Guantanamo Bay: Violating International Law And Human Rights

Guantanamo Bay has become a symbol of the United States' approach to the War on Terror. The detention centre is known for the human rights violations committed there, including illegal and indefinite detention, torture, inhumane conditions, unfair trials, and force-feeding of hunger-striking prisoners. The US government has argued that Guantanamo exists outside of its immediate territorial sovereignty, and therefore the detainees are not afforded significant legal protections under the Constitution. However, international human rights law dictates that an individual's rights cannot be suspended, regardless of their location. The US is formally obligated to uphold protections under the Third Geneva Convention of 1949, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT). The failure to do so at Guantanamo Bay constitutes a breach of international law.

Indefinite detention without trial

Guantanamo Bay has been the site of indefinite detention without trial since its establishment in 2002. The detention centre was set up by the US government in the wake of the 9/11 attacks, with the purpose of holding people perceived to be 'enemy combatants' in the 'war on terror'.

The indefinite detention of foreign nationals without charge was enabled by a military order from President Bush in November 2001. This order also prevented detainees from legally challenging their detention. The following month, the US Department of Justice further claimed that habeas corpus did not apply to Guantanamo Bay as it was outside of US territory.

The indefinite detention of prisoners without trial at Guantanamo Bay is a violation of the US Constitution and human rights law. It also breaches the Geneva Conventions, to which the US is a signatory.

The detention centre has been the subject of ongoing legal, political, and international scrutiny, as well as widespread criticism regarding its operations and treatment of detainees.

In 2023, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism released a report detailing 21 years of indefinite detention for 780 Muslim men and boys, and the human rights violations against them.

Despite global consensus from the international community that the facility continuously violates human rights law, 30 men remain detained at Guantanamo Bay as of 2025. Most of these men have never been charged with a crime and many have been tortured. Over half of them were cleared for release or transfer years ago and are still awaiting next steps.

The Biden administration has pledged to close the detention centre by the end of its term.

Torture and inhumane conditions

The detention center at Guantanamo Bay has become a symbol of the United States' approach to the War on Terror. It is known for the human rights violations committed there, including torture and inhumane conditions.

The US government has argued that Guantanamo exists outside its immediate territorial sovereignty, and therefore detainees are not afforded significant procedural and substantive legal protections under the Constitution. This notion of a "legal black hole" has been used to deny basic rights and protections under public international law. However, human rights law protects the rights and liberties of individuals based on their status as human beings, regardless of their location.

The International Committee of the Red Cross (ICRC), the Inter-American Commission on Human Rights, and the UN Office of the High Commissioner for Human Rights have consistently stated that the four Geneva Conventions apply to the Guantanamo prisoners, as do international human rights treaties. These prohibit torture, cruel and inhumane treatment, and indefinite detention without trial.

One example of inhumane treatment is the force-feeding of hunger-striking detainees, deemed "cruel, inhuman, and degrading" by human rights organizations, including Amnesty International and the American Medical Association. Samir Naji al Hasan Moqbel, a Yemeni prisoner, described the insertion of the force-feeding tube while tied to a chair as the worst pain he had ever felt, causing agony in his chest, throat, and stomach. The World Medical Association (WMA) has also condemned force-feeding, stating that it is a form of inhuman and degrading treatment when accompanied by threats, coercion, or physical restraint.

The Bush Administration's use of "enhanced interrogation techniques" and the adoption of procedures that permit the use of evidence obtained through torture further demonstrate the inhumane conditions at Guantanamo Bay. These actions have weakened the normative force of international law and contributed to a decline in the United States' influence as a pillar of the post-war liberal order.

The failure to uphold human rights and provide fair trials for detainees at Guantanamo Bay is a direct violation of the United States' obligations under the Third Geneva Convention, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT).

Unfair trials

Guantanamo Bay has been deemed to violate international law in several ways, including illegal and indefinite detention, torture, inhumane conditions, and unfair trials.

The United States' actions at Guantanamo Bay violate its obligations under the Third Geneva Convention, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and customary international law.

The Military Commissions at Guantanamo Bay have been criticised for their lack of progress and uncertainty regarding the laws under which they are governed. The Bush Administration was hostile towards international humanitarian law and went against previously uncontroversial rules regarding the treatment of prisoners, such as the use of torture. The Military Commissions also adopted procedures and substantive offences that were contrary to international law, such as the use of evidence obtained through torture and the prosecution of domestic crimes.

The United Nations Human Rights Committee has stated that the detentions at Guantanamo Bay are arbitrary and not in accordance with due process, as individuals have been detained indefinitely without the need to sustain evidence in court or prove criminal responsibility. This has denied detainees the right to a trial without undue delay.

The Supreme Court has held that Guantanamo detainees cannot be held indefinitely without trial and that they are entitled to constitutional habeas corpus protections. However, the Bush administration avoided this by setting up Combatant Status Review Tribunals and signing the Detainee Treatment Act (DTA), which was later deemed unconstitutional.

The International Committee of the Red Cross (ICRC), the Inter-American Commission on Human Rights, and the UN Office of the High Commissioner for Human Rights have consistently stated that the Geneva Conventions and international human rights treaties apply to the Guantanamo prisoners. These require prompt and fair trials for all prisoners before impartial tribunals.

Despite these requirements, the Bush and Obama administrations have failed to apply the relevant laws to the Guantanamo prisoners, resulting in violations of their right to a fair trial.

Force-feeding of hunger-striking detainees

The force-feeding of hunger-striking detainees at Guantanamo Bay has been a highly controversial issue, with critics arguing that it violates international law and constitutes torture. Here is a detailed discussion of the force-feeding practices and the arguments surrounding them:

Background of Force-Feeding at Guantanamo Bay:

The practice of force-feeding at Guantanamo Bay dates back to the early days of the detention facility's establishment. In 2002, there were reports of the first hunger strikes, with detainees protesting the desecration of a Quran by a guard and the prohibition on wearing turbans. In response, military officials declared that they would not allow detainees to starve themselves to death and introduced force-feeding as a measure.

Protocols and Procedures:

Over the years, the force-feeding protocols at Guantanamo Bay have evolved and, at times, faced scrutiny and criticism. Here are some key aspects of the procedures:

• Restraint Chairs: In December 2005, the use of restraint chairs, also known as "padded cells on wheels," was introduced. Detainees who refused to voluntarily drink liquid nutritional supplements were forcibly strapped into these chairs, with a nasogastric tube inserted through their nostril down to their stomach.
• Nutritional Supplements: Military officials stocked large quantities of Ensure and other liquid nutritional supplements to administer during force-feeding.
• Frequency and Volume: There have been concerns about the volume of liquid supplements administered during force-feeding sessions, with critics arguing that the practice amounts to "the water cure," a form of torture.
• Medical Ethics: The force-feeding protocols have been questioned by medical professionals and human rights groups, who argue that they deviate from standard medical practices and are designed to break the will of the detainees.

Arguments Against Force-Feeding:

Critics of the force-feeding practices at Guantanamo Bay have raised several legal, ethical, and humanitarian concerns:

• Violation of International Law: Opponents argue that force-feeding violates international law and conventions, such as the Geneva Conventions, which the US is obliged to uphold.
• Torture and Cruel Treatment: The UN Human Rights Commission and former detainees have condemned force-feeding as a form of torture. The World Medical Association's Declaration of Tokyo specifically prohibits force-feeding, stating that physicians should respect a prisoner's refusal of nourishment if they are capable of forming a rational judgment.
• Lack of Medical Justification: Critics argue that force-feeding is often done prematurely and gratuitously, without a genuine medical need, and is used as a punitive measure rather than a medical intervention.
• Humiliation and Degradation: Detainees and their attorneys have described force-feeding as a humiliating and degrading process, causing unnecessary pain and suffering.
• Violation of Religious Rights: Some detainees have claimed that the handling of their Qurans during force-feeding inspections violated their religious rights and sparked protests.

Arguments in Support of Force-Feeding:

While the US government and military officials have denied that force-feeding constitutes torture, they have argued that it is necessary to prevent detainees from starving themselves to death:

• Preserving Life: Military officials have consistently stated that force-feeding is a last resort to protect the lives of detainees and is only used when other measures, such as counselling, have failed.
• Safety and Humanity: They have defended the use of restraint chairs, claiming that they are safe, humane, and legal, aligning with Guantanamo's official motto.
• Compliance: According to Captain John Edmonson, the former Naval Base's chief medical officer, detainees typically cooperated during force-feeding, and restraints were rarely necessary.
• Comparable to US Hospitals: Medical personnel at Guantanamo Bay have compared force-feeding practices to those used in US hospitals for patients requiring feeding tubes, arguing that there is no significant difference.

Legal Challenges and Developments:

The force-feeding practices at Guantanamo Bay have been the subject of legal challenges and ongoing debates:

• Lawsuits and Appeals: Lawyers for detainees, such as Abu Wa'el Dhiab, have filed lawsuits arguing that force-feeding is abusive and violates detainees' rights. These cases have navigated a complex legal landscape, with some judges declining to rule due to legislative restrictions on judicial intervention.
• Video Evidence: In 2014, a federal judge, Gladys Kessler, ordered the release of videotapes showing Dhiab being forcibly removed from his cell and force-fed. This marked a significant development, as it provided visual evidence of the force-feeding process.
• Secrecy and Transparency: There has been a push and pull between the military and the media regarding transparency. While the military provided daily tallies of hunger strikes and force-feeding, they later adopted a policy of increased secrecy, arguing that it was necessary to prevent the detainees from attracting attention.
• Ongoing Debate: The force-feeding practices continue to be a subject of legal challenges and public debate, with critics calling for reforms and an end to what they view as abusive and inhumane treatment.

Lack of enforcement mechanisms

The international community has been unsuccessful in its attempts to enforce human rights norms at Guantanamo Bay due to a lack of enforcement mechanisms in international human rights law. While it is clear that human rights violations are occurring at the facility, there has been little success in provoking change.

The United States has avoided enforcement of international norms by arguing that Guantanamo Bay exists outside of its immediate territorial sovereignty, and therefore, detainees are not entitled to legal protections under the Constitution. This ambiguity surrounding the extraterritorial nature of Guantanamo Bay has led to the notion of a "legal black hole," where detainees can be lawfully denied basic rights and protections under public international law.

The United States' actions at Guantanamo Bay violate its obligations under the Third Geneva Convention, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and customary international law. These violations include illegal and indefinite detention, torture, inhumane conditions, and unfair trials.

The international community's failure to effectively address these human rights violations at Guantanamo Bay highlights the need for stronger enforcement mechanisms in international human rights law. Without such mechanisms, it becomes difficult to hold states accountable for their actions and ensure respect for human rights.

To address this issue, international responsibilities stemming from treaties must be utilized as instruments for enforcement. In the case of Guantanamo Bay, the United States is formally obligated to uphold individual protections under the Third Geneva Convention, the ICCPR, and the CAT. By holding the United States accountable to these commitments, there is a stronger basis for enforcing human rights norms and preventing further violations.

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