International Humanitarian Law Violations at Guantanamo Bay

This essay examines the violations of international humanitarian law at Guantanamo Bay, focusing on the legal and ethical issues arising from the US detention facility established in the wake of the 9/11 attacks. It explores the historical context, including the declaration of the War on Terror and the Bush administration's policies regarding detainees, including the controversial memorandum asserting that the Geneva Conventions did not apply to Taliban or al Qaeda detainees. The essay analyzes the relevant international laws, including the ICCPR, Geneva Conventions, and CAT, and how the US has interpreted and applied these treaties. It details alleged human rights violations, such as torture, indefinite detention, and denial of due process, and discusses the responses of the international community. The essay highlights the challenges in enforcing human rights regulations and proposes procedures for the international community to adopt in order to ensure human rights rules are followed at Guantanamo. The essay concludes that, although human rights violations occurred at Guantanamo, there was limited success in enacting change because of the lack of enforcing mechanisms in international human rights law.

Running head: Criminal Law
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Authors Note

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ESSAY TITLE:
Violations of International Humanitarian Law at Guantanamo Bay: An Analysis
ABSTRACT:
Guantanamo Bay1 is being considered as the symbol of the approach made by the United
States to the War on Terror. The detention centres located there is known across the world as
the centre for violation of human rights. But the sad part is the failure of the international
community to take steps to close the facility either by pressurising the US government or by
using enforcement tools against US. The purpose of this essay is to examine whether the
International Humanitarian Law has been violated in Guantanamo Bay and if so, how it is
violated.
The essay firstly discusses the background of the detention centres in Guantanamo, role
of these detention centres in the War on Terror2. Next, the essay analyses the international
laws that are binding on United States together with the detailed descriptions of all the
covenants and treaties to which the US is a party and the arguments made by US regarding
its human rights duties as per the international law. The essay in the third part discusses
about the alleged violation of human rights and these violations have been construed by the
US government. Then the essay throws light on the issues faced by the international
community while attempting the enforcement of the human rights regulations at
Guantanamo3 which also includes how the violations have been responded by the
international community and also discusses about the success of such responses for creating
1 Edwards, George. "Guantanamo Bay Fair Trial Manual for US Military Commissions: An Independent &
Objective Guidefor Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims
and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observers and
Other Military Commission Stakeholders." (2015).
2 Paust, Jordan J. "The ‘war’on terror and international law." Research Handbook on the Politics of
International Law. Edward Elgar Publishing, 2017.
3 Edwards, George. "Guantanamo Bay Fair Trial Manual for US Military Commissions: An Independent &
Objective Guidefor Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims
and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observers and
Other Military Commission Stakeholders." (2015).

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the change. Lastly, the essay provides proposals regarding the procedures to be adopted by
the international community for enforcing the human rights rules at Guantanamo. It appears
very clearly that the human rights rules were violated at Guantanamo. However, there was
little success in making changes due to the lack of enforcing mechanisms in the law of
international human rights.
The War on Terror:
After the World Trade Centre had been attacked by the terrorists on 11th September of
2011, the Guantanamo Bay had become a renowned place where the US military sent the
captured terrorists. The Bush government declared War on Terror4 and further promised the
countrymen that the terrorists would be eradicated. When the War began, Congress and the
nation were very supportive; hence the Bush Administration together with Executive Branch
had been given greater scope to proceed with the war in any desired way. Though the then
President Bush made acknowledgement that the Talibani detainees will be treated as per
Geneva Convention, his Administration however held that the detainees are not entitled the
status of prisoner of war, instead they are treated as combatants and are allowed less rights
than the prisoners of war. The detainees were interrogated in a way that violated the
international standards and norms.
On 7th February, 2002, Bush signed a memorandum which was written by the then
Counsel of White House named Alberto and which asserted that the Geneva Conventions
would not apply to the Taliban or al Qaeda detainees as the present conflicts are international
in nature and Common Article 3 is applicable to only armed conflict5 that is not of the
international character. Such memorandum provided the basis for establishing torture6 as a
4 Paust, Jordan J. "The ‘war’on terror and international law." Research Handbook on the Politics of
International Law. Edward Elgar Publishing, 2017.
5 Solis, Gary D. The law of armed conflict: international humanitarian law in war. Cambridge University Press,
2016.
6 Pope, Kenneth S. "The code not taken: The path from guild ethics to torture and our continuing
choices." Canadian Psychology/Psychologie canadienne 57.1 (2016): 51.

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method of interrogation against the detainees. Though the memorandums showed differently,
Bush stated in an interview that the detainees were not tortured in US.
In the course of his campaign for the seat of President, the then Senator Barak Obama
made a promise to close the facility. Obama expressed his concern regarding policies at the
facility. Further, he made suggestions that he would prefer the detainees’ prosecution as
contrary to the military commission which were presently controlling the trials for the
detainees. When he became President, his Administration supported that neither the practice
of detention centre nor the torture were legal. As a President, he issued two executive orders
to close Guantanamo.
The present stage of Guantanamo is quite messy. Strict restrictions were imposed by
Congress on sending back detainees to their countries of origin with troublesome security
problems. The conditions of the detainees have deteriorated more. For about six months in
2013, many detainees at Guantanamo went for hunger strike which attracted attention from
the American public, Obama Administration and international community. About 106 of the
166 detainees participated in the hunger strike. Even prior to this, in the year of 2005, there
was a mass hunger strike and about 131 detainees took part in it. To combat this, the military
made them eat forcefully.
Obama Administration faced growing criticism because of its failure to close the facility
at the Bay. Though few detainees were sent back to their original countries, still about 100
people were detained at the facility.
Covenants and Human Rights Treaties to be followed by the US:
The international laws that must be followed by US are the International Covenant for
Civil and Political Rights (ICCPR)7, the Geneva Conventions particularly the Third
7 Payne, Caroline L., and M. Rodwan Abouharb. "The International Covenant on Civil and Political Rights and
the strategic shift to forced disappearance." Journal of Human Rights 15.2 (2016): 163-188.

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Conventions – Treatment of Prisoners of War)8, the Convention Against Torture (CAT)9 and
other customary international law10. The ICCPR enacted in US in the year 1992. Thus it is a
legally enforceable treaty; hence each of the signatories must be agreeing to adopt the
domestic acts that give effect to ICCPR. The aim of the treaty is protecting the right to
peaceful assembly, right to life and prevents slavery, torture and criminal acts. It was noted
that there lies no derogation from provision to prohibit inhuman, degrading or cruel
punishment or treatment.
Similarly, when CAT was ratified by US in 1994, another agreement was reached; the
agreements for ICCPR and CAT were actually meant to restrict the extent of the treaties. In
addition to this, when CAT was ratified by US, it restricted the torture definition given in
CAT. Due to this, suffering mentally would not amount to torture until and unless it is meant
to inflict excessive pain as well as the harm is severe. In the same way, the United States also
restricted the definition of “cruel, inhuman or degrading treatment or punishment” found in
Article 16 CAT.
Further, US had duties under the Geneva Conventions mainly Common Article 3 that are
applicable to the prisoners of war. Under the provisions of Geneva Conventions, torture
includes ‘grave breach’ and is also a punishable offence under the War Crimes Act. One of
the problems that appear while applying Geneva Conventions at Guantanamo is the War on
Terror cannot be regarded as an international armed conflict11 as per Geneva Conventions’
Common Article 2. Due to this, the US government identified detainees as adversary
combatants. Lastly, prohibiting torture, cruelty and other inhuman treatment also use the
8 Pictet, Jean S. "The new Geneva Conventions for the protection of war victims." The Development and
Principles of International Humanitarian Law. Routledge, 2017. 139-152.
9 Hogan, Nicole M. "Arbitration and Protection under the UN Convention against Torture and Other Cruel,
Degrading Treatment, or Punishment." Pepp. Disp. Resol. LJ 18 (2018): 1.
10 Von Stein, Jana. "Making promises, keeping promises: democracy, ratification and compliance in
international human rights law." British Journal of Political Science 46.3 (2016): 655-679.
11 Solis, Gary D. The law of armed conflict: international humanitarian law in war. Cambridge University
Press, 2016.

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status of jus cogens in the international law, due to which customary international law is also
applicable to all human beings.
It has been listed by ICCPR that there are many exceptional situations where the stat3s
can impose limitation or even derogate from specific rights available in Covenant. As per
those exceptions, it has to be proclaimed by the state that a state of emergency is reached and
any restrictions essential in the situation shall be consistent with international duties of the
state and they shall not be derogatory too. It is noteworthy that United States had not made
any official derogatory declarations while ratifying ICCPR.
But, in the state of emergency or war all rights cannot be restricted. The Rights that
cannot be limited or restricted are right to life as in Art. 6, prohibition of cruelty or torture,
inhuman or degrading punishment or treatment as in Art. 7, recognition of everyone as
person before law as in Art. 16 and the freedom of conscience, religion and thought as in Art.
18. It has also been established by the Human Rights Committee that rights of habeas corpus
and right to minimum fair trial shall be held with respect even in extreme situations. Further,
as per ICCPR, there lies an absolute restriction on using cruelty and torture, degrading or
inhuman punishment or treatment. Moreover, it was stated by Human Rights Committee that
degrading, inhuman or cruel treatment of the detainees must be interpreted in the widest
extent with an aim to provide protection against any inflicted abuse. The European Court of
Human Rights subsequently had agreed and also expanded its scope of interpretation of the
inhumane treatment so as to include at least one such treatment that causes deliberately
excessive type of physical or mental suffering.
Violations of Human Rights at Guantanamo Bay:
In this situation, the entire world is having idea of the violations of human rights that had
taken place and continued to happen at the Guantanamo Bay. Such human rights violations

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carry on for various causes, the most significant of these is in relation to how human right
duties under international agreements have been interpreted by United States when it is
included as a party. It is very unfortunate that the violations at Bay are many and this has
been reported extensively as it is not permissible for United States which can be regarded as
one of the biggest advocates of doctrine of human rights to commit such violations in other
parts of the world.
In the year of 2012, the United Nations Special Rapporteur on Torture and Other Cruel,
Degrading or Inhuman Treatment identified such violations committed at Guantanamo Bay12.
The Rapporteur further reported that UN Convention Against Torture enumerates torture as
crime committed by the State officials and intention is an important condition that must be
present in torture. Hence, the techniques of interrogations used at Bay together with other
ways used to extract confessions from the detainees13 can be regarded as torture as per this
definition particularly, water boarding. The tactics of interrogations that include torture or ill
treatment comprises of sensory deprivation, stress positions, prolonged isolations, using 24
hour interrogations, stripping, using phobias of the detainees for inducing stress and forcible
shaving. In the same way, the psychological techniques used on the detainees left no physical
trace but still they can be regarded as mental harm as per torture definition in UN Special
Rapporteur.
Detention can be treated as military necessity as well as security as it stops the enemy to
attack the nation once again. Thus the position of United States government is that the United
States is allowed by the law of war to hold the enemies without any formal charges or
without any access to counsel regarding the hostilities detention. The United States even
12 Edwards, George. "Guantanamo Bay Fair Trial Manual for US Military Commissions: An Independent &
Objective Guidefor Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims
and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observers and
Other Military Commission Stakeholders." (2015).
13 O’Nions, Helen. "Azadeh Dastyari, United States Migrant Interdiction and the Detention of Refugees in
Guantánamo Bay." (2016): 601-606.

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failed to classify the detainees of Guantanamo as prisoners of war. By regarding the enemies
as enemy combatants, the US has made an attempt to justify its position that the prisoners
can be held for an indefinite period. However, it is considered by UN that detention of
Guantanamo detainees for an indefinite period without being charged or without any access
to counsel for the period of War on Terror as a retreat from established principles of laws of
human rights. Further, it noted the differences of attitude towards the detainees who are
captured in an armed conflict and those who are captured under situations that do not
contribute to armed conflict14. UN as contrary to United States decided that the War on
Terror15 shall not include armed conflict as per the international humanitarian law. Hence, the
human rights policy followed by the United States is contrary to the duties as per the
international law.
The serious, harmful and prolonged mental and health problems that are found in
detainees because of being held for an indefinite period without knowing if or whether they
will be set free may amount to degrading, cruel some and inhuman treatment. A study
conducted in 2008 that made evaluations on the effects that detention had on the prior
detainees from Guantanamo and Abu Ghraib stated that uncertainty and indefiniteness are the
most common stressful factors on the detainees regarding when they will be released or
whether they will be released at all without being charged for any offence ever.
The latest violation of human rights found at Guantanamo was forcefully feeding the
competent detainees that were protesting in a hunger strike. Forced feeding can amount to
violation of absolute prohibiting of torture as well as inhuman, degrading and cruel treatment
as laid down in ICCPR. In addition to this, 1991 Declaration made by the World Medical
Association enumerates that feeding forcefully can never be accepted ethically. It is a type of
14 Solis, Gary D. The law of armed conflict: international humanitarian law in war. Cambridge University
Press, 2016.
15 Paust, Jordan J. "The ‘war’on terror and international law." Research Handbook on the Politics of
International Law. Edward Elgar Publishing, 2017.

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degrading and inhuman behaviour. In addition to these, several other national as well as
international medical and humanitarian associations have also disregarded feeding the
detainees at Guantanamo in a forceful manner.
The Supreme Court at US is found to be more eager to condemn violation of human
rights and torture at Bay when compared to Executive wing of the State. For example, in the
case of Rasul v. Bush16, it was ruled by the court that federal courts possess jurisdiction on
the detainees at Bay and thus detainees can file petitions in the court to seek habeus corpus,
thereby challenging their detention. In the similar manner, in the decision given in the case of
Hamdi v. Rumsfeld17, it was stated by the court that any US citizen detained at Guantanamo
and who had been captured in the battlefield possess the constitutional right of a fair trial to
confront his status as the enemy combatant. In another case of Hamdan v. Rumsfeld18, the
Court held that Article 3 which is common to four Geneva Conventions is applicable to the
detainees at Guantanamo.
In spite of the fact that Supreme Court supported human rights openly, Congress passed
in the year of 2006 the Military Commissions Act (MCA)19 while considering the decision
given in Hamdan v. Rumsfeld. The MCA stated that the federal courts do not have the
authority to hear the petition of habeus corpus cases instituted by the detainees at
Guantanamo or on their behalf. Further, the Act also redefined torture as well as other
Common Article 3 breaches and used new definitions to cover up the period retroactively of
the passing of the War Crimes Act20. But, the Court made an attempt to strike back in the
case of Boumediene v. Bush21, stating that the detainees at Guantanamo are entitled to seek
the relief of habeus corpus as per the U.S Constitution.
16 Rasul v. Bush, 542 U.S. 466 (2004).
17 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2006)
18 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
19 The Military Commissions Act, 2006.
20 The War Crimes Act 1996.
21 Boumediene v. Bush, 553 U.S. 723 (2008).

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The Administration system under President Obama had admitted that though human
rights of the detainees have been violated grossly in the past, such violations no longer exist
there. But, their detention for indefinite period, the new issue of hunger strike and the failure
of the Administration to close the facility and failure to hold the violators accountable or the
failure to provide compensation to those who human rights have been already violated are
very serious and critical issues that are required to be addressed soon.
International Community’s attempt of enforcing Human Rights norms at the bay of
Guantanamo:
The Guantanamo violations provoked the UN official’s unsuccessful investigation22. At the
Special Rapporteurs 12th annual meeting the issuance of a statement was made in relation to
the earlier request of the Special Rapporteurs for visiting Guantanamo in order to investigate
the alleged violations of human rights. As per the statement, no invitation has been made by
the U.S. Government to the Human Rights Commission for visiting the detained, tried or
arrested on alleged terrorism grounds or any other violations occurred in Afghanistan, Iraq or
in the naval base of Guantanamo. No definite answers were received by the Human Rights
Commission even after requesting repeatedly and thus, concluded that there was no
willingness of cooperation by the United States with the groups of UN human rights, relating
to the treatment process of detainees and the other violations of human rights.
The UN Human Rights Commission made attempt of investigating the human rights
violations at Guantanamo as well as forcing the United States in complying with the
obligations. On 16th February, 2006, the UN Human Rights Commission has mandated that a
report is to be issued by five independent experts of human rights on the United States for
closing the detention center at Guantanamo and for expeditiously bringing all detainees of
22 www.un.org, 'UN EXPERTS ADDRESS CONCERNS REGARDING GUANTÁNAMO BAY DETAINEES
| Meetings Coverage And Press Releases' (Un.org, 2019) <https://www.un.org/press/en/2005/hr4860.doc.htm>
accessed 9 July 2019.

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Guantanamo Bay to trail by complying with the articles 9, paragraph 3, and 14 of ICCPR, or
for the releasing of them without any further delay23. It was reaffirmed by the report that the
United States failed in notifying any ratified treaty’s official derogation to the UN as there
was no armed conflict in the war against the terror24. It was also expressed in the report with
great distress to the efforts of the US Government in reforming and redefining the word
“torture” and was concluded that even after such efforts, the condition of detention amounts
to treatment of inhuman nature. In addition, the Department of Defence techniques violated
the Article 7 of the ICCPR. Several recommendations were also made in the report like the
detainees’ expeditious trails, detainees’ ability of complaining against the treatment,
investigation of alleged torture and violation by any independent party.
After the attack of September 11, the importance of terrorism fighting has been
acknowledged by the UN Security Council and also the General Assembly, however, calls
were made to all the States for ensuring the compliance with the international law obligations
and particularly the international human rights law, while combatting terrorism25. In 2001,
Resolution 1373 was adopted by the Security Council, requiring procedural, legislative,
economic and other measures to be taken by all States for preventing, prohibiting and
criminalizing terrorism activities. However, the human rights violation enforcement power of
the permanent members of the UN is limited as all the permanent members of the UN have
veto power.
The IACHR is considered as the autonomous body of the Organization of American
States (OAS), which has its powers derived from the Charter of OAS and the American
Convention on Human Rights. Arguably the IACHR is an international organization that is
23 Shelton Dinah, "International Human Rights Law: Principled, Double, or Absent Standards." (2007) Law &
Ineq. 25, 467.
24 Pearlman Samantha, "Human Rights Violations at Guantánamo Bay: How the United States Has Avoided
Enforcement of International Norms." (2014) Seattle UL Rev. 38, 1109.
25 Shelton Dinah, "International Human Rights Law: Principled, Double, or Absent Standards." (2007) Law &
Ineq. 25, 467.

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most proactive in the pursuance of the human rights norms enforcement at Guantanamo.
Deep concern was expressed by the organization towards the detainees’ conditions26. On 12th
March, 2002, after two months of holding of the detainees by the United States at the
Guantanamo, precautionary measures were implemented by the IACHR for the detainees and
the government of U.S. was asked for adopting urgent necessary measures for the
determination of the legal status of the Guantanamo detainees’ by a competent court.
Thus, for the determination of the Guantanamo detainees’ legal status and for
affording relevant legal protection to the detainees the precautionary measures were
necessary. However, it was claimed by the government of U.S. that the IACHR have no
appropriate jurisdiction for adopting the precautionary measures. In addition, no subsequent
information regarding the demonstration of U.S. complying with the precautionary measures
was provided to the IACHR by the government of U.S. On 28th October, 2005, expansion of
these precautionary measures were made when the U.S. was asked by the IACHR for
conducting thorough and impartial investigation of all the instances of the torture, treatment
of inhuman, cruel and degrading nature and for prosecuting and punishing those responsible,
of which the U.S. failed in responding again27. Further a Resolution No. 2/06 was passed by
the IACHR on 28th July, 2006, in which arguments were made for the closing of the detention
facility of Guantanamo by the U.S. without any delay, transferring of the detainees
complying with the international humanitarian law and international human rights law, and
taking all necessary measures of ensuring the detainees judicial process of transparent and
fair nature before an impartial, independent and competent decision maker28. In 2007, request
of visiting Guantanamo was also made by the IACHR for observing the detainees’ condition.
26 Rodríguez-Pinzón, Diego. "Precautionary Measures of the Inter-American Commission on Human Rights:
Legal Status and Importance." (2013) Human Rights Brief 20.2, 3.
27 id
28 id