Because the Guantanamo Bay detention camp, or Gitmo as it has become affectionately known, is not built in the land of the free, the United States of America does not have any responsibility to protect the unfortunate souls who remain incarcerated within its walls. That is the crux of the legal argument, the US claimed before the UN Human Rights Committee, which allows its agents to detain in Gitmo anyone they like without trial, without charge, indefinitely, and to carry out against those detainees enhanced interrogation techniques, euphemistically known amongst poets and pseuds as ‘torture’.
Having ratified the International Covenant on Civil and Political Rights (ICCPR), one would expect that such provisions as Article 7 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and Article 14 (everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law) would prohibit the US from carrying out such behaviour. Except, as with most things in international law, things aren’t so clear cut.
The US argues that the ICCPR precludes the people it incarcerates in Gitmo. Of all the provisions in the 7,000 word document, the United States’ legal argument rests on one solitary three letter conjunction.
This single word is what the US claims justifies the legality of imprisoning children as young as 13, is what justifies holding someone for 11 years without charge, and is what justifies the force feeding of the 100 inmates now on hunger strike in response to their predicament.
Article 2 of the ICCPR states ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory AND subject to its jurisdiction the rights recognized in the present Covenant’.
Whether the US fulfils both these criteria rests on a dusty, century old treaty. Article 3 of the Agreement between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, signed on 23 February 1903, states
‘While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.’
So whilst the US admits that there is no doubt that those fathers, uncles, husbands, brothers and sons are all firmly under the jurisdiction of the United States, they insist they are not under obligation to respect or ensure their human rights as they are not sovereign over the territory as well. Cuba does not have responsibility either. They have signed but not ratified the ICCPR although it matters little as the 1903 treaty states that they are sovereign over the territory, but do not have jurisdiction over it, again failing to fulfil the criteria set out in Article 2 of the ICCPR.
The Human Rights Committee attempted to plug this legal loophole by stating that, in fact, the correct interpretation of Article 2 is that States are ‘to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.’ Yet it is questionable whether this is consistent with Article 31 of the Vienna Convention on the Law of Treaties which demands a treaty be interpreted ‘with the ordinary meaning to be given to the terms of the treaty’.
Conversely, one may be entitled to ask whether the United States’ interpretation is in line with the article’s other demand, that the ‘treaty shall be interpreted… in the light of its object and purpose.’
The realpolitik of the current situation has however rendered the Committee’s hole plugging attempts about as effective as moving the sofa to cover a stain on the carpet. The US has justified itself and does as it wishes. At the end of April, Barack Obama promised to close Guantanamo, but it’s all been heard before, back in 2008, in fact. As the number of prisoners having feeding tubes shoved agonizingly up their noses increases, Obama’s words seem increasingly hollow as he speaks only of the best interests of America, rather than of the best interests of Gitmo’s prisoners.
Benjamin F. Owen