The Human Rights Issue of Guantanamo Bay

Human rights are those rights that all persons inherently possess. These rights are protected by various legal principals such as the rule of law and ensure the dignity of all people. Various organisations such as the United Nations attempt to ensure that all nations adhere to human rights laws. However, human rights are being violated by countries all around the world, even by countries such as the United States who have the national strategy - “America must stand firmly for the non – negotiable demands of human dignity” . The United States have been breaching international covenants and conventions on human rights with their terrorist detention camp at Guantanamo Bay. The United States, however, “acts according to the laws it defines for itself” . It is entitled to do so as it is a sovereign state.

Guantanamo Bay is an American Navel base used to permanently incapacitate approximately 660 detainees from 40 nations, including children. Because the base is located on Cuban territory the prisoners are not protected by the American constitution or judiciary “it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values” . These prisoners are held at the detention center in “legal limbo, with no access to lawyers or families” . The prisoners are kept isolated for 24 hours a day, little outdoor exercise time and no interaction with other prisoners. The inmates are interrogated for hours at a time and it is commonly speculated subject to torture. The International Committee of the Red Cross (ICRC) is the only non – government organisation allowed access to the prisoners. The ICRC is worried about the psychological impact that the prison is inflicting on inmates. A photograph released by the Pentagon shows inmates kneeling before soldiers, hands and ankles cuffed with masks completely covering their faces. The photograph has become an “icon of unacceptable US exceptionalism” . Sayed Abbasin, once an inmate of the Guantanamo bay detention center described the experience “it was the act of an animal to treat a human being like that” .

The United States government authorised military commissions to hand down the death penalty for detainees of Guantanamo Bay. Against the verdicts the prisoners have no right to appeal, which is a requirement of the International Covenant on Civil and Political Rights (ICCPR). The defendant has no say in any legal matters, even to who defends him in court. The commissions are also allowing a lower standard of proof as to allow for evidence obtained through coercion to be admissible. These commissions themselves violate the principles of natural justice and the separation of the judiciary, all of which contradict the rule of law. The United States government cannot create unfair commissions administered by the executive, with the power to hand down death sentences to suit their current requirements. Lord Steyn, a leading judge from the United Kingdom has stated that these commissions would be a “stain on United States Justice” .

The situation at Guantanamo Bay directly violates various international treaties and covenants including the Geneva Convention and the ICCPR. On January 11 2002 Secretary of Defense Donald Rumsfeld outlined the stance the United States would be taking in regards to the terrorists detained at Guantanamo Bay. The United States have labeled the prisoners at Guantanamo Bay “unlawful combatants” and that therefore the Geneva Convention does not protect these individuals. Jamie Fellner director of Human Rights Watch states that as America is party to the Geneva Convention they are required to treat all combatants equally and humanely. The Geneva Convention is also violated simply through the authorisation of these military commissions – under the convention all captured fighters regardless “if they are members of an adversary states armed forces or are part of an identifiable militia group” are to be tried under the same laws and courts as the detaining country’s armed forces. Therefore these military commissions not only violate the Geneva Convention but also the rule of law in the fact that they were architected with the purpose of dealing with inmates at Guantanamo Bay, and have never applied to American soldiers.

Human rights violations are allowed to occur because the international community is incapable of punishing or enforcing violations. This problem with international law is predominantly due to state sovereignty. A sovereign state is defined in Butterworths Concise Australian Legal Dictionary as “a state which possesses independent competence internationally, supreme authority over all affairs and components of its territory and has acquired the attributes of statehood under the Montevideo Convention of the Rights and Duties of States (1933)” . No other nation or organisation has the authority to interfere in the internal affairs of other nations. Therefore, the United States has the legal right to act according to the laws it defines for itself. The principal is ironically a fundamental principal of international law yet it allows for countries to violate human rights and international law as they please.

Anther major limitation of international law is its ineffective enforcement body, the International Court of Justice (ICJ). The ICJ is the international body responsible for deciding on matters of international disputes. However, countries cannot be compelled to recognise the jurisdiction of the ICJ. In the event that a country does accept the courts jurisdiction there are no systems or enforcement bodies that could ensure compliance with the ruling of the court. The United States have ignored the ruling of the ICJ in the past, in 1986 the United States rejected the order of the ICJ to terminate its “unlawful use of force against Nicaragua” . The ICJ is an extremely ineffective body, adding to the incompetence of international law. The reason international law faces so many problems is because countries can choose which laws they adhere to and weather or not they wish to be punished.

The Guantanamo Bay incapacitation centre outlines the inability of international law and organisations to deal with breaches of human rights. Although the United States have violated various fundamental principal of which democracy is based upon, as well as various international treaties such as the ICCPR and the Geneva Convention nothing can be done about the human rights violations imposed at Guantanamo Bay. There will be no true effective international law if countries can continue to hide behind the excuse of state sovereignty. If the effectiveness of International Law is to increase, and security threats and challenges are to be met, the commitment of national states to international law must improve The United States must remember that we have human rights not because we are American or British but because we are human.

Bibliography

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