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GUANTANAMO BAY: a humanistic approach towards detention?

GUANTANAMO BAY: a humanistic approach towards detention?

By Vaibhav Srivastava

Guantanamo Bay detention camp is also known as ‘Gitmo Bay’ or ‘G-Bay’ or ‘GTMO’. It is a United Sates military prison located within Guantanamo Bay Naval Base, which is on the coast of Cuba. The detainees over here have been detained indefinitely without any trial and several have been part of great torture. Since, there is a major concerned question on breach of human rights arises. This camp was established by President George W. Bush, during his tenure of administration, in year 2002.[1] Barack Obama, the succeeded President, then on promised the people to make a close on such cruel detention method. However, this was not happened so due to the strong opposition from Congress, which passed laws to prohibit detainees from Guantanamo being imprisoned in the U.S. There were a large number of detainees freed during the administration of Obama; it went on from 245 prisoners to only 41. In January 2018, President Donald Trump signed an executive order to keep the prison camp open indefinitely. The one prisoner was also made to release in the tenure of Trump, which bring on the count from 41 to 40.


The treatment done with the detainees over Guantanamo Bay is of ‘Shylock’ nature. It is horrifying to see the method used for investigating. As per the ‘International Law’ most of the brutal methods are banned. But, United States CIA (Central Investigating Agency) does not follow up the norms on any kind of techniques. It is reported that US CIA, still uses ‘Waterboarding’ methods for investigating. The CIA confirmed having waterboarded three     Al-Qaeda suspects: Abu ZubaydahKhalid Sheikh Mohammed, and Abd al-Rahim al-Nashiri, in 2002 and 2003. In 2006, the Bush administration banned torture including waterboarding on detainees, but only for the US Military, not the CIA. When an amendment by Senator         Dianne Feinstein passed that restricted its use on the CIA, President Bush vetoed the bill.      There have been instances such a detainee being strapped to the floor without access to bathroom facilities, food, or water, for over 18 hours.[2] The detainees are threat using semiautomatic weapons, in order to obtain confessions.[3] However, United States claim that the practice is not covered under International law[4] as well as International humanitarian law[5], because the camp is not the native soil. In addition, the united States argue that the detainees are held in Cuba and not in the United States; the detainees were not subject to United States laws concerning human rights.[6] Many international organizations have concluded that although the detention center may not be on United Sates[7] soil, the United States has the jurisdiction over the area as the authority is set up by the US, only on the soil of Cuba. Therefore, the US is only responsible the inhumane treatment in the name of detention.[8]


The jurisdiction of the US, over Guantanamo Bay, will be clearly explained by the relationship between ‘International Humanitarian Law’[9] & ‘International Human Rights Law’[10]. These two branches of law are the broad subject of ‘International Law’. The rules of international humanitarian law apply only during instances of armed conflict, while international human rights laws apply at all times, to all of a state’s conduct[11].

“There is something fundamentally wrong with a system where not being charged with a war crime keeps you locked away indefinitely and a war crime conviction is your ticket home.”

The IHL focuses on the ‘Armed Conflict’, that is, the prisoners who are from war crime. But, on the other hand the IHRL is focused on the ‘Rights of Prisoner’ irrespective of their offence. It is concluded by saying that the method of this system is completely strange & inhumane in nature. The person charged with the war crime is released, but person who is not charged with war crime is not. 



Common Article 3 of Geneva Convention pours the light over U.S. terrorist detainee policy; however these are not binding, as a matter of law. Common Article 3 is the third article common to each of the four Geneva Conventions. The convention was the response to the horrific atrocities of World War II. The first convention covers the wounded soldiers, the second covers the marine matters, the third covers the prisoners of the war, and the fourth covers the civilians taken by the enemy. It is not vague that what the conventions want to forbid or what it want to allow. According to the common Article 3, detainees “shall in all circumstances be treated humanely,” but the term ‘humanely’ is not well defined by the convention. However, it strictly prohibits the “cruel treatment and torture” or the “particular humiliating & degrading treatment”. At last, it provides no concrete guidance to anyone holding detainees.


The fact remains that Guantanamo Bay is still one of the most effective propaganda tools in the worlds for militant Islamic fundamentalists. The maximum security prison of the world is only response to the attacks of 9/11.

Jimmy Carter has stated that, “What has happened at Guantanamo Bay….does not represent the will of the American people.” Carter has also remarked, “I’m embarrassed about it, I think it’s wrong. I think it does give terrorists an unwarranted excuse to use despicable means to hurt innocent people.” 

President Barack Obama has stated that, “I believe the United States of America must remain in a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength…We lose ourselves when we compromise the very ideals that we fight to defend.”

These to be believe of majorities of Americans that if the GITMO is open, then it would serve its purpose with a great sacrifice for the future of Americans. This brutal & blatantly immoral is tactically misguided. It will lead the terrorists an opportunity to say, “Why can’t we torture? You do”. And “Why can’t we hold prisoners without charge? You do”. [12]



 Due to George W. Bush administration’s “global war on terror”, which makes the indefinite use of Military force “lawful” as a matter of US policy and allows the executive to determine the such matter rather than any intervention of the Judiciary. After which the US Supreme Court held that federal courts had jurisdiction to determine the legality of Guantanamo prisoner’s detention, the Bush administration has set up the DTA (Detainee Treatment Act) to avoid detainees to have the trial. Again the SC struck down the DTA as unconstitutional.

Then in 2010, Obama administration announced that the detainees cannot be prosecuted or released, but would remain in “indefinite detention” without any charge or trial. After this the administration has signed to transfer any of the detainees to any of the country. This was covered under NDAA (National Defense Authorization Act), where on record till no prisoner was released.

The US Supreme Court held in the four important judgments, Rasul v. Bush[13], Boumediene v. Bush, Hamdi v. Rumsfeld, & Hamdan v. Rumsfeld, that international law applies to Gitmo bay detainees, that they cannot be held indefinitely without trial, that constitutional habeas corpus[14] protection apply to them. But by the means of policy or any other kind of proclamation it kept on lowering the rights.


UN international bodies, including the ‘International Committee of the Red Cross (ICRC)[15], 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 Guantanamo prisoners as well as international human rights treaties. These prohibit torture, cruel and inhuman treatment & indefinite detention without trial, and demand for the prompt, fair & equal trial. The problem is not with law, but the body which controls it.

The prison still holds 40 Muslim men, many of whom have been tortured. Many of the detainees have been cleared for transfer for years. In words of Daphne Eviatar, director of security, “Guantanamo continues to operate as a symbol of Islamophobia that embodies the fear-mongering and xenophobia that defines Trump’s presidency.

Obama’s policy for maintenance of an detention facility was overturned by Donald Trump in January 2018. “As long individuals continue to be detained in Gitmo, any calls for human rights by the US will ring hollow”.




[2] Anthony Lewis, "Guantánamo's Long Shadow," The New York Times, July 21, 2005.

[3] Jimmy Carter, "A Cruel and Unusual Record," The New York Times, June 24, 2012.

[4] International human rights law will be referred to as human rights law, and the abbreviation IHRL throughout this paper.

[5] International humanitarian law will be referred to as humanitarian law, and the abbreviation IHL throughout this paper.

[6] Patricia Goedde, “Human Rights of Guantánamo Detainees under International and US Law: Revisiting the US Supreme Court Cases,” Journal of East Asia & International Law (2014): 17.

[7] U.S. Additional Response of the United States to Request for Precautionary Measures Detention of Enemy Combatants at Guantánamo Bay, Cuba (July 15, 2002).

[8] Wilson, 4.

[9] “What is International Humanitarian Law,” International Committee of the Red Cross, Advisory Service on International Humanitarian Law: 1.

[10] “International Human Rights Law,” United Nations Human Rights Office of the High Commissioner.

[11] Samantha Pearlman, “Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms,” Seattle University Law Review 38 (2015): 1119.

[12] Joan Fitzpatrick, “Speaking Law to Power: The War Against Terrorism and Human Rights,” European Journal of International Law 14 (2003): 243.

[13] Rasul v. Bush (03-334) 542 U.S. 466 (2004), (recognizing the event that lead to the United States gaining access to the land that would be the Guantanamo Bay Naval Base).

[14] Fiona de Londras,“Guantanamo Bay: Towards Legality,” The Modern Law Review (2008): 40.

[15] Hans- Joachim Heintze, “On the relationship between human rights law protection and international humanitarian law,” International Review of the Red Cross 86 (2004): 794.

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