As of yesterday, our government is holding about 160 people at the American military base in Guantanamo Bay, Cuba. Their physical status seems quite clear. They are imprisoned, in quite questionable conditions. Many, if not all, of their cells are surrounded only by chain-link fences and covered atop by corrugated steel sheets. Physically, they are prisoners. This seems quite clear.
Their legal status is, of course, in quite a limbo. International human rights groups, including the International Committee of the Red Cross, have called the individuals kept at Guantanamo Bay “prisoners of war.” Our government, of course, continues to call them “unlawful combatants” or “detainees.” By referring to them in this terminology, they are, of course, not recognizing that these prisoners have any rights under international law, namely the Geneva Conventions. The United States government, our government, is a signatory to the Geneva Conventions, meaning it has agreed to abide by the rules and regulations set forth by the international community.
When we actually take a look at the Geneva Conventions, it helps us to narrow the debate on the legal status of the individuals held in Cuba. The Geneva Convention clearly states that an individual becomes a prisoner of war if detained while in uniform of an opposing country or a member of a recognizable militia. This may not make al-Qaida members prisoners of war, but Taliban soldiers probably would qualify. But what is even more pertinent in the Geneva Convention is the clear statement of who is to determine the status of detained individuals. If there is any question as to whether individuals detained in combat are prisoners of war, signatories to the Geneva Conventions, including our government, are bound to treat them as if they were. The Geneva Convention then provides for the creation of a council to determine the final status of the detained persons.
This provision is extremely important. It means that our Secretary of Defense, Donald Rumsfeld and our president, George W. Bush have absolutely no authority to be classifying the prisoners at Guantanamo Bay. If they have a question, they must look to the Geneva Conventions to solve the problem. International law, though, is also not having its finest hour, as we have not yet heard of any plans of the Geneva Convention to convene a council to determine the status of the prisoners, as it is required to do. We can probably safely assume that if there have been any overtures by officials from the Geneva Convention to create a council, our government has been working behind the scenes to prevent any such developments.
In other words, Rumsfeld has no right under international law, which our government abides by and helped create, to classify the prisoners as “unlawful combatants” or “detainees.” It also seems quite silly whenever Rumsfeld or the collection of talking heads on national media begin to say that the prisoners we have detained are being treated much better in our care than they would be if they had remained in Afghanistan. In justifying our treatment of these prisoners, our Secretary of Defense and many commentators have actually resorted to comparing the way we treat prisoners to the way forces and conditions in Afghanistan may have treated. Comparing our practices with that of a rag-tag militia should not be the measuring stick with which to justify our actions to our citizens and to the world.
In another interesting twist, it turns out that our military presence in Cuba is quite unique in nature. At most all of our military bases, U.S. law applies. In other words, if you happen to be a non-military individual at an American military base in Germany, for instance, you have recourse under U.S. law if your civil rights are infringed in any way. Our base at Guantanamo Bay, however, does not function under the same rubric. Since we lease the land we use in Cuba (under a lease which provides that the lease cannot be terminated unless both parties agree, which is why we have maintained a presence there even during Castro”s rule), the land of Guantanamo Bay is technically Cuban. This means that the prisoners at Guantanamo Bay cannot resort to American law if they believe their civil rights have been abridged and since they have not been openly acknowledged as prisoners of war, they also have no recourse under international law in the event they wish to make a case that their rights have been violated. They effectually have no rights.
Yes, our country is still in a sensitive state and may always be from now on. But the issues arising in Guantanamo Bay are not a matter of nicely treating a bunch of prisoners who are determined to destroy America rather, the issue at hand is whether or not we are willing to set an example and follow international law, even when it is emotionally difficult to do so. We cannot holler and scream when other countries around the world violate human rights, when we are not ourselves willing to lead the way. If anyone is looking for a reason as to why much of the international community dislikes our government, our handling of the Guantanamo Bay prisoner dilemma is the prime illustration.
Amer G. Zahr can be reached via e-mail at email@example.com