Human Rights Issues in Guantanamo Bay
| Date | 01 October 2004 |
| Published date | 01 October 2004 |
| DOI | 10.1350/jcla.68.5.423.43228 |
| Author | Daniella Schneider |
| Subject Matter | Article |
Human Rights Issues in
Guantanamo Bay
Daniella Schneider*
Abstract
This article addresses the developments surrounding the con-
tinued detention and treatment of the detainees at Guantanamo Bay,
Cuba, and examines the legal issues arising from them. The present
political environment has left deep scars in international and human
rights law. The detention of some 660 individuals in Guantanamo Bay has
caused academic and diplomatic disputes. There is a serious legal 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.
According to the US authorities, Taleban fighters and Al-Qaeda do not fall
within the Geneva Conventions. No attempts have been made on behalf
of the US to verify the detainees’ legal status by way of a tribunal. This
article examines the possibility of alternative legal recourses, such as the
application of the Fourth Geneva Convention which protects civilians
who fall in the hands of the enemy, the application of the International
Covenant on Civil and Political Rights, which the USA has ratified, and
finally the existence of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, adopted by the
United Nations General Assembly. Each of these instruments, despite the
complexity of their provisions, ensures a minimum standard of treatment
of the detainees. The detainees’ legal status, however, remains unclear;
accordingly they are trapped in a legal black hole. Numerous attempts
have been made to solve this international embarrassment. The USA
opted for trial by military commission, to which the international commu-
nity was strongly opposed. The measures carried out by the US authorities
and by the British government in relation to the detention of suspected
international terrorists are critically scrutinised in this article. Some de-
tainees have been freed, which raises questions of possible compensation.
Consideration is also given as to whether the legal measures taken until
now are sufficient for the protection of their human rights. What is certain
is that the treatment of possible terrorists has drastically changed, under-
mining human rights and civil liberties.
Human rights values have drastically changed as a result of the attacks
on the USA in September 2001 where more than 3,000 people lost their
lives. Following these horrific events, numerous pieces of legislation
were enacted and brought into force both in the US and in the UK. These
seem to disregard some basic human rights which are enshrined in
domestic laws and international agreements. An example of a possible
abuse of international human rights law is the detention of people in US
custody in Guantanamo Bay.
* Graduate in Law from Kingston University, London. Currently studying for a
Masters in European Studies at the Centre for European Integration Studies at the
Rheinische Friedrich-Wilhelms-Universität, Bonn, Germany.
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The Journal of Criminal Law
Guantanamo Bay is a US Navy base in south-eastern Cuba; it has
been leased by Washington since 1903.1 A Military Order on the Deten-
tion, Treatment and Trial of Certain Non-citizens in the War against
Terrorism was issued by President Bush to create a new system to deal
with terrorists. The first prison camp in Guantanamo Bay was estab-
lished in January 2002. Some 660 prisoners (among them children, as
young as 13) from 42 countries are being held in the camp; some have
been there for nearly two years.2 The detainees are suspected Al-Qaeda
and Taleban fighters, who were taken into US custody in Afghanistan
and elsewhere outside the USA and later transferred to Guantanamo.
They are held on the basis that they are ‘enemy’ or ‘unlawful’ combat-
ants. Their detention has become subject of international controversy.
Amnesty International, for instance, has raised its concern that inter-
national law and standards have been violated or are under threat of
violation.3
This article discusses the law surrounding the detainees in Guanta-
namo Bay. First, it will determine their legal status: are they prisoners of
war or simple detainees? Depending on their legal status different rules
will apply to them—some of these rules will grant extensive human
rights protection others have limited protection. The question of
whether terrorists have any human rights will be highlighted.
Secondly, consideration will be given as to whether trial by military
commission is lawful.
Lastly, the actions taken by the US government will be compared with
those taken in the UK.
What is the legal status of the detainees?
Can the detainees be considered as prisoners of war?
The Geneva Conventions of 1949 were adopted after the Second World
War, when it became apparent that combatants had been tortured,
dehumanised and executed. The third Geneva Convention creates a
comprehensive legal regime for the treatment of detainees in armed
conflict. The USA and Afghanistan are parties to the Convention. Pris-
oners of war are combatants in an international armed conflict who
have fallen into the hands of the enemy. They are neither criminals nor
hostages, but individuals who have been detained after capture solely
for the purpose of preventing them from rejoining the enemy’s armed
forces.4 They may be interned under humane treatment as provided by
the Convention, but they may not be punished unless convicted of a
crime. If a POW is to be punished for a crime, he must first be convicted
and sentenced by a court ‘according to the same procedure as in the case
1 ‘Guantanamo Detentions Blasted’, BBC News, 10 October 2003, http:/
/news.bbc.co.uk/go/pr/fr/-/1/hi/world/americas/3179858.stm, retrieved 7 July
2004.
2 H. H. Koh, ‘Rights to Remember’ The Economist, 1–7 November 2003, 25.
3 ‘United States of America, Memorandum to the US Government on the Rights of
People in US Custody in Afghanistan and Guantanamo Bay’, 12 October 2003,
http://web.amnesty.org/library/print/ENGAMR510532002, retrieved 7 July 2004.
4 M. D. Evans, International Law (Oxford University Press: Oxford, 2002) 809.
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Human Rights Issues in Guantanamo Bay
of members of the armed forces of the detaining Power’. A POW may be
confined awaiting trial for no longer than three months and no trial can
begin until three weeks after the detaining power has notified the
prisoner’s representative and the protecting power of the charges on
which the prisoner is to be tried, where the prisoner is held, and where
the trial will take place.5
Article 4 of the Convention sets out who is entitled to the prisoner of
war status; it can either be a member of an armed force, who is a party
in the conflict or a member of militia forces forming part of those armed
forces, and inhabitants who take up arms openly to resist the invading
forces; for the latter certain conditions have to be met.6
Taleban
Taleban soldiers should qualify as POWs as they were the de facto
government of Afghanistan during the US military intervention. Presi-
dent Bush determined that the Taleban are covered by the Convention,
although only three states ever recognised the Taleban as the legitimate
government of Afghanistan.7 However, the Taleban detainees do not
qualify as POWs on the grounds that ‘the Taliban did not wear distinct
signs, insignias, symbols or uniforms’ according to US Secretary of
Defence, Donald Rumsfeld.8 This is a poor excuse as neither the Taleban
nor the Northern Alliance have ever worn uniforms or any distinct sign.
The failure to wear what Western commanders might regard as proper
military dress may be more a matter of custom than perfidy. Fur-
thermore, it was argued by the US government that the Taleban are not
under a responsible command and it does not conduct its operations in
accordance with the laws and customs of war, therefore it does not meet
the legal criteria under Article 4 of the Convention.
Al-Qaeda
It seems that Al-Qaeda fighters do not fall within the definition of POWs.
A White House statement asserted that Al-Qaeda is not a state party to
the Geneva Convention; it is a foreign terrorist group, therefore its
members are not entitled to POW status.9 If this finding is accepted, it
would have to be assumed that all resistance movements of the Second
World War would all be branded as illegal. There is sufficient evidence to
5 J. Elsea, ‘Terrorism and the Law of War: Trying Terrorists as Law Criminals before
Military Commissions’, Congressional Research Service: Report for Congress, 11
December 2003, www.fpc.state.gov/documents/organization/7951.pdf, retrieved 9
July 2004.
6 A. Roberts and R. Guelff (eds), Documents of the Law of War, 3rd edn (Oxford
University Press: Oxford, 2000); see ‘1949 Geneva Convention III Relative to the
Treatment of Prisoners of War’, ibid. at 246.
7 An earlier example of controversy on this basis was during the Korean War, where
neither the USA nor the United Nations recognised the Communist government of
China, but US forces treated Chinese prisoners as POWs. See T. Malinowski, ‘What
to Do with Our ‘Detainees’?’, www.hrw.org (search for ‘Background paper on
Geneva Conventions and persons held by UN forces’), retrieved 9 July 2004.
8 Z. Douglas, ‘Do Terrorists Have Human Rights’ (2002) 152 NLJ 1621 at 1625.
9 S. D. Murphy, ‘Contemporary Practice of the United States relating to International
Law’, ‘International Criminal Law’, 96(2) American Journal of International Law 474
at 478 (April 2002).
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