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The Illegality of Guantanamo Bay

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About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

The Guantanamo Bay detention camp, a prison where accounts of torture and incarceration without trial have been rife, remains a highly controversial aspect of US foreign and domestic security policy. Since the opening of the institution under George W. Bush’s administration in January 2002, 779 prisoners have been detained at Guantanamo Bay under suspicion of terrorism. However, many of these prisoners have been charged without evidence or trial; in addition to this, many inmates have not been charged with any crimes whatsoever. This shows a clear breach of human rights in the wake of the so-called ‘War on Terror’.

The prison population at Guantanamo has been substantially reduced since its creation, from 779 prisoners to 122. Since becoming president, Barack Obama has attempted to close the facility on numerous occasions; despite this, 122 men are still held there.

One remaining prisoner is Shaker Aamar, a detainee who was cleared for release in 2007 but has only recently been told he will be able to return to the UK. The story of his plight, along with others, will be used within this article to debate the implications of international law on Guantanamo Bay itself, its ever-impending closure and why the USA appears to have been allowed to continuously breach the human rights of its prisoners. Despite growing international criticism of the inhumane practices at the detention centre, it may still be a long time until Guantanamo Bay can close its doors for good.

A history of Guantanamo Bay

Two months after the devastation of the September 11 attacks in the USA, George W. Bush announced the need to find an appropriate location for foreign nationals to be detained in order to officially launch his ‘war on terror’. Exactly four months after the attacks, on 11th January 2002, the first twenty detainees were transported to Guantanamo Bay. Until April of that year, Guantanamo detainees were housed in ‘Camp X-Ray’, prior to more permanent facilities being built within ‘Camp Delta’. The remaining detainees of Guantanamo Bay are now housed in Camps B and C; these former units have now being entirely abandoned. However, the scores of men brought to Camp X-Ray, clothed in orange boiler suits in the prison’s early days are likely to be etched in memories across the world forever.

Prior to its use as a prison camp, Guantanamo Bay was used as a U.S naval base. It is located in the south of Cuba and was acquired by the U.S. during a 1903 agreement with the Cuban government. Under this agreement, although Cuba holds ‘absolute sovereignty’ over the land, the USA holds ‘ the right to use and occupy the waters adjacent to said areas of land and water, and generally to do any and all things necessary to fit the premises for use as a cooling or naval station only, and for no other purpose’.

On top of this, Guantanamo Bay has been used as a way to reassert the USA’s control over Cuba; in 1951, President Ronald Reagan stated that the US’s control over Guantanamo Bay was a political issue, aiming to reassert America’s presence against Cuba’s will. It is therefore clear that Guantanamo Bay has been used as a form of political propaganda against Cuba even prior to its use as a detention unit. Given the ‘war on terror’ has pushed concerns about terrorism to the forefront of political and legal attention in the Western hemisphere, the need to distribute proportionate punishment for those involved in terrorism has become a significant need across the world.

This need is particularly heightened in response to terrorist attacks, for example the 9/11 and 7/7 bombings and the 2004 train bombings in Madrid. Alongside the rise of terrorist groups, including Al-Qaeda and Islamic State, concern over terrorist activity and subsequent tensions between the West and the Middle East has heightened significantly. In this regard, having a ‘black site’ such as Guantanamo Bay allows adoption of a more pragmatic and utilitarian approach toward preventing terrorism. Here, normal U.S criminal procedures are abandoned in terms of holding detainees for an indefinite period without charge. In short, the lack of surveillance over Guantanamo Bay allows its instigators to punish alleged terrorists for their apparent crimes.

However, it is evident and has been since its inception that the punishment given at Guantanamo Bay is anything but proportionate. This can be seen from the infamous video of Mos Def, an American rapper, being force fed in what are standard conditions for detainees. Alongside this, inmates’ accounts of sexual assault, sleep deprivation and solitary confinement are rife. As a result of such controversial reports, Barack Obama quickly expressed his intention to close the detention camp a mere two days after his inauguration as President in January 2009. At the time of announcing this, Obama stated that he wished to close the facility ‘promptly’, and at the latest by the following January. In order to do this, he stated he would further the USA’s national security and foreign policy interests as well as the ‘interests of justice’ for Guantanamo’s prison population.

In 2013, President Obama generated new hope in closing Guantanamo Bay for good by announcing that he would lift the moratorium on transferring many of its detainees to Yemen. Further to this, he also called on Congress to end restrictions on steps to close the prison, and instead create a facility within the U.S. for its unreleased detainees, whom would have officially had charges brought against them. This causes further problems within the US justice system, given the limited information America’s intelligence services have on many of the remaining Guantanamo detainees. Many are simply the victims of bounty hunters whom have been spotted in Islamic war zones, for example Iraq and Afghanistan, or for speaking with suspected terrorists.

The concept of detaining persons whom may not even be partaking in terrorist activity is echoed in so-called ‘signature strikes’ by the US government, whereby the CIA and JSOC are permitted to carry out drone strikes to kill without requiring them to know who they are killing. Accordingly, innocent civilians will often lose their lives for no reason in a policy which perfectly demonstrates the low threshold U.S policy attaches to labelling persons’ terrorists, as well as the brutality sometimes exercised in the ‘war on terror’.

In essence, moving the remainder of Guantanamo prisoners to a facility located in the US is likely to cause further controversy for American intelligence and security services. Despite Obama’s clear intention to put a stop to the atrocities suffered at Guantanamo Bay, his motion to close the facility was defeated in the U.S. Senate in May 2009. 7 years later and despite a reduction of around 700 in the amount of prisoners detained at Guantanamo, the prison still continues to operate. It is now necessary to look at some of the horrific accounts from prisoners of their treatment while at Guantanamo, including those of Shakar Aamer, whose release from the facility is hopefully imminent.

Shaker Aamer’s story

In 2001, Shaker Aamer, a Saudi national who had lived in the U.S and the UK since his 20s, moved to Afghanistan with his wife and children to work for a charity. Following the 9/11 attacks, Aamer was seized from Afghanistan by bounty hunters working alongside the U.S after the military alleged he had significant ties to Islamist extremist groups, including al-Qaida and Osama Bin Laden. Unfortunately, Aamer’s story is far from uncommon in Guantanamo. According to Amnesty International, more than 85% of detainees in 2006 had been caught by bounty hunters employed by the Northern Alliance in Pakistan and Afghanistan.

Typically, bounty hunters are drawn into capturing so-called ‘terrorist suspects’ and handing them to the American authorities for a substantial payment. Regrettably, once persons are given to U.S. authorities in this way, it is unlikely they will be released in the near future due to the administrative nightmare releasing detainees. Despite this, Aamer has never been charged with an offence and in 2007 the U.S. authorities admitted they had no case against him. The same year, two other UK nationals were released and returned to the UK. However, the Foreign Office prevented Aamer’s return due to ‘significant additional security concerns’, despite the U.S. declaring they had no remaining concerns about Aamer’s activity prior to being detained. This appears to show the department’s reluctance to allow innocent terrorism detainees to re-enter the UK, coupled with the confusion that is rife throughout Guantanamo Bay’s administrative system.

There has been no shortage of media coverage regarding Shaker Aamer and the other Guantanamo inmates’ plight; in 2013, an e-petition calling for urgent steps to be taken by the British government to ensure Aamer’s release attracted over 100,000 signatures as part of the ‘Save Shaker’ campaign. Alongside this, Jeremy Corbyn has recently shown his support for Shaker Aamer’s continuing campaign by arguing alongside other MPs that Aamer’s detention goes against the British rule of law. Aamer’s case has also received substantial support from Reprieve, whom he is represented by, and Amnesty International. Although Aamer has now been ensured release by the U.S. government after a 30-day probationary period running from the 25th September to the 25th October, a member of his legal team, Clive Stafford Smith of Reprieve, states that Aamer still doubts the news that he will ever be returned to the UK:

It’s not so much a matter of disbelieving, as him saying: ‘I’ll believe it when I see it, and I’m not going to get my hopes up until it happens’… he’s been told for 3,000 days or so [since 2007] he’s going to be freed, and the fact that I come along and tell him he’ll be freed – why would he believe it?

Shaker Aamer has detailed horrific brutality during his time at Guantanamo Bay. As well as being forced into solitary confinement for ‘non-compliance’, according to Reprieve, he has also been beaten over 300 times by prison guards. Aamer alleges U.K institutions including MI5 and MI6 were complicit in his torture during his capture and intends to bring a case against them and others involved. He stated that prior to being transferred to Guantanamo from Bagram airbase in Afghanistan, he was interrogated by British agents who would have known the torture suffered at Bagram by Aamer and other inmates. Bagram airbase was originally used to process Guantanamo prisoners before their transferral, and holds plenty of its own accounts of torture.

The case of Shaker Aamer has received significant attention internationally and has heightened the British public’s perceptions of torture in Guantanamo Bay. It is highly significant that Aamer will be the final British resident to be released from the facility given that it marks a chapter in the history of the detention centre. It is now necessary to look at the reasons why the U.S. has been allowed to detain individuals at Guantanamo for so long in an obvious breach of their human rights such as those contained under the International Covenant on Civil and Political Rights, and the relevant conventions which may need to be changed in light of these atrocities.

Legal issues surrounding Guantanamo

The torture experienced in Guantanamo by its prisoners is far from a secret. Stories of force-feeding are common, as are regular beatings. Although force feeding is sometimes necessary, for example in the use of I.G. tubes in hospital, the methods employed in Guantanamo are argued to be inhumane, particularly when paired with Forced Cell Extraction methods. Many of those force-fed protest against their detention by going on hunger strike. When a prisoner whom is on a hunger strike refuses food, Forced Cell Extraction officers will often punish them by restraining and beating them under U.S. policy. Non-compliant prisoners will then be taken to the restraint chair as seen in the Mos Def video. Although the practice of Forced Cell Extraction is legal, it is argued that such methods are hugely inhumane and in breach of human rights.

Furthermore, despite a Senate Intelligence Committee report addressing torture methods, an ex-Guantanamo inmate, Majid Khan, has told lawyers that prison guards poured ice water on his genitals, videotaped him naked and hung him from a wooden pole for three days. For further detailed information on the contents of the Senate report, see a previous Keep Calm Talk Law article, ‘CIA Interrogation Tactics Unveiled’. It is clear that both the horrific experiences of detainees coupled with the fact that many are incarcerated without charge is completely unlawful.

The international treaty applying most directly to the issues surrounding Guantanamo Bay are the Geneva Conventions 1949. Most relevant to us is the Third Convention, which contains laws relating to prisoners of war. Under the third convention, prisoners of war must be protected from harm and should not be prosecuted for lawful actions on the battlefield. Over the years and since Guantanamo Bay began operating as a detention facility, there has been significant criticism calling for the Third Convention to be rewritten in order for it to include international terrorists, given that they do not currently fulfil the role of ‘prisoner of war’. Further to this, the US has stringently argued that the Geneva Conventions do not apply to Guantanamo Bay as the prisoners are ‘unlawful combatants’ rather than ‘prisoners of war’, and thus cannot be protected under the Third Convention. This also applies to extra-judicial killings of suspected militants by the US, which are typically carried out via drone strikes.

One of the key reasons why Guantanamo has not yet been closed despite Obama’s repeated pledges to shut it down is due to the fact he inherited Bush’s administration, which had the aim of initiating the ‘global war on terror’ under the Authorisation for Use of Military Force. Under this, indefinite detention is lawful and the administration is able to use ‘all necessary and appropriate force’ in self defence against those nations, organisations or persons he deems planned, authorised, committed or aided the terrorist attacks that occurred on September 11, 2001. ‘This is done in order to ‘prevent any further acts of international terrorism against the United States’. Thus, the executive branch may determine the legality of indefinite detentions rather than the judiciary.

Following this, the US Supreme Court held federal courts could exercise their jurisdiction to determine the legality of individual detainees’ detention. Bush’s government then introduced the Detainee Treatment Act; under this, detainees lost their right to trials in American federal courts. However, the Supreme Court declared this Act as unlawful and unconstitutional. It is therefore defunct, but does indeed show the inhumane way detainees began to be treated after the 9/11 attacks and the U.S’s own breach of the rule of law.

On top of this, the introduction of the National Defense Authorization Act 2012 allowed the prohibition of transferring any Guantanamo detainee to a country where returnees have reengaged in terrorist activity. In the event of this, the receiving country must prove they have taken steps to prevent such activity from occurring. Thus far, no prisoner has been released from Guantanamo under this Act.

Despite Obama introducing this Act and therefore limiting Guantanamo detainees’ rights further, he established the Guantanamo Review Task Force, made up of members of the FBI, CIA and Departments of Justice. The purpose behind this was to ascertain what should happen to each Guantanamo detainee. The report conclusively stated that over 150 detainees could be transferred to their home countries or Yemen, and 36 could be referred for U.S prosecution. At the time of the report’s publishing, this left only 48 men whom were found to be too dangerous to be transferred from Guantanamo. Shockingly, the Task Force also found that only six of the detainees faced any formal charges.

In Western society, where human rights are allegedly paramount and international human rights treaties are continually ratified and referred to, it is highly shocking that more is not being done by the US authorities and internationally to release those who have not been charged from Guantanamo. Indeed, the implementation of human rights is said to be a ‘common standard of achievement for all peoples and nations’. Guantanamo Bay appears to do the opposite in promoting US foreign policy of freedom and cooperation between countries by allowing a culture of brutality and torture to prevail. The damage from such a breach of the rule of law is incomprehensible to the US, both in reputation and from a legal perspective.


There appears to be no clear-cut answer as to how the U.S. authorities may continue to abuse human rights daily in Guantanamo Bay; many centre on the antiquated nature of the Geneva Conventions, as well as laws which have not been changed since Bush’s time as U.S president. Given the spread of the ‘war on terror’ across the world, it appears that although the plight of Guantanamo detainees is thoroughly documented worldwide, there has been a huge delay in releasing those who have been detained without charge. Guantanamo commits breaches of human rights every day, and although the case of Shaker Aamar marks a pivotal point within Obama’s campaign to eventually close the camp, this will not result in immediate closure of the centre. It may indeed be a significant amount of time before the camp is able to be closed, and the true atrocities of what have happened over the years may finally come to light.

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Tagged: Anti-Terror, Armed Conflict, Criminal Law, Human Rights, International Law, Justice, Prisons, Rule of Law

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