act 2000 and the Anti-Terrorist Crime and Security Act 2001. Both legislations cause concerns for Human Rights, as the rights of those labelled under this definition seem to be diminished. They allow governments to detain individuals without charge and with no criminal standard of detainment (Webber, 2016). The Bush admin responded rapidly with force, stating all terrorist groups would be destroyed using any means necessary. Firstly, bombing Afghanistan to locate Al Qaeda and the later invading Iraq, suggesting that Iraq were concealing weapons of mass destruction (Goedde, 2014). In November 2001, President Bush issued a military order calling for all non-US nationals suspected of involvement in international terrorism to be captured and held indefinitely without trial (Hancock, 2007). A bounty was offered to the citizens of Afghanistan, the public were paid to provide information as to who was a suspected terrorist, a process known as extraordinary rendition (Lauren, 2013). Under this foreign policy initiative, also referred to as the Bush Doctrine, the US government began capturing suspects from Afghanistan without any evidence or trial and started moving them to a naval detention centre in Cuba, Guantanamo Bay, in defiance of international laws (Geodde, 2014).

Reports of Violations of Human Rights

Guantanamo Bay is believed to have been built in a legal black site, or a legal void, where detainees can neither benefit from the protection guaranteed by American Domestic Laws nor benefit from the protection insured by international laws, however this is not strictly the case (National Society of Human Rights, 2017). Camps Delta, Echo and X-Ray were constructed at Guantanamo Bay, by 2005, America had captured 83,000 suspects, mainly men and male children from Afghanistan, 779 of which were imprisoned and interviewed at Guantanamo Bay (Hancock, 2007). However, it is now known that torture has been used against these detainees, many of the released detainees claim that torture was a regular part of their imprisonment including; beating, whipping, water boarding, sleep deprivation, sexual humiliation and forced exposure to graphic pornography (Hall and Willow, 2012). The camps also employed psychiatrists and psychologists to enhance the mental torture and to extract the detainee’s phobias to be used against them. In 2006 the American Medical Association and the American Psychiatric Association issued statements that restricted the participation of its members during interrogations, claiming that this was unusually cruel and inhumane treatment (Fletcher et al., 2009).Late 2002, Guantanamo requested permission to strengthen interrogation techniques that went well beyond these limits, despite recommendations from the Convention Against Torture (CAT), warning the US not to use these techniques, the secretary of defence Donald Rumsfeld authorised this (Hancock, 2007). The US claims that the detainees of Guantanamo Bay are amongst the most dangerous people in the world, including; bomb makers, terrorist financers, terrorist trainers and recruiters and potential suicide bombers, the US makes further suggestions that these people are ‘locked boxes’ containing information that could save 1000’s of lives, therefore it does not matter how these ‘boxes’ are opened (Alexander and Kraft, 2008).However, after the 2002 interrogation techniques were enhanced, the protocol changed in 2003 and they were enhanced again. With approval gained for 24 further techniques including; manipulation of diet and environment, sleep adjustment and leading detainees to believe that they were being returned home to face torture or death, also known as the false flag (Hancock, 2007).There have been reports of detainees being kept in solitary confinement, in a cell flooded with light for 24 hours a day which resulted in a detainee suffering extreme psychological torture which left him crouched in a corner naked, talking to people who did not exist (Webber,2016).A further report leaked by military staff at Guantanamo Bay revealed that a further camp had been opened in 2006 named Camp VI (Arnold and Quenivent, 2008). This camp contained sealed cells which do not allow natural light or fresh air, a technique named separation, which is permitted, though subject to the special authority under the newest version of the US Army Fields Manual (Arnold and Quenivent, 2008). The detainees, the US claim have no right to legal representation, no claim to prisoner of war status and their right to habeas corpus has been dismissed by the supreme American court due to Guantanamo being outside of sovereign territory (Forsythe et al., 2009). The US deny any use of torture or mistreatment and claim that the detainees are being treat with the ‘humanity that they deserve’ despite there being eye witness reports, leaked reports and statements made by released detainees which all insinuate institutionalised mistreatment (Goedde, 2014). If the U.S were to be found guilty of using these techniques on detainees they could be in violation of 2006 Military Commissions Act, through the use of inhumane treatment. The protection of international law such as those stated in CAT and the Geneva conventions, that detainees are entitled to were described as ‘quaint’ by President Bush and he claims that they do not apply to the Global War on Terror (Lauren, 2013). At present great uncertainty surrounds the legal status of these detainees, very little is known about their identity or the circumstances of their confinement, they have no access to family and very few have access to legal representation. Very few people have been permitted access to the site itself and the few that have were made to sign strict secrecy agreements and were not permitted to speak to detainees, one group of journalists were asked to leave immediately after confirming that they were from the BBC to a detainee (Waxman, 2005).

Domestic Human Rights Laws in Place

The Inter-American human rights system was established with the adoption of the American Declaration of the rights and duties of man in Bogota, Columbia in 1948 at the Ninth International American conference (Crawshaw, 2007). The charter of the Organisation of American States (OAS) was also established at the same conference. The Inter- American Commission and the Inter-American Court have a joint responsibility of interpreting and sanctioning the American Convention of Human Rights (Antkowiak, 2017). The American Convention on human rights was signed in 1969 in Costa Rica by the member states of the OAS and entered into force in 1978 (Crawshaw, 2007). The American Convention on human rights is a catalogue of due process, fair trial and freedom of expression that all member state parties must adhere to. Included in the convention is Article 5, The right to humane treatment, Article 8, The right to a fair trial and Article 25, The right to judicial protection (Antkowiak, 2017). Under the convention any person, group or persons or Non-Government Organisations who are legally recognised in one or more OAS states, may submit petitions to the commission alleging violations of the convention by a state party (Crawshaw, 2007). However, the U.S.A have not ratified the treaty of The American Convention on human rights and do not participate in it. The Inter- American Commission and the Inter- American court of Human Rights serves as a watchdog for the protection and promotion of fundamental rights in America (Herrera, 2015). In response to a petition in 2003, challenging the status of Guantanamo Bay detainees the Inter-American Commission adopted precautionary measures addressed to the U.S, insisting that they take urgent measures to have the detainee’s legal status determined (Greenberg and Dratel, 2005). The status of Guantanamo Bay detainees was further discussed by the Inter-American Commission, who decided that the detainees, although not held within the borders of the U.S nevertheless were under that states ratione loci (courts authority) jurisdiction (Antkowiak, 2017). Ratione loci competence requires that the alleged violation take place within the jurisdiction of the respondent state (Antkowiak, 2017). In international law, this jurisdiction does not merely consider formal territorial boundaries, instead; the question is asked whether that state exercises control and authority over that area (Antkowiak, 2017). With regards to Guantanamo Bay, naval base in Cuba, the U.S hold full authority and exercise full control of the area, therefore the U.S could be held responsible for human rights abuses taking place there (Moeckli et al., 2014). Although no objection to jurisdiction ratione loci has been raised to date before the Inter-American Court and a U.S federal court dismissed the right of habeus corpus filled on behalf of the Guantanamo Bay detainees (Pasqualucci, 1999). Any accusations made towards the U.S could only be raised before the Inter-American Court if the U.S were to accept the courts jurisdiction on an ad hoc basis, however no accusation has been made to date against the U.S (Pasqualucci, 1999).

International Human Rights and Laws in Place

Human Rights campaigners have long understood the need for societies to have not only principles but laws, to critically safeguard the people from government leaders and others who might arbitrarily and abusively use their power (Lauren, 2013). These laws can either be national laws at domestic level or international law at regional or global level (Lauren, 2013). After the atrocities of World War ll, the United Nations charter established a blue print for a new world order, the United Nations (UN), were mandated to promote universal respect for and observance of, human rights and fundamental freedoms for all (Forsythe, 2009). The principle UN treaties for the international protection of human rights consist of the International Covenant of Cultural and Political rights (ICCPR), the adapted International Covenant of Economical Social Cultural Rights (ICESCR), together with the Universal Declaration of Rights (UDHR), create the International bill of rights (Forsythe, 2009).Taking from the four schools of thought the International Bill of Rights is considered from a deliberative school of thought. Deliberative theorists accept that human rights are a given but that they will take time and will come into existence through societal agreement (Dembour, 2010). This school of thought can be evidenced through the adaption of the ICCPR to include economic, social and cultural rights as stated in the ICESCR (Dembour, 2010). The UDHR is considered a milestone document in the history of human rights, and the general assembly claims that this is a common standard of achievement for all member states, which the US helped to draft (Fletcher et al., 2009) . Article 5 of the UDHR (1948) states that ‘no one should be subject to torture, cruel or inhumane or degrading treatment or punishment’. Article 6 of the UDHR (1948) states that ‘everyone has a right to recognition as a person before the law’. Article 9/10 states that ‘nobody should be subject to arbitrary arrest, detention or exile’. At present over 144 states have ratified to the ICCPR and over 141 states are ratified to the ICESCR, meaning that the country has agreed to surrender some of their sovereign power, and have agreed to at least work towards the conditions of the treaties (Forsythe, 2009). All member states pledged themselves to take joint or separate action in cooperation with the organisation for the achievement of its purposes, human rights for all, the US signed some, but not all, the agreements in 1955. Therefore, the treatment and the legal status of Guantanamo Bay detainees by the US puts them in violation of articles 5,6, 9 and 10 of the UDHR. From the UDHR, created in 1948, a set of treaties were included to cover humanitarian law, the Geneva Conventions, however, the Geneva conventions date back to as early as 1864 (Butler, 2007). Due to the vision of Henry Dunant, after the atrocities he witnessed after the battle of Solferino, the Geneva conventions were created to provide written universal laws which would protect victims of armed conflict (Butler, 2007). Henry Dunant also founded the International Committee of the Red Cross (ICRC) in 1863, an international non-government organisation (NGO) which provide mutual aid to areas of conflict and war. The laws stated in the Geneva Conventions apply to all states as some overarching rules of war, including the Martins Clause which was adopted by The Hague Conventions in 1899 (Butler, 2007). The Hague conventions of 1899 and 1907 represent the first significant codification of the laws of was in an international treaty (Schabas, 2010). The US ratified to the conventions in 1955, however, they opted out of the optional protocols l and ll, which provide protection against the death penalty and the treatment of detained combatants, the US signed different parts of the Geneva Conventions up to four times to date (Wilson et al., 1988). Although ratification of the Geneva Conventions does not prevent acts of inhumane treatment anymore than laws prevent crimes, they did create legal obligations (Wilson et al., 1988). To prevent violations by states who have not fully ratified to the Geneva Conventions, the Martins Clause, (common article 62/63/142/158) is utilised in order to emphasise that even without ratification, the state must still act in accordance with humanity (Butler, 2007). The Martins Clause states that civilians remain under the protection and the rule of the principles of the law of nations, named after the Russian diplomat who drafted it (Schabas, 2010). The existence of the Geneva Conventions is a source of moral and ultimately political pressure on a detaining power to accord humane treatment, which includes the right to Habeas Corpus from an independent court and the agreement prohibited any form of inflicting suffering or disgrace or cruel imprisonment (Wilson et al., 1988). The reference to a states authority in Human Rights treaties is not restricted to a state’s national territory (Pasqualucci, 1999). When a state violates a right protected by the treaty elsewhere, in which that state exercises authority, the treaty may be applicable (Pasqualucci, 1999). Therefore, the treatment of Guantanamo Detainees includes violations of the UDHR, the American Constitution, the Geneva Conventions and the CAT agreements. The U.S ratified to the United Nations Conventions Against Torture in 1994 however, the prohibitions against torture and other forms of inhumane treatment are firmly embedded in U.S domestic law (Fletcher et al., 2009). U.S domestic law prohibiting torture and inhumane treatment include the Torture Victims Protection Act 1991, the Torture Convention Implementation Act 1994, the War Crimes Act 1996, the Detainee Treatment Act 2005, the Military Commissions Act 2006, as well as the Fifth, Eighth and Fourteenth Amendments of the U.S Constitution (Fletcher et al., 2009). The prohibition against torture has long been part of customary international law and has risen to the level of jus cogens, meaning that it is now a higher law and cannot be violated by any state (Fletcher et al., 2009). If all domestic courts have been exhausted, war crimes can be heard at the Rome statute of the International Criminal Court (ICC), created in 1998 and enforced in 2002 (Schabas, 2010). The ICC is a court that is used as an absolute last resort and is concerned, essentially, with matters that might be generally described as serious human rights violations. States, Non-Government Organisations, and individuals could bring charges against the U.S for violations of Human Rights concerning the detainees of Guantanamo Bay at the ICC, however only if the U.S agreed to a trial (Lauren,2013). IN 2002 President Bush took the unprecedented step of un-signing the treaty that bound the U.S to the ICC, announcing that the U.S do not intend to ratify it; therefore, they are no longer bound to its purpose or objective (Lauren, 2013). The U.S started an aggressive campaign to encourage other states into rejecting the court, but 120 state parties signed the treaty and the lack of universal jurisdiction has proven to be no obstacle to the operation of the institution (Schabas, 2010). The U.S.A today remains one of the few democratic governments in the world that refuses to participate in the International Criminal Court (Lauren, 2013).


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Guantanamo Bay and Human Rights. The Legal Status of Guantanamo Bay Detainees
University of Hull  (University Cente Grimsby)
Criminological studies with social sciences
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ISBN (eBook)
ISBN (Book)
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539 KB
terrorism, Guantanamo Bay, Human rights law
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Susan Bailey (Author), 2018, Guantanamo Bay and Human Rights. The Legal Status of Guantanamo Bay Detainees, Munich, GRIN Verlag,


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