8C.8 Guantanamo Bay: implications and potential repercussions?

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critically in this context to stand up to the US).285 Other mechanisms,

under IHRL, enable victims of those violations to vindicate their rights

directly,286 but these ultimately depend on political will to ensure their

impact and effectiveness. Indeed, in response to a petition concerning

the Guantanamo situation, the Inter-American Commission on Human

Rights requested that the US take precautionary measures to protect the

detainees’ fundamental rights.287 While the decision spoke well of the

Commission’s willingness to grapple with the politically unenviable,

the US response was predictably dismissive, and little apparent weight

was attributed to the decision thereafter. In this respect, one of the lessons

of Guantanamo may be the importance of strengthening mechanisms

enshrined in IHRL288 and IHL289 and the international community’s

commitment to them.

It may be, however, that international law ‘enforcement’ will be given

meaningful effect only in relation to Guantanamo when responsibility

is attributed not only to the state but also to the appropriate individuals; to paraphrase the Nuremberg judgment, when the individuals who

ordered and gave effect to these violations, and not only the abstract state

entities through which they act, are held to account.290 Accountability of

individuals may arise in respect of Guantanamo Bay from allegations of

torture or inhuman treatment, wilfully depriving prisoners of war of fair

285



286



287



288

289



290



See discussion of the obligations of, and options available to, other states, below. See, e.g.,

the role of the International Court of Justice, in Chapter 5, para. 5A.1, ‘The Obligation

to Resolve International Disputes by Peaceful Means’.

The US has not ratified the ICCPR Optional Protocol, however, on which the right of individual petition to the Human Rights Committee depends. However, the Inter-American

Commission on Human Rights has jurisdiction under the American Declaration on the

Rights and Duties of Man, see below. Although there is no dedicated mechanism to

address violations of IHL, human rights bodies can and do also adjudicate issues of IHL

that impact on the protection of human rights in conflict situations. On the relationship

between IHRL and IHL, see ‘Harmony in Conflict?’, Chapter 7, para. 7A.3.4, above.

See Inter-American Commission on Human Rights, Precautionary Measures in Guantanamo Bay, above. While the potential impact was undermined by the refusal of the US

to do as requested by the Commission, it remains significant as a reassertion of the role

of international law in this context.

Many other mechanisms exist not referred to here: for human rights mechanisms, see

Chapter 7, above.

The role of the ICRC may be worthy of note as telling a more positive story on

Guantanamo: initial refusal of access was rescinded and the ICRC have monitored compliance and have taken a relatively outspoken approach which was important, given their

role in underscoring the continued application of appropriate IHL standards.

Judgment of the International Military Tribunal, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany,

Part 22 (London, 1950), p. 447.



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439



trial rights, or subjecting them to arbitrary prolonged detention.291 While

legally possible on the international level, the more conceivable prospect

is of individual accountability enforced nationally, if not in the state of

territory, in the courts of another state exercising universal jurisdiction

or passive personality jurisdiction.292 It remains to be seen whether there

will be, in the fullness of time, any meaningful individual or state accountability in respect of the Guantanamo situation.

Questions also arise as to the broader implications of the Guantanamo

situation for the legal framework and the rule of law. As at a certain point

the tolerance or acquiescence of third states may contribute to a shift in

customary law, state reactions may be relevant not only to the enforcement

of law, but to the maintenance of international standards. However, even

if the particular norms were susceptible to change,293 international opposition to – and refusal to confer legitimacy on – the Guantanamo regime

and the considerable concern expressed, as highlighted above, seriously

undermine any risk that the law will itself be directly affected in this way.

It is also doubtful to what degree Guantanamo demonstrates a compelling need for such development of legal standards. It may, of course,

highlight areas where the law could be clarified or developed, for example

to better serve the humanitarian purpose of IHL and guard against abuse

of this sort in the future.294

291



292



293

294



See Chapter 4. Wilfully depriving a prisoner of war of fair trial rights is a grave breach of

the Geneva Conventions. Arbitrary detention was not included, e.g., in the ICC Statute,

though it may amount to a crime against humanity.

See Chapter 4. On the national level, states may exercise, e.g., universal jurisdiction or

passive personality jurisdiction for those states with such bases of jurisdiction in their

domestic systems. As noted, the conferral of jurisdiction (unlike criminal responsibility)

can be ex post facto. ICC jurisdiction is unlikely as most detentions were before its entry

into force and, in any event, it would only have jurisdiction if a national of a state party to

the ICC Statute (not an American) was responsible, or the offences arose on the territory

of a state party, or a state decided to accept jurisdiction over the offences retroactively. An

ad hoc tribunal could be set up, but the Security Council route would be vetoed leaving

the Nuremberg model of several states collectively establishing a body. While this may be

legally possible, it is hardly conceivable politically, at least at this stage.

Note the resistance to change of jus cogens norms; see Introduction and Chapter 7.

ICRC has identified areas for further discussion in its ‘Challenges’ paper, among them,

‘elaboration of the precise meaning of “direct participation in hostilities”’ and the consequence thereof. A further specific suggestion for possible improvement that has been

advanced is that the competent tribunal procedure under Article 5 GC III be extended to

status determinations not only of POWs in international armed conflict, but also other

categories of detainees, or that procedure accommodate an international element to safeguard and reinforce its critical role. It would then better approximate an independent as

well as competent arbiter of these status determinations. See Gasser p. XXX.



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Most likely, however, the situation represents not a shift in the law, or a

gap in the law, but a striking violation of it, with uncertain repercussions.

One critical question is the impact of the Guantanamo experiment on the

international protection of rights, beyond the United States. Will it give

credence to the insidious notion of legal limbo – that certain persons fall

entirely outside the framework of international legal protection? Will it

contribute to the view that in practice human rights are the first casualty

of terrorism and conflict, to be discarded in security-sensitive situations?

Will other states seek to circumvent basic legal obligations by crude

manipulation of the principle of territoriality, by unilateral decisions

regarding detainees’ status or by applying the law only ‘to the extent

appropriate’?295

Evidence already exists of other states, many of whom are not new

to human rights repression, relying on the same principles as the US –

security over rights, exclusion of certain persons from the protection of

law, and military commissions to try civilians – justifying their actions

explicitly or implicitly by reference to the Guantanamo situation.296

Unsurprisingly, an additional by-product of this role for the US is that

its credibility to act as the restraining force it once was on human rights

issues is seriously undermined,297 with its condemnation of, for example,

military commissions and arbitrary detentions298 resonating between

absurd and hypocritical when juxtaposed alongside the notoriety of

Guantanamo Bay.



295



296



297



298



US policy declared in a statement of the Office of the Press Secretary, 7 February 2002:

‘The United States is treating and will continue to treat all of the individuals detained at

Guantanamo Bay humanely, and to the extent appropriate and consistent with military

necessity, in a manner consistent with the principles of the Third Geneva Convention.’

See also letter from the US President to the Speaker of the House of Representatives and

the President Pro of the Senate, 20 September 2002, note 1, above.

See, e.g., statement by President Mubarak of Egypt that resort to military commissions

‘prove[s] that we were right from the beginning in using all means, including military

tribunals’ to curb terrorism, in J. Stork, ‘The Human Rights Crisis in the Middle East in the

Aftermath of 11 September’, paper presented at the Symposium on Terrorism and Human

Rights, Cairo, 26–28 January 2002, on file with author and available at www.cihrs.org.

Guantanamo does not stand in isolation, but is the most serious of several acts of exceptionalism on human rights issues – including the establishment of an ICC, banning of

child soldiers, creation of mechanims for individual redress for torture – and in other

fields, such as environmental protection, that had already diminished the moral standing

of the US internationally.

See ‘Annual Country Reports on Human Rights Practices Released by the Bureau

of Democracy, Human Rights, and Labor of the Department of State’, available at

http://www.state.gov.



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8C.9 Conclusion

The anomalous situation in which the Guantanamo detainees are held,

without basic legal protections, is not a casualty of any ‘legal limbo’ or

‘black hole’ in international law. The Guantanamo detainees are entitled,

under international human rights and humanitarian law, to certain core

human rights protections irrespective of where they are detained, or their

nationality. While the applicability of particular provisions of humanitarian law depends upon the status of the detainees (and, in accordance with

the principle of legality, status determinations must undoubtedly be made

in a fair and effective way), the basic rights protections at issue are contained in all potentially applicable provisions of IHL. The denial of POW

status does not therefore carry the implications that some have suggested –

of rendering the captives devoid of the protection of the framework of

international law. The core rights in question remain protected under

international law irrespective of status.

The apparent denial of the specific rights to which the detainees are

entitled represents a rejection of the fundamental principle that state

action – whether military, law enforcement or both – must at all times

be governed by law and subject to the procedural fairness that is inherent

in it. While that law itself must, and does, take account of and adapt to

security concerns, it is not subordinate to such concerns. If the law is to

have any compelling effect, it cannot be open to applying it selectively or

only ‘to the extent appropriate’, as adjudged by the state itself.299

The following has recently been said of Guantanamo Bay:

At present we are not meant to know what is happening at Guantanamo

Bay. But history will not be neutered. What takes place there today in the

name of the United States will assuredly, in due course, be judged at the

bar of informed international opinion.300



The US may well be judged harshly. But it will not be judged alone.

Other states, and the international community more broadly, stand to be

judged for their determination, or their failure, to protect not only the

Guantanamo detainees but the rule of law.

The Guantanamo situation is on-going and much remains to be seen.

The nature of the judgment history renders and the long-term impact

of Guantanamo will depend on unfolding national and international

299

300



See notes 1 and 296 above.

Lord Steyn, ‘Guantanamo Bay: The Legal Black Hole’.



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reactions. Positive indicators on the national level include the US Supreme

Court’s decision on Guantanamo detainees, which begins to redeem the

reputation of US justice by reasserting the independence of the judiciary

and its role as an essential check on executive excess even – or especially – in

time of strain. The Supreme Court’s caution in the context of the parallel

decision concerning US citizen ‘enemy combatants’ detained in the US,

that ‘a state of war is not a blank check for the President’,301 demonstrates

the power of judicial independence and the critical ballast it represents

in face of exorbitant claims to executive discretion as epitomised by the

Guantanamo situation.

On the international level other states, and the international community, may stand by and watch the systematic undermining of human rights

and humanitarian law and the attack on the rule of law unfold, or, they may

rise to meet the international responsibilities that rest with them. States

which have negotiated the release of (or special deals for) their nationals

may back off, reducing the pressure on the US and leaving many without

protection, or they may turn their attention, individually or collectively,

to a more principled approach in line with respect for international law.

States from whom military and law enforcement support and cooperation is sought, including once the military tribunals are operational,

may provide such support to the US or deny it unequivocally, on the

basis of their own responsibilities in the face of egregious violations. In

this respect, early indications of resistance to cooperation on the basis of

human rights concerns are encouraging.302

If tolerated, Guantanamo may be not only a ‘stain on American justice’,303 but a stain on the rule of law, and licence to disregard human rights

protection in the name of security. If the momentum behind the condemnation of Guantanamo Bay consolidates, and is coupled with long-term

consequences for the offending state, the situation may ultimately serve

to underscore the rule of law and its relevance to all states, for the protection of all persons, at all times, including in conflict and crisis when the

safeguards it affords are most critical.

301



302

303



Hamdi v. Rumsfeld, above, note 145, Supreme Court Judgment, p. 28. This case, decided

alongside the Guantanamo detainees case, concerned a US citizen and the court in that

case stated that: ‘[A] state of war is not a blank check for the President when it comes

to the rights of citizens.’ Although perhaps somewhat less robustly, it reached the same

conclusion in respect of non-citizens at Guantanamo Bay in the Rasul case, note 38, above.

See Chapter 4, para. 4B.2.3, ‘Inter-state Cooperation in Practice post 9/11’.

Lord Steyn, ‘Guantanamo Bay: The Legal Black Hole’.



9

Conclusion



It is of course acknowledged that international law is not an exact science,

but it surely does not have to appear as bizarre as some of its practitioners

have made it appear in recent months?

Baroness Ramsay of Cartvale (Parliamentary Debates,

Hansard, 17 March 2003)

Any sacrifice of freedom or the rule of law within States – or any generation

of new tensions between States in the name of anti-terrorism – is to hand

the terrorists a victory that no act of theirs alone could possibly bring.

Secretary-General Kofi Annan (Statement to the Security

Council ministerial meeting on terrorism, 20 January 2003)



9.1 September 11 as opportunity and the ‘war on terror’ response

September 11 was an international tragedy. It was a crime under international law and, as the Security Council promptly determined, a threat

to international peace and security. It was followed by widespread, perhaps unprecedented, expressions of international solidarity with the

United States. The Security Council expressed its willingness to act.

States and institutions committed their shared determination to cooperating more effectively to combat terrorism and to hold to account those

responsible.

It is tempting to speculate that September 11 represented a moment

of unique opportunity: international law could have been reasserted over

the international chaos and anarchy that the attacks represented; accountability norms and mechanisms could have been consolidated, bolstered

with improved multilateral enforcement; the lagging system of international cooperation in criminal justice could have been enhanced and

strengthened; the established collective security system could have been

invoked to uphold international law and protect international peace and

security improving the credibility and effectiveness of that system.

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The ‘war on terror’, however, unfolded differently. Its emphasis has, as

the epithet suggests, been overwhelmingly military. That military response

was essentially unilateral, and multilateral to the extent that ‘coalitions of

the willing’ supported the US military campaign(s). Despite a manifestly

sympathetic Security Council, no attempt was made to engage it to take

the action considered necessary in Afghanistan to defend the US and

maintain international peace and security more generally. Questions as

to the marginalisation of the UN collective security system therefore arose

before the notorious divisions that characterised the advent and aftermath

of military intervention in Iraq.

An expansive interpretation of the law of self defence was promoted

in support of intervention in Afghanistan, by contemplating self defence

against terrorist organisations – allowing for bombardment of states not

themselves legally responsible for the attack being defended against – and

promoting ‘regime change’ as a legitimate objective of self defence. This

was followed by a broader approach to self defence in the doctrine of

pre-emption advanced in support of the Iraq intervention and published

as US policy for the future in the United States National Security Strategy. However, the principal justification for resort to force in Iraq was

that Security Council authorisation to use force was ‘implicit’ in old UN

resolutions passed in other contexts – an argument advanced once when

explicit authorisation proved impossible to achieve given the depth of

division within the Council.

The enormity of the September 11 crimes appears not to have been

matched by an enormous criminal law enforcement initiative. The

prospect of international justice was sidelined shortly after 9/11, yet

national prosecutions have hardly borne fruit, frustrated it seems by the

emphasis on the military execution of the ‘war’ and a failure of international cooperation, including as a result of US refusal to share intelligence

with foreign courts. In many other instances, the post 9/11 practice of

international ‘cooperation’ has been an extra-legal enterprise, with persons being transferred between states entirely outwith the legal framework

and the protection of law.

Following September 11 a flurry of proclamations condemned terrorism and committed states to cooperate to combat it, most significant

among them Security Council Resolution 1373, which mandated a host

of measures aimed at, for example, preventing terrorism, criminalising

it, cutting off funds to terrorists and denying them refugee status. This

firmness of action was not, however, coupled by any firmer understanding of the conduct to which such action was to be directed. Insistence