Guantanamo: Illegal and Unjust

Rights-free zones: illegal and unjust

Mukul Sharma

The Guantanamo model signifies the abandoning of basic principles of human rights. It de-legitimises us.

“O Father, this is a prison of injustice.

Its iniquity makes the mountains weep.

I have committed no crime and am guilty of no offence.

Curved claws have I,

But I have been sold like a fattened sheep.”

— Abdulla Thani Faris al Anazi, a Guantanamo detainee since 2002, arrested in Afghanistan, and turned over to the United States forces by bounty hunters.

January 11, 2008, will mark six years since the first detainees were transferred to Guantanamo Bay. The U.S. naval base there is a rights-free zone for the detention, treatment and trial of certain people in connection with the “war on terror.” Here, the Pentagon is authorised to hold non-U.S. citizens in indefinite custody without charge; the detainees are barred from seeking any remedy in proceedings in any U.S., foreign or international court; if any det ainee were tried, the trial would be by a military commission — an executive body — and not an independent or impartial court. A Justice Department memorandum to the Pentagon advises that because Guantanamo Bay is not a sovereign U.S. territory, the federal courts should not be able to consider habeas corpus petitions from ‘enemy aliens’ detained at the base.

Most detainees there are housed in conditions amounting to cruel, inhuman or degrading treatment. Most spend 22 hours a day in total isolation, and suffer other forms of sensory deprivation. A majority of them have been held for nearly six years with no prospect of a fair trial, no direct access to their families, and no access to a lawyer. These conditions have had a shattering impact on their psychological and physical health. At least four men are stated to have committed suicide, and many suicide attempts have been reported (For details see, “Guantanamo Bay – a legal black hole,” The Hindu, January 6, 2007).

International campaigns have raised many issues regarding this: closing down the detention centre at Guantanamo Bay and ending the U.S. secret detention programme, wherever it is based; releasing all detainees held in the “war on terror,” including those held at Guantanamo, unless they are to be charged and given a fair trial; stopping secret detentions, unlawful transfer of detainees between countries (rendition) or enforced disappearance in counter-terrorism operations; repeal of the Military Commissions Act 2006; and providing prompt and adequate reparation.

The fifth anniversary of the first transfers to Guantanamo was marked by activists around the world staging demonstrations and other activities. U.N. Secretary-General Ban Ki-moon, the U.N. Committee against Torture, former U.S. Presidents Jimmy Carter and Bill Clinton, heads of states from Europe and elsewhere, human rights and legal organisations, and many more have supported various calls for the centre to be closed. The U.S. Supreme Court ruled against the government in two Guantanamo cases, decided in 2004 and 2006, and it is now considering whether the detainees should have access to courts — right to habeas corpus — to contest their detention.

Yet, the Guantanamo camp has not been closed, and it has thrown up a huge challenge to the international community. A model like Guantanamo signifies the abandoning of basic principles of human rights. It delegitimises us.

As Archbishop Desmond Tutu said on February 17, 2006, “It is disgraceful. I never imagined I would live to see the day when the United States and its satellites would use precisely the same arguments that the apartheid government used for detention without trial.”

It would have been virtually impossible for Guantanamo to continue without a global war paradigm, constructed under the rubric of “war on terror.” Using this, parts of international humanitarian laws, selectively interpreted, are deemed to apply, and human rights laws are generally disregarded. The administration repeatedly claims that they do not hold ground in armed conflicts. There are thus new rights-free zones, like Guantanamo, in different parts of the world, where a detainee can be subjected to cruel, inhuman and degrading treatment or punishment, including prolonged solitary or cellular confinement in conditions of reduced sensory stimulation.

Secret, unacknowledged arrests

Here we have secret, incommunicado and unacknowledged arrests and tortures, and all those who have been subjected to enforced disappearances and encounters are not provided access to effective remedy and justice, including compensation. Here we have anti-terror, so-called security laws, which suggest humane treatment as a matter of choice rather than law, and which exclude the security officials even from that choice. These occurrences should also be seen in the context of a dominant development paradigm, where Exclusive Economic Zones, Special Economic Zones and industrial projects in the tribal heartlands can be implemented, without free, informed and prior consent of the people.

Human rights activists in the rights-free zones are subjected to death threats, persecuted through the judicial system and silenced with the introduction of security laws. Going through unfounded investigations and prosecutions, many even disappear or are murdered.

Europe often presents itself as a beacon of human rights. However, the uncomfortable truth is that without Europe’s help, some men would not now be nursing torture wounds in prison cells in the rights-free zones, including Guantanamo. The revealing report of Dick Marty, Rapporteur of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, concludes: “The body of information gathered makes it unlikely that European states were completely unaware of what was happening, in the context of the fight against international terrorism, in some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services.” (Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member States, June 7, 2006, Draft Report - Part II (Explanatory memorandum), Para 230). In Asia and Africa, a large number of people in Pakistan, Kenya, Somalia and Ethiopia became victims of rendition transferred in secret from one country to another, and to Guantanamo, through their governments.

Facts and figures on Guantanamo, released at the end of 2007, by Amnesty International are an eye-opener: nearly 800 detainees are being held there. Approximately, 300 detainees of around 30 nationalities were being held without charge or trial in November. Only one Guantanamo detainee, David Hicks, was convicted by the military commission in March 2007. He pleaded guilty to “providing material support to terrorism” under a pre-trial agreement that ensured his release from the U.S. custody after five years, and return to his native Australia to serve a nine-month prison term. Only three detainees were charged for trial by the military commission.

Between 2002 and November 2007, around 470 detainees were released into other countries. At least four of those still held were 18 years old when taken into custody. Detainees had been taken into custody in more than 10 countries before being transferred to Guantanamo, without any judicial process. An analysis of around 500 of the detainees concluded that only five per cent had been captured by the U.S. forces; and 86 per cent arrested by Pakistan or Afghanistan-based Northern Alliance forces and turned over to the U.S., often for a reward of thousands of dollars.

All rights-free zones are in violation of international and national human rights laws. Detention of each person there or every act of appropriation of natural resources in these zones is illegal and unjust. Treating all people deprived of their liberty with humanity, and with respect for their dignity, is a fundamental and universally applicable rule. It must be applied without distinction. Rights-free zones, like Guantanamo, should be closed not tomorrow, but this morning.

In general, most countries and their people have simply not taken a stand. They seem to believe that this is not their problem. They think they did not contribute to Guantanamo, and therefore they do not have to be part of the solution. We, the people, and the governments around the world can play a positive role in ending illegal U.S. detentions in the name of “war on terror.”

Among other things, we and our governments can protest to U.S. authorities against illegal detentions, provide lasting protection for detainees released from Guantanamo and elsewhere, and oppose all unlawful transfers of detainees between countries.

(Mukul Sharma is Director of Amnesty International in India.)