This document describes the “legal black hole” created by the American prison camp at Guantanamo Bay and outlines some political actions that might be taken to address the problem. Nothing in this document should be taken as a comment on the legal case of any individual prisoner at Guantanamo Bay.
1. The United States has established a detention camp at its naval base at Guantanamo Bay in Cuba for prisoners captured in Afghanistan and elsewhere. It holds prisoners from many different countries, including the United Kingdom.
2. A Military Order issued by President Bush on 13 November 2001 set out the conditions by which such prisoners would be held and tried under military law. This order specifically rules out an appeal to any court, whether state, federal or international, in the United States or anywhere else in the world.
3. A challenge to this in the American courts failed with a ruling that prisoners held in Guantanamo Bay do not have the protection of American domestic law. They are not American citizens and are not (and in most cases have never been) on American soil.
4. Furthermore, US officials have argued that the prisoners in Guantanamo Bay are not prisoners of war but “unlawful combatants”. The term “unlawful combatant” was used during the second world war to describe German nationals carrying out acts of sabotage in the US while wearing civilian clothes.
5. Article 4 of the 1949 Geneva Convention relative to the Treatment of Prisoners of War specifies that it applies to members of militias and other volunteer corps in the following case:
6. (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognisable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.
7. It also applies to civilians in certain cases:
8. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
9. It may well be that many Al Qaeda and Taliban prisoners do not fit this description. There are also reported to be other prisoners at Guantanamo Bay who have been apprehended in countries other than Afghanistan – perhaps some of those detained in Iraq might find themselves transported there – and in those cases, too, it is possible that PoW status will not apply. (This description should not be taken to say that it does not apply in every case: in some individual cases, it might.)
10. It appears, therefore, that the United States can capture individuals and imprison them in Cuba apparently beyond the reach of both United States domestic law and the Geneva Convention. The Master of the Rolls, Lord Phillips, has described this situation as “a legal black hole”.
Federal Union’s view of the issue
11. Federal Union argues that democracy and the rule of law should apply to states as well as within them. A hole in the law has arisen because of an apparent gap between different national sovereignties. Fundamentally, this is a political problem and not a legal one. It needs to be addressed accordingly.
12. In 1988, the United Nations General Assembly adopted unanimously a resolution outlining the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Even if the Geneva Convention on prisoners of war is not observed at Guantanamo Bay, Federal Union believes that this UN resolution should be. This matters because of the suggestion that some of the provisions of this resolution – for example, the right of access to legal counsel – have not been applied (e.g. letter published in The Guardian on 26 March 2003). (1)
The British government’s response
13. The Foreign Office reports that it has been granted access to the British detainees in Guantanamo Bay to check on their welfare. The United States has given an assurance that it will treat the detainees humanely and in accordance with the principles of the Geneva Conventions. (2)
14. It argues that the question of the status of the detainees at Guantanamo Bay under international humanitarian law is “complex and has to be considered in the light of the facts relating to each individual detainee”. (2) Whatever their status, it has made clear to the US authorities that the detainees are entitled to humane treatment and, if prosecuted, a fair trial.
Federal Union’s reply
15. Federal Union is not satisfied with this. British consular activity will apply only to British nationals held in Guantanamo Bay. The human rights of the nationals of other countries who are held there also need protection. A policy of bilateral consular activity does not help them; an alternative policy of expecting equal treatment for all prisoners under the terms of the UN statement would.
16. Secondly, while the legal status of the detainees may be complex, they are nevertheless entitled to the protection of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as a bare minimum. Perhaps they are entitled to more protection than this: they are surely not entitled to less.
17. A particular concern is the right of the detainees to consult their own lawyers. Principles 16(2), 17 and 18 of the UN statement cover this point: the US Military Order under which the Guantanamo Bay camp is run does not (it allows only for lawyers nominated by the US Department of Defense for the trials themselves). This may well be important if criminal proceedings follow.
18. Federal Union believes that this gap that has appeared in the protection of human rights can only be filled by reference to the United Nations resolution on the subject (both the UK and the US voted for it in the UN General Assembly). The protection of human rights is a global concern and cannot be addressed by individual countries around the world. In the context of the debate about the future of Europe, this is known as the principle of subsidiarity: decisions should be decentralised if possible but centralised if necessary. The case of Guantanamo Bay proves that a “decentralised” protection of human rights does not work.
(2) Letter from the Foreign Office, 24 April 2003 available at guantanamo030424