Guantánamo Bay: Harbouring Terrors?

Hallway with a window in a prison

The author of this blog is Ritika Sharma. She is the Founder of the blog, HUMAN.DROITS, and is also an LL.M. Graduate from the Geneva Academy of International Humanitarian Law and Human Rights. She can be reached at ritika4523@gmail.com. 

The majority of us must have heard about Guantánamo Prison and how the US breaches its obligations under the Third Geneva Convention by detaining the 9/11 terrorists. The prison is located in the naval base, Guantánamo Bay, Cuba, US. 

I wanted to research comprehensively into the history and background of this prison's setting up and the inmates' conditions therein. Therefore, in this blog post, I will be delving deeper into the origin, and theory behind the prison's establishment and the humane/inhumane conditions of Guantánamo Bay.

Motive: Punishing the 'terrorists'

The prison comprised 780 Muslim men, out of which now 30 are still in detention. Guantánamo Prison was formed to detain the captured terrorists in the United States. On the morning of September 11, 2001, the US witnessed the gravest terrorist attacks when flights AA11 and UA175 deliberately collided with the  Twin Towers in New York, and took the lives of about 2996 innocent people.

After this attack, the Americans were enraged and they commenced a war against the al-Qaeda and Taliban, declaring rewards for anyone who captures or murders them. Consequently, the security forces in several countries started detaining them and handing them over to the US military. Thus, several Muslim and Afghan men were forcibly disappeared and brought to secret sites for detention and torture. Guantánamo Bay is one such site. It is also quite confirmed by many visitors to the prison that the majority of men had no links whatsoever with the 9/11 attacks, but still they faced unbearable physical and psychological trauma in these detention centres. Let's discuss the condition of the prisoners and the unavailability of basic rights for these inmates!

Do they have even basic human rights?

One of the former detainees when reached the US after being captured told, “When it was my turn to be taken out of the plane, I could just see [some of my surroundings] from the corner of the goggles I was wearing. When I saw the American flag, I thought, ‘We’re in America now. They’re going to treat me well here." (Source) But this never happened!

The prisoners were given orange clothes and were shackled. Public nudity is considered impure in Quran. Before the detainees were brought to the prison, they were searched and stripped naked in front of everyone. They had to take a bath or go to the toilet in front of fellow inmates and the guards. This brutally violated their privacy rights and was equal to mental torture for them. Moazzam Begg, one of the detainees explained why he and his fellow detainees found public nudity, especially humiliating: “These were men who would never have appeared naked in front of anyone, except their wives; who had never removed their facial hair, except to clip their moustache or beard; who never used the vulgarity, nor were likely to have had it used against them. I felt that everything I held sacred was being violated, and they must have felt the same".

Similarly, a lot of incidents were reported by the former detainees in which they were kept in shackles all the time, were not allowed to perform their religious practices, or were harassed and tortured in different ways during their time at the prison. This mental agony often resulted in suicides, or hunger strikes/protests by the inmates. 

If the detainees defy the order of the guards, they were also put in solitary confinement for 20-30 days as a punishment. These rooms of confinement used to be very cold and consisted of one metal bed. As reported by the former detainees, they were given blankets at night for a few hours which were then taken away from them (usually at 3 AM). (Source). Additionally, the detainees were subjected to sleep deprivation, extreme cold environments, sexual and physical violence, mental harassment, etc.

Recently, a technical visit to this torturous prison was made by Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism and although she noticed some progress in the living conditions and fulfilment of basic needs of the current detainees, a lot is yet required to be done for them. According to the report dated 14.06.2023, the following were examined:

• The inmates are deprived of basic humane treatment and rights in all detention practices in the centre.
• Not using their personal names for 20 years undermined their self-worth and dignity.
• The instruments for restraints in case of transportation of the detainees to family or lawyer or doctor visits, etc. are degrading.
• The measures such as 'forced cell extractions' and solitary confinements are still in practice. 
• The training of the prison guards does not take into account the human rights and humanitarian principles in the treatment of the detainees. 
• The medical chain lacks clinical independence, making the medical facilities inadequate for the inmates.
• There is arbitrariness in providing the detainees with counsel support and other essentials. 

The Special Rapporteur highlighted that the detainees have faced dreadful instances of human rights violations even during the process of transfer and resettlement once released. It was noted in the report, "Since the opening of the Guantánamo Bay detention facility, 741 men have been released (approximately 150 have been resettled to 29 countries, with the remaining repatriated), with 30 men having since died. During the course of the SR’s technical visit, four men were repatriated or resettled. Sixteen men remaining at Guantánamo are cleared for transfer, and their timely repatriation and/or resettlement is urgent". A lot of these detainees have faced a lack of support in the countries they are transferred, thereby making them difficult to lead a normal life once again. 

The report also states, "In every meeting, she held with a detainee or former detainee, the Special Rapporteur was told with great regret that she had arrived too late". This highlights the misery of the detainees and their helplessness in staying within the four walls full of terror.

It is appalling how the US Government authorised and justified this cruel and barbarous treatment to not only the 'terrorists' but also hundreds of innocent detainees. 

The Third Geneva Convention

As the detainees were brought to the US because of the war against the al-Qaeda and Taliban, the detainees should have had the rights provided by the Third Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949. 

The US denied the applicability of the Third Geneva Convention to the detainees who were Taliban POWs in Afghanistan as they were 'unlawful combatants' and thus, do not come within the scope of Article 4 of the Convention. 

Secondly, the al-Qaeda detainees were also not considered to be within the parameters of the Convention as the US claimed that al-Qaeda is not a High Contracting Party and thus the requirement of Article 2 is not fulfilled. Article 2 of the Geneva Convention reads, "In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them". 

This take of the US was clearly in conflict with the International Humanitarian Law. Also, the severe lacerations of the human rights of those captured violated the general principle embodied in all four Geneva Conventions which says, "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no ‘intermediate status', nobody in enemy hands can be outside the law". 

Guantánamo Bay: An application of the retributive/deterrent theory of punishment

While the world in the form of international and national organisations calls for a humanitarian outlook towards every crime for both the victim and the perpetrator, on what humanitarian scale can we measure the inhumane methods and conditions adopted by the Guantánamo Prison for so long. It represents the decades of torture and violence.

It seems that the "Eye for an Eye" and "Tooth for a Tooth" principles are in domination, ignoring all the work of international organisations and neglecting all human rights conventions (such as UDHR, ICCPR, and European Convention of Human Rights apart from the Geneva Conventions). The murders of several Afghans point towards the adoption of the retributive theory of punishment and the capturing and torturing of about 780 prisoners (which comprise both terrorists and innocents) reflect that the US is espousing the deterrence theory of punishment. 

The former US Presidents said- 'We will close Guantánamo' 

Knowing quite clearly that Guantánamo Prison violates human rights and makes the US bad in the eyes of the international community, Former US President Barrack Obama, during his leadership, declared that it will be closed. Similarly, in the year 2006, former President George W. Bush talked about releasing all the Guantánamo detainees. Although several inmates have been released after decades of detention, many are still confined within these 'terror' walls. 

Final remarks

Ms Ni Aolain says- “There is no statute for limitations on torture. Those who perpetrated it, engaged in it, concealed it … remain liable for the entirety of their lives” (The New York Times)

The scars have been inflicted already, but now the least the US government and other countries involved (i.e. the ones receiving the released detainees from Guantánamo) can do is to aid the prisoners to lead a normal life by engaging them in rehabilitation programmes and rendering psychological and financial support.