Ms Kate Murphy
Kate Murphy is an Irish PhD researcher at the Programme for Studies on Human Rights in Context (Ghent University) as part of a large-scale ERC-funded project ‘IMPACTUM’: Assessing the IMPACT of Urgent Measures in protecting at-risk detainees in Latin America.’ Her research focuses on persons deprived of liberty in Central America.
Introduction
"Wars are poor chisels for carving out peaceful tomorrows"
Rev. Dr. Martin Luther King Jr
This contribution discusses the main takeaways from the recent event on the ‘Closure of Guantanamo’ held at the European Parliament on the 28th of September 2023. Moreover, some of the biggest challenges going forward in the long overdue move to close the facility are outlined.
With the 22nd anniversary of the opening of Guantanamo fast approaching, the event sought to send a message to EU Member States that they can play a role and help in the resettlement of the men who are still in Guantanamo despite being approved for release. Moreover, the event stressed the need for accountability, justice and compensation to those who were arbitrarily detained and tortured for years.
The speakers at the event included: Mansoor Adayafi, Lakhdar Boumediene and Moazzam Begg (former Guantanamo detainees) James Yee (Guantanamo’s former Muslim Chaplin), Fionnula Ní Aoláin (the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism), Alka Pradhan (US Military Commissions Defense Organization), Beth Jacob (Human Rights Attorney), Valerie Lucznikowska (September Eleventh Families for Peaceful Tomorrows) and Andy Worthington (Journalist & Activist) along with the two Members of the European Parliament Responsible for the event, Clare Daly and Mick Wallace (The Left group in the European Parliament).
What is Guantanamo Bay Detention Facility?
Guantanamo Bay (GTMO) is a detention center at the U.S. Naval Base in Guantanamo Bay, Cuba. The facility was set up in 2002 to detain non-US Muslim men captured in the context of the ‘war on terror.’ It is located off domestic US territory to ‘deprive federal courts of jurisdiction over detainees’ claims.’ It is said that 779 men were detained at GTMO, 741 of whom have been released to over 61 different countries. The lawyers at the event warned that these are approximate numbers as accurate information from the site is often difficult to obtain, even for those working on the case. However, one number which has been confirmed is the 9 men who died in custody, the reasons for which remain unknown as no investigation has been conducted.
93% of those held at GTMO were not captured by US forces. Instead, the majority were sold or turned over for bounties of between $3.000 and $5.000. Most of the men who were captured were in their late teens or early twenties. None of them were charged or convicted but they were imprisoned anyway. They were completely isolated from the world and their families. The only people they could meet from the outside were their lawyers.
GTMO has been open for over two decades. Since 2002, 732 men have been sent home or to third countries via transfer agreements. Today, 30 men remain, mainly resulting from the inability of the US to find appropriate countries to transfer them. Of the 30, 16 are held in indefinite law-of-war detention but eligible for transfer, 3 are held in indefinite law-of-war detention but are not eligible for transfer and 10 have been charged in the military commission process and are awaiting ‘trial’. Eligible for transfer means that these men have been evaluated as not posing any threat to the United States and can be released. Nevertheless, they remain in detention, some for over 10 years since they have been cleared, the reasons for which will be explained below. The military commissions were created to try certain non-United States Citizens in the context of the war on terror. These commissions were established with very little oversight. In 2006, the US Supreme Court ruled that these Commissions are illegal under both US military procedure and the Geneva Conventions.
It is now unequivocally accepted under international law that the continued and indefinite detention of individuals at Guantanamo without the right to due process is arbitrary and contravenes numerous U.S human rights obligations under the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the American Declaration of the Rights and Duties of Man including: the right to a fair trial (article 14 ICCPR), the prohibition against arbitrary detention (article 9(1) ICCPR) the principle of non-discrimination (article 2 ICCPR), the presumption of innocence (article XXVI American Declaration), the prohibition against arbitrary interference with family life (article 17 ICCPR), the right to life (article 6 ICCPR) and the prohibition against cruel, inhuman and degrading treatment or punishment (article 7 ICCPR, article 1 UNCAT), the duty of to prevent acts ill-treatment committed by public authorities (article 16 UNCAT) and the duty to investigate alleged acts of torture (article 12 UNCAT). Moreover, the US created a category of ‘enemy combatants’ to be designated to those detained in Guantanamo in order to avoid the application of the Geneva Conventions (which seek to limit the harm caused in war) and to hold people without charges and essentially eradicate the rights protected under international humanitarian law. The presumption of innocence, rule of law, habeas corpus and basic fundamental rights do not exist in Guantanamo and never have.
What Issues Remain?
Broadly speaking, three main issues were highlighted by virtually all speakers. Firstly, echoing the calls of human rights bodies, the speakers emphasized that Guantanamo must be shut down due to its inhuman, illegal nature. Secondly, issues pertaining to the resettlement of the 30 men who remain in detention were highlighted as another crucial topic. Lastly, adequate treatment, including the provision of rehabilitative services to those already resettled was a concern shared among the speakers.
Torture and Other Cruel, Inhuman & Degrading Treatment: Closing GTMO
The panel members spoke about the brutal torture, inhumane and degrading treatment experienced at Guantanamo. Former US Army Muslim chaplain at Guantanamo – James Yee – recounted the abuse of prisoners through religious persecution that he witnessed while employed at the facility. He observed the frequent desecration of the Koran, sexual humiliation by female interrogators and mock baptisms during interrogations. Forced shaving of Muslim beards, forbidding the men to wash before praying and disruptions by guards during prayer time were commonplace at the facility. Alka Pradhan, lawyer of 46-year-old Ammar al Baluchi (still detained at GTMO) shared some of the torture he experienced, including his subjection to walling: having his head banged against a wall by U.S. agents, up to two hours at a time. Having no known prior medical or psychological issues before entering GTMO, Mr. al Baluchi now has severe permanent brain damage, multiple traumatic brain injuries, chronic pain, sleep disturbances, double-vision and PTSD.
Ms Pradhan warned that the reports of torture made available to the public and the detainees' legal teams are likely to only contain a fraction of the torture committed. This torture was carried out under the pretext of the war on terror but Valeria Lucznikowska, who lost her nephew Adam Arias in the 9/11 attacks, reminded the Parliament that the pain the families of the victims face “can never be remedied by inflicting pain on others.” She expressed deep concern at the fact that the US is torturing people in her name. In a similar vein, UN Special Rapporteur Fionnula Ní Aoláin pointed out that the use of torture at Guantanamo not only affects the detainees but also constitutes a huge betrayal of the rights of 9/11 victims, taking away any possibility for their right to a genuine trial.
The ill-treatment is still ongoing, exacerbated by a medical crisis at the facility. Indeed, on her visit to GTMO, the Special Rapporteur noticed that the guards are not equipped to manage an ageing and ill-detained population; a fact which adds to the danger and arbitrariness of their imprisonment. Moreover, she expressed concern about the lack of medical independence at the facility with a clear lack of trust between the detainees and personnel largely stemming from prior acts of torture where medical staff were involved. The medical professionals at the facility do not have access to prior medical histories of those detained and are prohibited from asking questions about the past, effectively blocking any effective treatment in the present. Ms Ní Aoláin highlighted that the US’s refusal to facilitate independent care, including through Mixed Medical Commissions, was highly concerning for international legal standards.
On the provision of health at Guantanamo, the Rapporteur concluded that the present conditions constitute a violation of the right to available, adequate and acceptable healthcare and that the cumulative effects of all the deficiencies in this regard amount to, at minimum, cruel, inhuman and degrading treatment under international law. Moreover, the lack of rehabilitation offered directly violates US obligations under the UNCAT.
Resettling Remaining Detainees
On the night Mansoor Adayafi left Guantanamo, the brothers left behind told him “don’t forget us here.” Far from it, Mansoor has published a book (Don’t Forget Us Here: Lost and Found at Guantanamo) about his experience in GTMO and continues to be an advocate for accountability, justice and the closure of the facility.
On entering into office, President Biden said it was a priority to resettle those eligible for transfer. Eligible for transfer means that the US government has decided there is no longer any reason or need to keep them in prison. 3 men were unanimously cleared in this way in 2010 and the other 13 were cleared between 2019 and 2022. Lawyer Beth Jacob recalled the conclusion of a US report clearing one man three years ago which found: “there is no information indicating that the detainee engaged in activities against the United States prior to detention.” (quote from the event) He remains in Guantanamo today along with 15 others similarly cleared. They remain in prison due to the difficulties in finding appropriate countries for resettlement. The US National Defense Authorization Act prohibits former Guantanamo detainees from setting foot on US territory for whatever reason, including resettlement. Not only that, but the US have designated certain countries as unacceptable for transfer stopping many men from returning to their homes. The criteria for a country to be deemed acceptable for transfer include: not being designated (by the US) as a state sponsor of terrorism, being able to maintain effective control over all detention facilities in the country and being willing to share information with the US about the released individuals. A major issue preventing the effectuation of this transfer process is that these men have no access to legal recourse and cannot go before a judge to demand enforcement because the decisions are of a purely administrative nature.
This issue of resettlement was one of the primary reasons for hosting the event at the Parliament. Indeed, investigative journalist Andy Worthington – one of the main drivers behind the event – reminded the room that the reason for the event was to remind EU parliamentarians that a “terrible crime scene is still open in Guantanamo and that they can help with it.”
Provision of Adequate Care to Those Released
Issues pertaining to those already settled were another huge topic frequently mentioned at the event. Once resettled, the vast majority of the men continue to experience human rights violations. Former Guantanamo detainee and outreach director of the independent grassroots organization CAGE, Moazzam Begg, spoke of the impossibility to “live a meaningful life after you’ve been called a terrorist by the most powerful nation on earth, with the collusion of your own governments.” Similarly, former detainee Lakhdar Boumedienne told attendees that those who leave Guantanamo “cannot live a normal life like everyone else […] they have problems opening a bank account, problems travelling.”
The Special Rapporteur noted that the transfer process itself is inhuman and degrading, with people leaving the facility the same way they entered: in shackles and blindfolded. Once resettled, there is a lack of adequate health, welfare, or employment schemes for the former detainees. International legal obligations (also of a jus cogens nature) before, during and after the transfer of detainees are applicable to the US, particularly in relation to the principle of non-refoulement. The Rapporteur stressed that these obligations become even more specific and relevant in cases where the transferred individual has been tortured by the transferring State. Unfortunately, evidence of maltreatment and lack of support in certain countries of resettlement, calls US adherence to these obligations into question.
The diplomatic assurances sought by the US before the transfer remain very weak in relation to ensuring the adequate provision of economic, social, health, familial and rehabilitation rights. Indeed, many men find themselves incredibly lonely, and extremely ill-equipped to manage their medical and psychological problems, with constant restrictions on their freedom of movement and no meaningful access to their families. In some countries of resettlement such as Senegal, the UAE and Libya, men have been reimprisoned, extradited to other unsafe countries, re-tortured or unable to access any healthcare whatsoever to treat the profound damage from their years of detention. In some cases, lack of access to adequate care has resulted in the detainees dying shortly after release. Even in countries where appropriate medical care can be accessed such as Germany, France or Britain, the medical files of the men do not travel with them, hindering the capacity to be fully treated.
What Does Closing Guantanamo Mean?
The challenges ahead for Guantanamo were shared by all the speakers at the event. It is clear that Guantanamo must be closed. Until then, the UN Special Rapporteur emphasized that the US government must uphold its ongoing obligations to make sure the current detention standards meet the requirements under international law. Resettlement of those cleared for release is essential, these men need to be released to a country where they can feel safe, make a living and be free from arbitrary interference. For those already resettled, the right to full repair must be granted. This includes ensuring the provision of adequate housing, education, social and health care facilities in line with international legal obligations to which the US is bound.
Guantanamo Bay was created by the United States but it is a problem for the world. This visit called on the European Union to step up and play its part in supporting the US to get out of the mess they created. Respect for human dignity and human rights are core values upon which the EU was founded, by staying silent in the face of such injustice, we too become responsible.
Closing Guantanamo does not mean just shutting down the premise, resettling the men and moving on. Closing Guantanamo means reparation, compensation and accountability. It means justice and guarantees of non-repetition, ensuring the impossibility of more Guantanamos. As the Special Rapporteur concluded “there is no statute of limitations for torture and the people who ordered, committed, supported, acquiesced in torture, remain liable for the rest of their lives [….] without accountability, there is no moving forward on Guantanamo.” Last week’s event at the European Parliament was a painful but much-needed reminder that the world cannot forget about Guantanamo.
STAY TUNED for IMPACTUM’s Interview (IMPACTUM in CONTEXT PODCAST) with UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism Fionnula Ní Aoláin and with Mansoor Adayafi and his lawyer Beth Jacob.
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