Category: The Law

Eylul Mitchell

Over 20 years on, the failure of the US Government to close Guantanamo Bay despite decades of international efforts provides a striking example of a western country undermining the rule of law. Since its creation following the horrific attacks of 9’11 in 2001, 779 men and children have been detained in the US Naval base in Guantanamo, all of which are foreign Muslim men. This has led to many referring to it as a discriminatory regime. The unjust treatment of the detainees in Guantanamo has long been known yet the prisons’ continued existence remains a pressing symbol of the abuse of power. With over half of the detainees being cleared for release with no release date set, it is clear international policy continues to fail these men.

What are the conditions? Indefinite detentions, enhanced interrogation techniques and detainees being prevented access to an adequate legal defense are just some of the violations committed via the US Government. Some of the rights not being afforded to the detainees are as follows: – The right to personal liberty and to be free from arbitrary arrest – The right to personal integrity – The right to the prohibition of torture Among more. At the date of this being written, the prison still contains 30 men. The failure of five US administrations to close Guantanamo despite these facts has brought into question the status of the United States as an advocate for Human Rights. This has opened the doors for criticisms from the global community for the US’s violations of and lack of compliance with longstanding international criminal justice systems. Holding the US accountable for its illegal actions is integral in upholding the influence and stature of international policy.

An important step in the right direction: For the first time since its creation in 2002, from February 6 th 2023 to March 6 th 2023, the United States Government allowed United Nations Special Rapporteur on Human Rights and Counter-Terrorism Fionnuala Ní Aoláin access to Guantanamo Bay on a technical visit. Her June 2023 published report following this visit notes not only violations of international law but a duty of the US Government to make reparations to past and present detainees. A significant quote from the report states the following: “The totality of these practices and omissions have cumulative, compounding effects on detainees’ dignity and fundamental rights, and amounts to ongoing cruel, inhuman, and degrading treatment.” She later goes on to conclude that closure of the facility remains top priority.

22 years on, with years of legal efforts, multiple administrations and empty promises, how is this still happening?

The US Military has admitted to the use of interrogation techniques that constitute torture or cruel and degrading treatment under Article 3 of the European Convention of Human Rights. Similar techniques were present in the case of Selmouni v France [2000], in which the courts unanimously decided the conditions suffered by Mr Selmouni at the hands of the French government violate Article 3. This case is significant in reaffirming the court’s opinion that Article 3 represents ‘one of the fundamental values in a democratic society’. Considering this outcome, the very existence of Guantanamo should be seen as fundamentally undemocratic. Alongside its history of abuse towards the detainees, the longevity of Guantanamo Bay brings into question a lack of enforcement measures when it comes to protecting fundamental human rights. The creation and retention of Guantanamo Bay and the conditions it perpetuates violate customary international law, the international covenant on civil and political rights, and the Geneva convention.

It’s important to consider the wider picture when discussing why this occurs. The structure of many international legal systems relies on the voluntary agreement of states to comply. It is difficult for any substantive enforcement measures to occur when the basis of compliance relies on states having the choice to sign on and facing no effective punishments for not adhering. Additionally, despite strong recommendations of closure by many international bodies, the structure of the UN and the US’s position on the security council have allowed any enforcement efforts to be stunted with no consequences afforded to the United States. This uncertainty and lack of efficient enforcement measures have a direct impact on the detainees, leaving them vulnerable and in a place of limbo.

So what can we do?

Fionnuala Ní Aoláin’s visit is a step in the right direction as it has placed the US administration under a higher level of scrutiny on the international stage. Continuing to question unlawful state actions, protesting and pressuring states to take accountability for their injustices should be continued going forward. The Unites States has huge global influence. Ensuring that they cannot get away with the extreme suffering they have caused due to Guantanamo could be significant in furthering future state’s compliance with international law. Moreover, it is extremely important for the development of international legal systems to ensure they are enforceable and that consequences aren’t only afforded to states through reputational damage. In future, Guantanamo Bay should be looked at as a pressing example of the serious consequences of states’ failures to comply with international law and not as a precedent. With the combination of it being an election year and the current climate surrounding human rights violations, it is more important than ever for President Biden to close Guantanamo Bay and pay reparations to the 779 men who have suffered inside its walls and further upon release.

Eylul Mitchell is an LLB Law Student at University of Brighton

Sources:

[1]S. Pearlman, Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms. (2015).
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2279&context= sulr (accessed March 23, 2024).

[2]M. Sassoli, The Status of Persons Held in Guantánamo under International Humanitarian Law, SYMPOSIUM ON THE GUANTÁNAMO ENTANGLEMENT. (2004). https://www.ibanet.org/Guant%C3%A1namo-Bay-an-International- Humanitarian-and-Criminal-Law-Perspective#:~:text=Al%20Bahlul%20v.- ,United%20States.,a%20war%20crime:%20Attacking%20Civilians. (accessed March 23, 2024).

[3]IACHR: Towards the closure of Guantanamo, IACHR: Inter-American Commission on Human Rights. (2015). https://www.oas.org/en/iachr/multimedia/guantanamo/guantanamo.html (accessed March 23, 2024).

[4]Guantánamo Bay: An international humanitarian and criminal law perspective, International Bar Association. (2022). https://www.ibanet.org/Guant%C3%A1namo-Bay-an-International-Humanitarian- and-Criminal-Law-Perspective#:~:text=Al%20Bahlul%20v.- ,United%20States.,a%20war%20crime:%20Attacking%20Civilians. (accessed March 23, 2024).

[5]F. Ní Aoláin, Technical Visit to the United States and Guantánamo Detention Facility by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. (2023). https://www.documentcloud.org/documents/23862470-2023-06-26-sr-terrorism- technical-visit-us-guantanamo-detention-facility?responsive=1&title=1 (accessed March 23, 2024).

The All Party Parliamentary Group for the Closure of the Guantanamo Bay Detention Facility met on 23 October 2023 to agree aims and speak with Fionnuala Ní Aoláin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, whose report in June 2023 demanded “apology, full remedy, reparation, and guarantees of non-repetition to all victims”.

Parliamentarians in attendance included:

Chris Law MP (Chair)
Apsana Begum MP
Baroness Shami Chakrabarti 
Baroness Helena Kennedy KC
John McDonnell MP

The aims agreed by the APPG were as follows:

1) To urge the UK government to use its influence as a key ally of the USA to call on the US government to finally secure the closure of the facility.
2) To urge the UK government to work internationally on the urgent and humane resettlement of detainees unanimously approved for release from Guantanamo by high-level US government review processes.
3) To urge the UK government to use its influence to call on the US government to ensure that the detainees receive adequate care for their long-standing physical and mental health needs, as required under international humanitarian law.

The group also discussed further the case of Ravil Mingazov, the former Guantanamo detainee who has been held since 2017 in prison in the UAE.

Andy Worthington summarised a meeting held at the European Parliament on 28 September on the closure of Guantanamo Bay. That meeting included a live talk by Mansoor Adayfi, former Guantanamo detainee and author.

Chris Law MP (SNP), Co-Chair of the APPG, at the Guantanamo vigil in June

MPs and Peers met in Parliament on Monday, 26 June 2023 to new All-Party Parliamentary Group (APPG) for the Closing of the Guantánamo Detention Facility.

Appearing at the APPG was former detainee Mohamedou Ould Salahi, author of The Guantanamo Diaries, which was the basis of the film The Mauritanian and Mozzam Begg, a British former detainee who is now Outreach Director for the group CAGE. Also addressing the APPG was Clive Adrian Stafford Smith OBE, a British/American lawyer who has represented over a dozen detainees in court and is the founder of Reprieve, an NGO of lawyers assisting victims of human rights abuses.

The Group also heard from Yusef Mingazov, the son of Ravil Mingazov, who was held in Guantanamo for 14 years before being released to the UAE where he was re-imprisoned and is now held without access to lawyers.

The meeting coincided with the United Nations International Day in Support of Victims of Torture. And torture is what has kept these men in limbo for so long. Having subjected them to beatings, sleep deprivation, water boarding and extreme temperature, the Americans remain unwilling to appear before a real court of law.