Guantanamo Bay: The Interrogation Practices and Facilities Violate International Law
The Guantanamo Bay military base contains battleships, cruisers, helicopter carriers, submarines and Coast Guard vessels that patrol the waters. Standing in between the American base and Cuban territory is a giant strip of land mines (around seventy-thousand to be exact) which prevent America’s enemies from attacking the base. The U.S. also has several observation posts which guard the land from trespassers. 1 The Guantanamo Base was given to the U.S. in the Platt Amendment which Cuba signed in 1903. In Article VII of the Platt Amendment it states, “To protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States land necessary for coaling or naval stations at certified points, to be agreed upon with the President of the United States.
The U.S. government has decided to bend international law to favor their positions. President Bush has made it well known that national security is more important than international law and the United States’ security is his top priority. According to international law and the Third Geneva Convention which was signed in 1925 and modified in 1949, a dispute about the status of a prisoner is supposed to be decided by a competent military tribunal. 2 There are clear laws for treating Prisoners of War (POWs) but international law has fewer jurisdictions over those who are categorized as “unlawful combatants” such as spies or terrorists. The Geneva Convention protects POWs but since the Bush administration has classified all the prisoners at Guantanamo Bay as unlawful combatants, they have taken the position that international military law does not apply here. 2
The Guantanamo Bay detention center is unique in that it is located in Cuba where the U.S. constitution does not apply and the court systems cannot deal with any problems that arise. Thus, it has become a law-free zone where the U.S. military has repeatedly abused its prisoners, most of whom claim their innocence, stripped them of their human rights and dignity and have violated countless international laws. The prisoners in the detention center are treated inhumanely. The men are being constantly interrogated, being deprived of sleep, and physically abused. The These prisoners have been rounded up by American intelligence agencies such as CIA, FBI, NSA, or other security agencies. Guantanamo Bay represents a blatant violation of international law. It is a place where prisoners do not know how long they will be held there, what will happen to them, or if they will ever see their homes and family again. The prisoners are denied the right to counsel and are not allowed to tell anyone where they are. Family members of these prisoners often think that their loved ones are dead because they seem to suddenly disappear and are not heard from again. 3
The lower federal courts have already determined that the government has the right to withhold a fair trial and legal counsel for these prisoners. The camps are also off limits to Red Cross officials and the media which prevents the public from really seeing what goes on behind closed doors. According to some FBI and police reports, up to three-thousand people have been detained and brought to the detention camp in Cuba for simply violating minor immigration procedures. Most of these people were of Muslim or Arab decent.2 The excuse the U.S. government gives for denying legal rights to the detainees is that the people being held are illegal aliens, not citizens of the United States, and are being held outside the U.S. borders. Therefore they have no legal rights. Many of the prisoners were men from Pakistan or Afghanistan who was captured by the American funded Northern Alliance and shipped in giant commercial containers in which they had no air to breathe and many died on the way to the United States. According to international law of the Geneva Conventions, the U.S. does have the right to detain people they see as their enemy. However, they must be treated as POWs and their legal rights preserved. The Bush Administration has maintained the position that none of these detainees are POWs and are not protected under the Geneva Convention. This argument is erroneous because the Geneva Convention states that anyone captured in war is a POW which includes the war on terror. In a situation where there is uncertainty, a military tribunal is to be set up. Even under these circumstances, the Convention has special rules protecting them and giving them legal rights. Every person detained is protected by the Convention, even if they are not a POW.2 Furthermore, the Geneva Convention specifically outlaws the use of
torture, cruel and inhumane abuse, and degrading treatment.
The definition for international law which President Bush has used was written out by Attorney General Alberto Gonzalez and the definition directly violates international law. In Alberto Gonzalez’s memorandum dated August 1, 2002, the definition of torture during prisoner interrogations must be through physical injury resulting in “death, organ failure, or serious impairment of body functions.” This definition alone violates the War Crimes Act. Section 18 of the War Crimes Act states that any crime during wartime “shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”9
President Bush has even contradicted his own statements in his violation of international laws. In February 2002, Bush said that all Taliban prisoners would be treated in accordance with the Geneva Convention but excluded Al-Qaeda members and the Taliban. The Geneva Convention was meant to protect every type of military captive, not just POWs. The convention specifically states that first a military tribunal must be set up to determine if the person captured is considered a POW. If the tribunal does in fact determine that he is not and he is instead outside the protection of POW status, then he must be brought before a court and tried as a criminal where he is given legal counsel and is allowed contact with the outside world. The U.S. military has blatantly denied this procedure. Instead of POWs, the military calls them “unlawful combatant” which under the Convention rules still means that they should be tried as criminals. Whether or not these detainees are terrorists, the U.S. holds them in the detention camps for up to two and a half years before they are released or tried in court. The Bush Administration has insisted that the laws of war and the Conventions do not apply to terrorists. However, they are still violating international law because there are human rights laws set up which contain a section on criminal law. This section would apply to terrorists and would give them the right to an immediate trial in a court of law, the right to an attorney, and the right to be charged with a crime. The Bush Administration has done neither of these.4 In addition, the U.S. government is picking and choosing which prisoners receive a trial and which stay locked up in Guantanamo Bay for long periods of time.
According to the United Nations Report on Human Rights, prisoners can be held for the purposes of preventing an enemy combatant from taking up arms against another county . However, they must then be tried in a court of law. The UN Report states that, “the objective of the ongoing detention is not primarily to prevent enemy combatants from taking up arms against the United States again, but to obtain information and gather intelligence on the Al- Queda network.”4 This means that prisoners are being held in Guantanamo Bay to be interrogated without lawyers or a trial for an indefinite amount of period and that goes directly against international laws. The Geneva Convention specifically states that once an armed conflict is over, prisoners of war and internees must be released or charged with a crime. The U.S. government at Guantanamo Bay has done neither.4
In Guantanamo Bay the prisoners are constantly interrogated by military officers to force them to give up information about terrorism and Al-Qaeda. A large majority of those in the camps have nothing to do with terrorist activity and have no personal knowledge of it but are still viciously interrogated, beaten and tortured to the point where they will say practically anything to make the torture stop, even if it means making false confessions. In the interrogation camps, each prisoner has been questioned at least two hundred times. False confessions have arisen because by confessing to get the military people to hear what they want, the prisoners get small rewards like food to eat, or ability to sleep, brush their teeth or take a shower.6
In December 2002, two prisoners were reported to have been beaten to death during interrogations. The use of torture has gotten so bad that when the media found out about it, a dozen soldiers were relieved of duty. U.S. officials also released a statement in which they announced they would investigate the deaths of thirty-seven people in the detention centers.6 The Geneva Convention of 1949 specifically prohibits the use of interrogation camps, something that the Nazis set up in WW2. In 2002, the Inter- American Commission on Human Rights of the Organization of American States told the U.S. government that every prisoner at Guantanamo Bay had to be tried in court immediately to determine their status. This too, the U.S. government ignored.6
Just about the only time that prisoners receive a trial is when the story of a prisoner goes public or the case reaches the Supreme Court. In the situation of two British men who were captured by U.S. intelligence, the men Shafiq Rasul and Asif Iqbal were picked up in Pakistan, and then transferred to Egypt and finally Guantanamo Bay. Somehow these two men were able to let people know that they were being held by the U.S. and were able to retained legal counsel. The Kuwaiti Government has also hired a private law firm to represent twelve Kuwaiti men held in the U.S. and are being held in Guantanamo Bay.2
The aspect of torture has been something that the Bush Administration claims it can use in times of war to deal with suspected terrorist to gain information about national security. However, the United Nations Convention Against Torture which was signed by almost every world nation including the U.S. expressly prohibits the use of torture. The document states in Part I that under no circumstances may torture be used. Article Two of the convention in Part I states, “No exceptional circumstances whatsoever, whether a state of war or a threat, internal political instability or any other public emergency, may be invoked as a justification of torture.” The use of torture is treated as an international crime.7 An even further hypocritical use of torture has been the actions of the U.S. which make torture a crime if it occurs abroad. The Convention also prohibits cruel, inhumane and degrading treatment.8 U.S. Federal law also makes it a crime to breach the Geneva Convention which includes the use of torture.
Another aspect that goes against international law is the capturing and interrogation of children. In 2004, the U.S. military released three young children who were thirteen to fifteen years of age when released and between the ages of eleven to thirteen when captured. Keeping children in interrogation camps is illegal under international law according to the United Nations Convention on the Rights of Children. This document states that if any child is taken by a country, he must begin rehabilitation and be sent home immediately. If they are suspected as criminals or terrorists, they are still sent to a juvenile justice system, not a prison camp which the U.S. has done. In one particular case a child named Mohammed Ismail Agha, was arrested in 2002 in Afghanistan looking for a job and was completely innocent. He was held two months in Afghanistan and then in Guantanamo Bay for a year. He couldn’t send a letter to his father telling him where he was until after ten months of his disappearance.7
In November of 2001, President Bush set up military commissions by issuing an executive order. The order set up a justice system for dealing with detained citizens which was different from past methods of dealing with detainees. Normally, suspected terrorists would be tried for committing acts of murder, not violating military laws or the laws of warfare. The executive order set up military commissions and special courts instead of impartial tribunals. This goes against the Geneva Convention of 1949 and the International Covenant on Civil and Political Rights. Both of these documents state that, “People can only be tried by regularly constituted tribunals that give full and fair hearings and that are impartial.” This means that the commissions must have already been set up before the war in Afghanistan occurred.
The Guantanamo Bay detention facility does not conform with the standards of international law. It violates numerous laws including several Geneva Conventions and United Nation’s conventions as well as a multitude of other documents and treaties. International Human Rights Law is clearly being violated and it is time that the United States put an end to such a torturous and illegal place.
