The Detention Facilities at Guantanamo Bay Do Conform with International Law
The media is filled with unconfirmed reports and speculation that mass torture has been used on Iraqi and Al-Queda prisoners. According to a Newsday magazine report published on June 20, 2005, the treatment of prisoners at Guantanamo Bay really is not as bad as we were led to believe. Most of the inmates listen to the orders of the prison guards and are given three meals a day which comply with Muslim dietary specifications. The food includes such items as chicken, fish and beef and the meals actually cost more than what the U.S. army spends to feed its own soldiers. Our military personnel endure inhumane treatment by the prisoners such as having feces and urine thrown at them from the jail cells.1 The Third and Fourth Geneva Conventions also state that religious tolerance and freedom must be allowed for all prisoners.2 The U.S. does in fact comply with this law as Muslim men are allowed to pray during the day and have a directional arrow placed in their cell that points to the holy land of Mecca. Prisoners are provided with basic toiletries and are given a copy of the Quran to read.1
While treatment of prisoners by U.S. military was not pleasant nor should it be, there were conflicting reports about the treatment prisoners did receive. In fact, one account from a fifteen year old boy named Mohammed Ismail Agha stated that “they gave me a good time in Cuba. They were very nice to me, giving me English lessons. For two or three days I was confused, but later the Americans were so nice with me, they were giving me good food with fruit and water for ablutions before prayer.” He also went on to say that the military provided books in his native Pashto language and sacred Quran.3 While not every narrative account was like this young boy’s story, the treatment of prisoners is not as bad as the media or the United Nations has made it out to be.
The soldiers at Guantanamo Bay truly believe that they are making their country safer by holding terrorists there. Since information came out of possible torture taking place, the Pentagon and our military leaders have made a conscientious decision to make sure that international law is being followed. Defense official Esteban Rodriguez claims that the only torture that occurred was when officers were trying to extract information out of a man believed to be the 20th September 11 hijacker. Even still, the official claims that Secretary of State Donald Rumsfeld retracted the order in 2003.3 Just imagine that a terrorist was held in captivity and knew the location of a nuclear bomb in New York City. Who would argue against the use of torture to extract information that could save hundreds of thousands of lives?
Getting back to the point on international law, the United States has done nothing wrong and has not violated these laws. International law and the U.S. Constitution allows the American government to detain Al-Queda members, Taliban, and other terrorists and send them to Guantanamo Bay. The debate then turns to the legality of holding prisoners there instead of extraditing them back to their home countries and whether or not torture can be used.3 According to Professor Paul Rosenzweig from Mason University, since terrorists are not lawful combatants, they are not protected by the Geneva Convention and international law. He states, “Because they’re not lawful combatants, they’re not entitled to the protection of international treaties. And since they’re not US citizens and weren’t detained in the United States, they’re not entitled to the protections offered by the US Constitution.” According to the Geneva Convention and international law, a “lawful combatant” is defined as a person who carries a weapon for all to see, wears a uniform, has a military infrastructure, or follows the rules of war. Terrorists do not meet any of these criteria because they are not part of a government and they use terror as their tactics instead of conventional warfare.4
The Bush Administration has refused to give prisoners the label of a Prisoner of War and instead the military calls their prisoners “enemy combatants.” The United States does make the term “enemy combatant” a little unclear which can cause confusion. However, the United State government is correct in taking the position that U.S. prisoners from Iraq, Afghanistan, Al-Queda, and other terrorists around the world are not Prisoners Of War. According to the Geneva Convention Article 4, Prisoners of War are, “members of the opposing country’s armed forces.” 3 Al-Queda members and other terrorists are not members of any country’s army and are not supported by any particular government. Therefore, they are not Prisoners of War and are not protected by the same rights as Prisoners Of War. In addition, there have also been claims from the global community and global organizations such as the United Nations that these terrorists have a right to counsel and a fair trial. However Political Scientist Jason Erickson makes the comparison to World War Two when German soldiers, captured in battle were held in prison. They were not charged with crimes because they were soldiers during wartime and they did not need to be charged. Erickson goes on further to say, “Since they need not be charged with a crime, there is no need for a lawyer. They are only accused of fighting on the other side of the war, not a crime in and of itself.”3
In the 1970s the international community tried to include the term “freedom fighter” in an international treaty in regard to prisoners of war but the United States did not sign it and the treaty was never made official. This means that the U.S. has not violated international law since a terrorist, sometimes referred to as a “freedom fighter,” is not protected by international law and therefore has no rights.3
Some people are making the argument that because the United Nations opposes the Guantanamo Bay military base, U.S. actions violate international law. However, U.N. investigators have not even been inside Guantanamo Bay. White House spokesman Scott McCellan stated that “the five investigators never actually visited Guantanamo Bay.” Furthermore he added that, “detainees are treated as humanely as possible.”5 Another interesting point is that human rights activists and prisoners are claiming that they are being tortured during their hunger strikes. If a prisoner goes on a hunger strike and nears the point of death, the U.S. military force feeds the prisoner to stay alive. In one such incident a prisoner went on a hunger strike and his weight dropped down to ninety-seven pounds with his face looking pale and death approaching. Using tubes to force feed him, they brought his weight back up to one hundred thirty-seven pounds. One can look at this set of circumstances as the state keeping someone alive against their own wishes to commit suicide. The state does not condone suicide or assisted suicide and by that same logic they cannot stand by and watch someone attempt it. Therefore, how can this be considered torture?6 In fact, the United Nations report on Guantanamo actually contradicts itself when it states in Article 73, “The United Nations Principles of Medical Ethics apply to all health professionals. It is a contravention of medical ethics for health personnel (a) to be in any relationship with detainees ‘the purpose of which is not solely to evaluate, protect or improve their physical and mental health.'” This means that a doctor can only assist a detainee for the purpose of benefiting his or her physical or mental health. By force feeding detainees on hunger strikes and preventing them from dying, they are abiding by world medical ethics as stated by the United Nations. They are improving a detainees’ physical health by increasing their weight to a less dangerous and more normal level.
The United States has maintained the position that the rules of warfare allow the United States to hold an enemy combatant in captivity for the duration of a war or conflict. According to the United Nations Commission on Human Rights Report regarding Guantanamo Bay, “Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States.” Furthermore, the Chairperson on the Commission for Human Rights and a chairman on the Committee Against Torture both agreed in their report with the United States stating, “they share the understanding that any person having committed a belligerent act in the context of international armed conflict and having fallen into the hands of one party to the conflict (in this case the U.S.) can be held for the duration of hostilities, as long as the detention serves the purpose of preventing combatants from continuing to take up arms against the United States.”2 This law of war as the United Nations report states, “constitutes the lex specialis justifying deprivation of liberty.” This shows that the U.S. can hold terrorists in captivity and deny them the right to a trial and that the U.S. does have to release prisoners until the war or conflict is over. A sensible point is made by Political Scientist Jason Erickson who states that “it would be foolish in the extreme to return captured enemies to the front of the battle.”3
The United States has not violated international laws on torture either. In fact a U.S. Defense Department memorandum dated April 16, 2003 states, “U.S. Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Convention.”2 This makes the point that the U.S. has no intention of violating international law and will fully comply with the laws and statutes of the Geneva Conventions. Even in the United Nations report on Guantanamo Bay, the report concluded that while they suspect that the United States does use torture on its prisoners with the intention of gathering information, its findings were inconclusive if the United States violated the fifth provision of the definition of torture which states, “severe pain or suffering, physical or mental, must be inflicted.”2 If this fifth provision is not violated, then by definition of the word “torture” as defined by the international law and treaties by the United Nations, has not occurred and thus the United States has not violated any international laws.
The claims at Guantanamo Bay to some extent have been exaggerated as the U.S. has cleaned up its act and the practices currently going on today do in fact conform with international human rights law. The U.S. detention and interrogation facility abides by international law and is a successful device for gathering information, storing prisoners and protecting the United States of America.
