Human Rights Issues in Guantanamo Bay

Abstract

This article addresses the developments surrounding the continued detention and treatment of the detainees at Guantanamo Bay, Cuba, and examines the legal issues arising from them. The present political environment has left deep scars in international and human rights law. The detention of some 660 individuals in Guantanamo Bay has caused academic and diplomatic disputes. There is a serious legal debate as to the legality of the detention. The USA has classified these men as ‘unlawful combatants’, who are not subject to the Geneva Convention of 1949, which regulates the treatment of detainees in an armed conflict. According to the US authorities, Taleban fighters and Al-Qaeda do not fall within the Geneva Conventions. No attempts have been made on behalf of the US to verify the detainees' legal status by way of a tribunal. This article examines the possibility of alternative legal recourses, such as the application of the Fourth Geneva Convention which protects civilians who fall in the hands of the enemy, the application of the International Covenant on Civil and Political Rights, which the USA has ratified, and finally the existence of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations General Assembly. Each of these instruments, despite the complexity of their provisions, ensures a minimum standard of treatment of the detainees. The detainees' legal status, however, remains unclear; accordingly they are trapped in a legal black hole. Numerous attempts have been made to solve this international embarrassment. The USA opted for trial by military commission, to which the international community was strongly opposed. The measures carried out by the US authorities and by the British government in relation to the detention of suspected international terrorists are critically scrutinised in this article. Some detainees have been freed, which raises questions of possible compensation. Consideration is also given as to whether the legal measures taken until now are sufficient for the protection of their human rights. What is certain is that the treatment of possible terrorists has drastically changed, undermining human rights and civil liberties.