Guantanamo Bay: a hole in the laws of physics

Detainees at Camp X-Ray (picture US Navy)

By Richard Laming

The detention camp established by the United States at Guantanamo Bay has become notorious around the world. It is used as a prison camp for prisoners captured in Afghanistan and elsewhere, holding prisoners from many different countries including the United Kingdom.

A Military Order issued by President Bush on 13 November 2001 set out the conditions by which such prisoners would be held and tried under military law. This order specifically rules out an appeal to any court, whether state, federal or international, in the United States or anywhere else in the world.

A challenge to this in the American courts failed with a ruling that prisoners held in Guantanamo Bay do not have the protection of American domestic law. They are not American citizens and are not (and in most cases have never been) on American soil. (An American citizen captured in Afghanistan was taken for trial in America.)

Furthermore, US officials have argued that the Geneva Convention does not apply because the prisoners in Guantanamo Bay are not prisoners of war but “unlawful combatants”. The term “unlawful combatant” was used during the second world war to describe German nationals carrying out acts of sabotage in the US while wearing civilian clothes.

The Geneva Convention is tightly defined: it applies only to soldiers in uniform and acting under orders, with certain exceptions for members of armed militias and civilians. The key test is that they act according to what are quaintly known as the “laws and customs of war”. From reports, it is likely that many of the prisoners held at Guantanamo Bay, for example from Al Qaeda and the Taliban, do not fit this description.

It appears, therefore, that the United States can capture individuals and imprison them in Cuba apparently beyond the reach of both United States domestic law and the Geneva Convention. The Master of the Rolls, Lord Phillips, described this situation as “a legal black hole”. It is, perhaps, worse than that.

¤ ¤ ¤

Imagine if there was a part of the world where the laws of gravity did not apply. Rather than falling to earth at 9.81 metres per second squared, what if an object merely rested where it was?

Think of the possibilities for architecture. All kinds of new structures would be possible once the restrictions of gravity are removed. Artistic creativity would have new opportunities.

But of course such a proposal is absurd. Zero gravity conditions can be created, but only in space. Here on earth, the force of gravity is inescapable. It is central to how we live, even to how we have evolved.

I think that the same approach can be true in politics, too. Respect for human rights should pervade politics the way that gravity pervades architecture. Just as an architect cannot choose whether or not gravity should apply in the case of any particular building, no politician should be permitted to choose that human rights no longer apply.

This surely is the meaning of a universal principle or an inalienable right. Human dignity is as integral to our existence as the fact that if you drop something, it goes down and not up.

¤ ¤ ¤

Federal Union argues that democracy and the rule of law should apply to states as well as within them. The reliance on national political institutions to protect human rights is not adequate, visibly so in the case of Guantanamo Bay. (The base was acquired from Cuba by a treaty which the present Cuban government refuses to recognise.) A universal principle requires a universal jurisdiction. In the absence of that jurisdiction, the problem remains a political one.

There is a resolution adopted by the United Nations General Assembly outlining the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Even if the Geneva Convention on prisoners of war is not observed at Guantanamo Bay, this UN resolution could (and should) be.

The view of the British government is that this resolution is not legally binding (letter from Baroness Symons to Harry Cohen MP, 16 May 2003) and that the legal position is “complex”. Great play is made of the fact that British nationals held in Guantanamo Bay have been accorded consular visits to check on their welfare.

These statements are made as if they excuse a lack of political action, but of course they don’t.

This is not an idle concern. The UN resolution would grant the prisoners the right to independent legal advice: this is something they have yet to be offered.

Furthermore, there is an ongoing concern about the possible use of torture. In Westminster Hall on 5 June 2003 Foreign Office minister Bill Rammell observed, in rather macabre fashion, that “we are still receiving valuable information from the people who are there”. A policy of consular access is not sufficient: British consular visits have been paid to the British nationals only. Who speaks to the Sudanese or Yemenis?

¤ ¤ ¤

There is a choice to be made between two alternative sources of authority: the United Nations; and the United States.

The UN embodies, perhaps, our aspirations for a just and peaceful global order, and is trying to act as the forum for the resolution of international disputes and the expression of the common global interest. Its Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment is one such example. It was adopted unanimously, including support from the United States and the United Kingdom. Even if Baroness Symons is right that there is no legal force behind the resolution, can she not see that there is a moral argument to be answered? By ignoring these principles, Britain is failing in its international obligations as well as weakening the authority of the UN.

The United States, on the other hand, acts according to laws it defines for itself. It is entitled to do this: it is a sovereign state, after all, and that is what sovereign states do. But the result of this is the camp at Guantanamo Bay and the negation it represents of what we sometimes suppose to be universal values. In the Westminster Hall debate, Bill Rammell called the situation “unusual”, “difficult” and “irregular”. He could have called it “immoral” or “unacceptable”, but he did not.

To choose the United Nations in this instance would not only provide guarantees for the Guantanamo detainees that they currently lack, it would also be a clear signal about the kind of world in which we live. It would reinforce the idea that we have human rights not because we are American or British but because we are human.

State sovereignty may superficially be an attractive idea, but the camp at Guantanamo Bay reveals the limits of this attraction. We have watched human rights sacrificed in the name of state sovereignty too often in the past: let us not allow Guantanamo Bay to be added to that list.

This article was written by Richard Laming, Director of Federal Union. He can be contacted at richard@richardlaming.com.The views expressed in this article are those of the author and not necessarily those of Federal Union. This article was first published in “Global Citizen” (June 2003), published by the One World Trust, which may be contacted at owt@parliament.uk.

More information

Read this article as a pdf at Guantanamo

Statement by leaders of the legal profession on Guantanamo Bay

About the Author