ONE OF PRESIDENT Barack Obama’s first official acts in January 2009 was to sign an executive order to close the US military detention centre at Guantánamo Bay, Cuba, within a year.
After eight years of detentions at Guantánamo, this held out a promise of change. But the order’s failure to recognise the USA’s human rights obligations, coupled with the Obama administration’s adoption of its predecessor’s flawed “law of war” framework, have brought no end to the indefinite detentions.
Today will mark five years since President Obama’s executive order. In the meantime, the prison camp has continued to operate in a human rights vacuum.
The Guantánamo detentions remain an affront to international human rights principles and undermine the USA’s credibility. As the prison camp enters its 13th year, the world must take the USA to task for its abject failure to live up to the international human rights standards it so often demands of others.
Twelve years after the first detainees were brought to Guantánamo, strapped down in planes like cargo, more than 150 men are still held there. Most of them have never been charged or tried.
The detainees still held at Guantánamo include individuals who should be brought to justice on charges linked to the 11 September 2001 attacks or other serious human rights abuses. Respecting the victims’ right to justice would have meant charging and bringing such individuals to fair trial in ordinary civilian courts years ago.
Despite a US Supreme Court ruling – five and a half years ago – that the Guantánamo detainees had the constitutional right to a “prompt” hearing to challenge the lawfulness of their detentions, some detainees have yet to have a habeas corpus ruling which would allow them to challenge the legality of their ongoing detention.
In the twisted legal logic of Guantánamo, even a judicial finding that an individual’s detention is unlawful may not mean his immediate release. The transfer last month of three Chinese ethnic Uighur men to Slovakia came more than five years after a US federal judge ruled their detention unlawful. If the USA would do what it asks other countries to do – to take into the USA released detainees who cannot be repatriated – the Uighurs could have been released immediately after the judicial ruling in their case.
More than 70 others – the majority of them Yemenis – have been “approved for transfer”, but the USA’s view of the security situation in their home countries and other issues have delayed their release.
A few detainees face trial under a military commission system that does not meet international fair trial standards. Six currently face the possibility of the death penalty. Of the almost 800 detainees that have been held there, only seven – less than one per cent – have been convicted by military commission – five of whom pleaded guilty under pre-trial agreements that promised a possible way out of the base.
Meanwhile, the absence of accountability, truth and remedy for human rights violations committed against former and current Guantánamo detainees is a festering injustice that leaves the USA in serious violation of its international human rights obligations.
Guantánamo detainees have been tortured and subjected to other ill-treatment – either in Guantánamo or elsewhere in US custody before they got there – including “waterboarding”, being held in prolonged isolation, and, more recently, cruel force-feeding procedures in response to a mass hunger strike in protest at their ongoing detention.
Nine detainees have died in custody at the base – two of natural causes and seven suicides.
If any other country was responsible for this human rights vacuum, it would surely draw the USA’s condemnation. But the USA has allowed the Guantánamo detentions and the accountability gap to persist even as it has continued to trumpet its commitment to human rights.
This double standard has not gone unnoticed. Other governments, UN experts and non-governmental organizations have been among those who have called for an end to the Guantánamo detentions.
Even the first commander of detentions at the base, now-retired Major General Michael Lehnert, recently said that the Guantánamo detention facility “should never have been opened”. In his estimation, the detention and torture there had “squandered the goodwill of the world” following the 11 September 2001 terrorist attacks on the USA.
Closing Guantánamo must mean ending the violations it has come to represent – simply relocating them is unacceptable. The world should press the USA to drop its flawed “global war” legal framework. Congress and the Obama administration should commit to a counter-terrorism strategy that fully complies with international law and standards.
No line can be drawn under Guantánamo without full accountability for the human rights violations, including crimes under international law, that have been committed at the base and elsewhere in the USA’s “global war on terror”.
Closing the detention centre won’t bring about such accountability overnight. But doing so remains an important – and necessary – step in the right direction.
Colm O’Gorman is the executive director of Amnesty International Ireland.
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