This article addresses the developments surrounding the continued detention and treatment of detainees by the U.S.A. at Guantanamo Naval Base which has been under constant scrutiny for violating several International conventions and human rights standards including those established by the Nuremberg trials and the spirit of the Geneva Conventions. There is a serious debate as to the legality of the detention. The USA has classified these men as ‘unlawful combatants’, who are not subject to the Geneva Convention of 1949, which regulates the treatment of detainees in an armed conflict. The article also reviews the legal issues concerning the Gitmo detainees which are mostly related to the petitions of habeas corpus. Numerous cases have been decided in favour of the detainees , giving them the right to challenge their detention a court. Consideration is given as to whether the measures taken until now are sufficient for the protection of their human rights. The article further considers the challenges facing the closing of the facility since the executive order for the same was passed in 2009.
Reports on the state of individuals at the camp indicate that the detainees were subjected to torture, both as defined by the UN convention of torture[v] and by the definitions that have been operational in the US at any point of time since the detention center’s inception. The involvement of health professionals in the interrogation procedures of the inmates to provide information as to how to be most effective at retrieving information from the suspects is in clear violation of the Nuremberg Code which lays down protocols on human experimentation.[vi]
The legal issues concerning the Gitmo detainees are related to the petitions of habeas corpus, first brought forth in Hamdiv.Rumsfield, [vii] which recognized the power of the government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial authority. In the first Guantanamo habeas petition, Rasulv. Bush[viii]the Supreme Court held that all detainees imprisoned at Guantanamo Bay have a statutory right to challenge their detention.Following the Hamdi and Rasul decisions, the Bush administration conducted Combatant Status Review Tribunals (CSRTs) at Guantanamo to determine whether each Guantanamo detainee was properly classified as an “enemy combatant.” Yet as established in the Rumsfield case,[ix] the Combatant Status Review Tribunal was not deemed to be of competent authority.Although the Court struck down the military commissions as created by the Executive Branch, they did not provide the detainees with direct access to the federal courts. Instead, detainees were granted access to a fair and impartial hearing before a tribunal constitutionally authorized by Congress with the due process guarantees. In Boumedienev. Bush,[x] the Court ruled that detainees, and other foreign nationals, do have the right to direct access to federal courts to challenge their detentions.
The detentions without trial before competent tribunals were not valid in international law firstly due to the inability to determine any of the inmates as PoWs and secondly due to the system violating the principles established by the Nuremberg trials[xi] and the spirit of the Geneva convention.[xii]
The executive order to shut the detainment camp, which arrived as late as 2009, was impeded by the Supplemental Appropriations Act of 2009[xiii] (H.R. 2346) which blocked resources to transfer or release prisoners, effectively negating the attempt to close the detention center.[xiv]
The US would continue to emerge with face value closures of the center over the next half a decade, which in effect did not change the issue of the state or rights of the inmates. In 2009, the suggested solution was to transport detainees to the Thompson correctional center, a move which was opposed by legal representatives of the inmates on grounds of legality of such transfer(Such as Marc Falkoff, representative of a group of Yemeni detainees).[xv]
In 2011 Obama signed the Defense Authorization Bill which prevented any allocation of funds towards construction/ modification of any alternate facilities to house Guantanamo detainees.[xvi]$40 million expenditure on building communication systems at the detention center in 2012 were followed by declaration of a list of 86 inmates set to be extradited back to their home countries, yet no word has been released since by the government pertaining to this extradition process, nor has there been any further word on whether the rest of the inmates have been afforded trials or adequately established as terrorist threats or not.[xvii]
The key advancement was in November 2012, when the Senate voted to bar further entry of detainees being transferred to the US and as a result to Guantanamo. Yet there hasnever been any effective action taken to close the detention center, effectively enabling the military trials there to be drawn out as long as possible, with the arbitrary assertion that all prisoners held there can be deemed prisoners of war. [xviii]
The inmates have taken drastic measures to protest against the inhumane treatment meted out to them, hoping to be given the right to a free trial to no avail.For example Tariq Ba Odah, arrested in Pakistan, is a man who, as yet, has not been charged with any crime and has been on a hunger strike since 2007 and continues to be force-fed to maintain his health. [xix]
Guantanamo Bay Detention Centre has been a symbol of the war on terror championed by the United States of America as a method to combat terrorism, yet by employing measures which fly in the face of international law,principally guaranteed human rights, as well as treatises and protocols on torture and methods of interrogation.
The process of closure of the centre which the Obamaregime had initiated has been subjected to a host of bureaucratic hurdles and impasses in procedure which have hampered any efforts of human rights activists and protestors to close the Detention Centre.Since the Congress bipartisan opposition has meant the transfer of prisoners to the US has been blocked, it remains to be seen how Obama will fulfill his promise of closing the Naval Base before his tenure ends this year.
[iii]SEC. 2. Authorization For Use Of United States Armed Forces.
[vii]542 U.S. 507 (2004)
[viii] 542 U.S. 466 (2004)
[ix] 548 U.S. 557 (2006)
[x] 553 U.S. 723 (2008)