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GUANTAMO DETAINEES, WAR ON TERRORISM, GENEVA CONVENTIONS

Luca De Matteis
(Movimento per la Giustizia - Italia)

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1. Introduction.
Guantanamo is central to the Bush Administration's strategy to prevent judicial review of the legal status of prisoners: in this respect, there seems to be a "cultural" connection to the provisions of the so called Patriot Act .
In these brief remarks the stress will be put on compliance or non-compliance of the creation and operation of the detention facility in Guantanamo with the main treaties establishing the framework of International Humanitarian Law and namely with the Geneva conventions of 1949.
What these notes do not address is the problem of sanctionatory consequences of said compliance or non compliance. Such topic, involving issues of dramatic amplitude such as the nature of International Law and the relationship between Law and Justice, transcend the scope of this writing.

2. Guantanamo: Facts and Figures
Located on Cuban territory, it is considered the "legal equivalent of outer space", unlike military bases on US territories: these other locations were ruled out as prison sites because they fall under the jurisdiction of the Ninth US Circuit Court of Appeals, a tribunal often taking overtly liberal positions which would inevitably clash with the regime of detention sought by the US administration.
Guantanamo base consists of a number of facilities: apart from the operational, housing and recreational facilities, there are two main detention areas.
As of February 19, 2002, Camp X-Ray was the only camp site on the northern side of the U.S. Naval Base Guantanamo Bay and was being used as a temporary detention facility.
The first detainees arrived at Camp X-Ray January 11, 2002.
Though US Department of Defense (DoD) officials stressed that the holding conditions at Guantanamo would be humane and in accordance with the Geneva Conventions, the validity of that claim was questioned by some following the release by the DoD of pictures of the detainees at Camp X-Ray (such as the by now famous pictures of the so called "chicken stalls").
Detainees at Camp X-Ray were housed in temporary units (roughly 2.5 x 2.5 meters) surrounded by wire mesh. They slept on 10-12 cm.-thick mattresses with sheets and blankets. The mattresses were on the floor, as is Afghan custom. Each unit had a concrete slab floor and a combination wood & metal overhead cover.
Detention units were separated by chain link fence while razor wire and watchtowers surrounded the compound. Guards inside the compound carried no weapons, to prevent detainees from possibly capturing weapons. The guards outside the compound were armed, however.
Apart from questions concerning conditions of detention, the disclosure of the nature of Camp X-Ray brought concerns that the United States was applying international law selectively. Foremost among these issues was the question of the legal status of the detainees with many feeling the men ought to be granted the status of Prisoners of War, which gives them certain rights under the Geneva Conventions, including legal representation. The U.S. was steadfastly refusing that designation, referring instead to the men as illegal combatants.
To alleviate claims of mistreatment, the Pentagon temporarily suspended flights of prisoners to the base on Thursday January 24, 2002, officially to avoid overcrowding. It also allowed members of the International Red Cross and the British government to visit the camp. The Red Cross recommended some changes while the British officials reported that the three British citizens being held at the facility had no complaints.
As of March 27, 2002, there were 300 detainees in Camp X-Ray, representing at least 33 different countries.
As a reaction to widespread criticism as of April 9, 2002, construction of Camp Delta had already been approved and funded with construction having already begun at Radio Range, approximately five miles from Camp X-Ray. Construction of the new detention facility officially began on February 27, 2002. The first 408 new detention units were completed by the middle of April.
Camp Delta was initially a 612-unit detention facility. It is built on the site of a former facility made up of cinder-block buildings used years before during a Haitian refugee operation. Each detention units is 2.4 meters long, 2 meters wide and 2.4 meters tall and constructed with metal mesh material on a solid steel frame. Approximately 24 units make up a detention block. The facility has indoor plumbing with each unit having its own floor style flush toilet, metal bed-frame raised off the floor, and a sink with running water; none of which was available at Camp X-Ray where portable toilets were used instead. Areas at Camp Delta are also better controlled than Camp X-Ray and detainees are out of the sun more. There are also two recreation/exercise areas per detention block at Camp Delta. The maximum security portion of camp Delta is made up of three detention blocks.
U.S. Army Military Police make up the security force inside the camp.

3. Conditions of Detention: the Observations of the International Red Cross
The ICRC has been visiting detainees held at Guantanamo Bay, Cuba since January 2002. There are currently about 600 detainees from roughly 40 countries speaking about 17 different languages.
Among others, the US continues to detain two juveniles i.e. detainees under 18 years of age at Guantanamo Bay .
As of early December 2002, it was also reported that about five percent of the detainee population at Camp delta were being treated for psychological disorders either pre-existing or that have arisen since their arrival at the Guantanamo Bay.
As of early February 2003, there had been a total of 15 suicide attempts by detainees since Al-Qaeda suspects began being flown to Guantanamo Bay. As of February 6, 2003, five of these 15 attempts had taken place within the span of the previous three weeks. The most serious incident took place on January 16, 2003, during which a detainee was found hanging in his cell and was only prevented from killing himself through the intervention of guards. The prisoner was said to be in stable but serious condition.
According to the former military commander of Guantanamo Base (Geoff Miller, now in charge of Iraqi detention facilities), "the US is gaining every day information of inestimable value by interrogation of detainees": they are not released for this specific reason.


4. The Question of the Status of Guantanamo Detainees
To qualify for transfer and detention at Camp Delta, Guantanamo, prisoners taken in Afghanistan must meet any one of the following criteria:
1. Be a foreign national;
2. Have received training from Al-Qaeda; or
3. Be in command of 300 or more personnel.
On the side, it must be noted (although it trascends the scope of the present essay) that many of those captured in the context of the so-called War on Terror are being held, according to public statements by official US sources, incommunicado at undisclosed locations. The US has ignored any call on part of international aid organizations (such as the Red Cross) to make known the whereabouts of these prisoners.
For many detainees at Guantanamo Bay more than two years have passed since their arrest. Despite repeated appeals by the ICRC to the American authorities, the persons held in Guantanamo Bay are still facing seemingly indefinite detention beyond the reach of the law. There have been US government assurances that a review process is in place that should lead to further releases of persons against whom no charges are brought. However, there is no indication that the US is willing to address the issue of the status of detainees at Guantanamo in scope of the Geneva conventions.

International Humanitarian Law provides for the prosecution of people suspected of having committed war crimes or any other criminal offence. It requires that the individuals concerned be afforded essential judicial guarantees. These include the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to qualified legal counsel and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment.

It is therefore necessary to define a legal framework concerning the status of the detainees at Guantanamo.

5. Definition of "War against Terrorism" as Armed Conflict in View of the Application of the Geneva Conventions.
Specific aspects of the so-called "war on terrorism" launched after the attacks against the United States on 11 September 2001 amount to an "international armed conflict" as defined under IHL. The war waged by the US-led coalition in Afghanistan that started in October 2001 is an example. The 1949 Geneva Conventions and the rules of customary international law were fully applicable to that international armed conflict, which involved the US-led coalition, on the one side, and Afghanistan, on the other side.

A) Combatants
This signifies that combatants for Afghanistan (whether Afghan nationals or third party nationals acting as organic components of the Afghan armed forces) captured in the period of time from the beginning of war until the establishment of a new government in Afghanistan (see below, § 5 B.) should be granted Prisoner of War (POW) status under the scope and to the ends of the Third Geneva Convention . Captured combatants must be granted POW status and may be held until the end of active hostilities in that international armed conflict. POWs cannot be tried for mere participation in hostilities, but may be tried for any war crimes they may have committed. In this case they may be held until any sentence imposed has been served.
What is more important and constitutes the first and most blatant breach of the Third Geneva Convention is that if the POW status of a prisoner is in doubt this Convention (art. 5) stipulates that a competent tribunal should be established to rule on the issue.
If, as we maintain, the prisoners taken in this period of time should be granted POW status, the detention at Guantanamo and the failure on part of the US armed forces to subject them to a fair trial breaches a relevant number of provision of the Convention .

B) Non-combatants
Civilians detained for security reasons in the same period of time as stated above (January-June 2002) must be accorded the protections provided for in the Fourth Geneva Convention. Combatants who do not fulfil the requisite criteria for POW status (who, for example, do not carry arms openly) or civilians who have taken a direct part in hostilities in an international armed conflict (so-called "unprivileged" or "unlawful" belligerents) are protected by the Fourth Geneva Convention provided they are enemy nationals.
Contrary to POWs such persons may, however, be tried under the domestic law of the detaining state for taking up arms, as well as for any criminal acts they may have committed. They may be imprisoned until any sentence imposed has been served.
Even under the status of the Fourth Geneva Convention, Guantanamo detention breaches a number of relevant provisions .

C) Status of people detained in non-international conflict
Following the overthrowing of the Taliban government and the establishment of the North Coalition rule in Kabul (June 2002), the military operations in Afghanistan cease to be qualifiable as international armed conflict and fall in the category of non-international armed conflict waged as part of the fight against terrorism. Persons involved in such conflict are protected by Art. 3 common to the Geneva Conventions and the relevant rules of customary international humanitarian law. The rules of international human rights and domestic law also apply to them. If tried for any crimes they may have committed they are entitled to the fair trial guarantees of international humanitarian and human rights law.

6. Conclusions.
The current international framework evidently does not provide the possibility, either by law or de facto, to address the issue of the violation by the US of the Geneva Conventions.
However, what is important to know is that no person captured in the fight against terrorism can be considered outside the law. As stated by an official document of the International Red Cross Committe, there is no such thing as a "black hole" in terms of legal protection. This implies:
1) that the question of the status of detainees in Guantanamo cannot be further evaded by the US administration if they wish to maintain the framework of the Geneva Treaty "System";
2) that it should be made clear that, even beyond the specific provisions contained in the Geneva treaties, general customary principles of International Law impose the immediate application to the detainees in Guantanamo of the minimal guarantees referred to in Art. 3 of the Conventions.

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