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   A legal black hole

Guantanamo: A legal black hole

GuantanamoA British appeals court has stated that the detentions contravenes fundamental principles of international law and refers to Guantanamo as a legal black-hole.

It is two years since the Guantanamo prison camp opened. Its purpose is to hold people seized in the 'war on terror' and defined by the Bush administration as 'enemy combatants' - though many appear to have been bystanders to the conflict. Images of Camp Delta's orange-suited, manacled detainees have provoked international outrage. But the real horror they face isn't physical hardship, it is the threat of infinite confinement, without trial, and without access to legal representation or to relatives.

Some 660 are still in detention at Guantanamo, including an undisclosed number of children. Only to men has has yet been charged. Several world human rights watchdogs, including Amnesty International, have appealed to Washington to either release the detainees or press charges against them.

GuantanamoFollowing the Third Geneva Convention any captured belligerent whose status is uncertain should be considered and treated as a Prisoner of War until their status is settled by a 'competent tribunal'. Defining the Guantanamo prisoners as 'enemy combatants' the US administration ignores international law. It fails to articulate a clear legal framework which it applies to the detainees and which acknowledges their human rights and the government’s obligation to respect them. The administration has instead selectively invoked those rules of war that it finds helpful in detaining and interrogating individuals — such as the authority to hold combatants without charge until the end of hostilities — while ignoring other rules that safeguard combatants — such as those that require individual determinations of their legal status.

A vaguely framed war on terror without a clear end means that the detainees could effectively be held forever. In human terms, prolonged and indefinite detention can have a devastating psychological impact on detainees. The International Committee of the Red Cross has witnessed the harmful psychological impact of the uncertainty of their open-ended internment. Indeed, thirty-four suicide attempts have been recorded at Guantanamo.

GuantanamoThe planned military commissions will violate defendants’ rights in several ways. Under the rules, the President, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner. There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system. In addition, important legal issues that arise during a trial will not be decided by an independent body, but by the same military entity that initially approved the charges against the detainee. As for the trial itself, the rules do not ensure that a suspect can see all evidence against him — leaving him in the extraordinary position of having to defend himself in the dark.

A federal appeals court in San Francisco ruled that US courts have jurisdiction to hear claims from detainees at Guantanamo, and affirmed the crucial role that courts play in preventing the executive from running roughshod over individual rights. The Court noted: Under the government’s theory, it is free to imprison [detainees] indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with … these detainees as it will, when it pleases, without any compliance with any rule of law of any kind …

Hard fought gains in international law and protections for basic human rights will be undermined along with the rights of these detainees. The US administration’s unwillingness to respect basic rights and to provide any legal process has undermined the rule of law and given a green light to other governments to justify rights violations in the name of some definition of counter-terrorism.



| Amnesty International : Guantánamo Bay: a human rights scandal | ~ | Human Rights Watch: Guantanamo | ~ | ICRC : Guantanamo Bay | ~ | World News : Guantanamo | ~ | The Guardian : People the law forgot | ~ | Washington Post : U.S. Decries Abuse but Defends Interrogations | ~ | |


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