“Human rights are not worthy of the name if they do not protect the people we don’t like as well as those we do”
– Trevor Phillips
In February this year, the controversial question of the Guantanamo Bay prison camp in Cuba was sparked again when one hundred detainees began a hunger strike to protest against the reportedly inhumane conditions the prisoners are kept in, as well as the inaction of the international community to take measures against their detainment. By April, the number of participants had increased to 133. But by May, action in response to the prison camp had been taken; at least 21 of them began being force fed.
A group of senior United Nations officials had condemned the force-feeding, which the UN High Commissioner for Human Rights had described as “cruel, inhuman and degrading treatment” and “a flagrant violation of international human rights law”. The move was also condemned by Amnesty International, who, in their annual report of 2005, had described the prison camp as “the gulag of our time”- an evocative description which, unsurprisingly, provoked criticism from the US and UK governments.
But the audacity of these descriptions by the international community will not amount to actions which are any more potent than the tepid responses made to earlier criticisms of Guantanamo Bay. The prison camp has been condemned as in blatant breach of international law, human rights law and even US constitutional law. Even a close aide to former President George W. Bush admitted that torture had taken place and that the treatment the detainees received was in violation of the provisions of the Geneva Convention. It seems that a fresh bout of criticism and legal contradictions will therefore do little to add fuel to the Guantanamo debate. But how is it that the prison camp, despite an onslaught of criticism from the international community, despite its illegality and despite promises by president elect Barack Obama to close it, that the Guantanamo Bay prison camp, the “gulag of our time”, continues to operate?
There are many reasons for this, of which I will discuss two. The first is that of the role of the United States Congress. The opening of Guantanamo Bay in 2002 was sanctioned by Congress which, at the time, was controlled by Republicans, and the detainment of terror suspects abroad seemed to be conducive to the “War on Terror” initiative which characterised much of Bush’s foreign policy. However, when, following on from the 2006 midterm Congressional elections, control of Congress switched from Republican to Democrat, much of this seemed to be changing. US Congress retains the power to pass the President’s annual budget, so many Congressional Democrats attempted to insert provisions into budget bills limiting overall defence spending which, in turn, would have the effect of forcing the closure of Guantanamo Bay. However, these attempts never manifested themselves. Although President Obama pledged to close the camp as part of his 2008 election campaign, his attempts quickly soured. True, he signed an executive order commanding its closure, but when control of the House of Representatives changed hands to the Republicans in 2010, his chances weakened further. In the 2011 congressional defence spending authorisation, Congress prohibited the expenditure of monies that could result in closure, including but not limited to the purchase of any domestic facility to hold detainees transferred from Guantánamo and well as the imposition of structural oversight barriers to the transfer of individuals out of Guantánamo Bay and into any other state. So unless Obama gains widespread Congressional support for closure of the prison camp, these budget provisions will continue to be added, limiting any prospects for closure in the near future.
The second factor I will consider is the uncertainty of detainees’ fates- in other words, what would happen to the detainees were the government to succeed in closing the camp? The current 166 detainees can be separated into categories by their legal status; 86 are currently cleared for release and can be dispatched to their home countries; 46 have been designated for indefinite detention; 31 have been slated for prosecution; the remaining three are serving sentences after having been convicted in military commissions. There are issues with dealing with each of these, were the prison camp shut. Firstly, there are certain conditions to reduce reoffending for those 86 who have been cleared, and few agreements have been formed between home governments and the US government. Secondly, the prospect of having terror suspects serving indefinite detention on US soil is an undoubtedly unpopular one, with voters and with Congress members. The same applies for those that have actually been convicted. And as for those awaiting trial in military commissions, the process has proven to be remarkably slow.
It seems, therefore, that there is no immediate solution to the legal, political and not to mention ethical issues surrounding Guantanamo Bay. No suspects have been sent there since 2008, and the result is that the prison is currently in limbo. It is neither closed down, nor is it “open for business”. Its legal and political statuses are tricky to decode, and consequently, the President finds himself torn between domestic and international commitments. It remains to be seen whether Obama’s first-term promises will manifest into anything tangible within the next three years.