The Guantanamo Bay Tragedy
Justice or Revenge?

“It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization – treating some humans as outside the scope of the law – becomes one tactic by which a putatively distinct 'Western' civilization seeks to define itself over and against a population understood as, by definition, illegitimate.”¹

Arrival at Guantanamo

With the end of the Cold War, the idea of American exceptionalism was widely diffused among Americans. The concept by definition implied “an unhealthy monopoly by one superpower who – unrealistically – believed it could manage single-handedly the whole world with all its complexity. The events of September 11 put a huge dent in this concept of American exceptionalism: With the crumbling of the World Trade Center came down the idea of the U.S. as the invincible unshakable giant.”²

More importantly, the destructive American-led campaign against what it calls “terrorism” resulted in that the U.S. has lost its moral high ground with its promise of a post-Cold War world where international law would be respected and justice would prevail. Despite frequent claims that the U.S. is the global champion of human rights, “it has all too often shown itself to be reluctant to adhere to international human rights law and standards.”³ Hence, another pillar of the post-Cold War world has fallen.

One can also easily detect a clear tendency in America towards accepting “collateral damage” – a military term that indicates “killing innocent civilians.” This was coupled with a tendency to reflect a flagrant double-standard with regards to the death of Afghan civilians. While images of planes crashing into the World Trade Center and American casualties continue to be displayed in international media, the killing of at least 3,767 Afghan civilians in only eight and a half weeks of bombing went largely unnoticed.⁴

This carnage was considered by most political and military officials as an “acceptable cost” in the so-called “war against terrorism.” Assistant Secretary of Defense, Paul Wolfowitz, in an interview with the London Sunday Telegraph, justified the use of cluster bombs or any other weapon in Afghanistan by saying, “We lost somewhere between 5,000 and 7,000 people in a single day. We are now being threatened with weapons that could kill tens of thousands of people, and we are trying to avoid killing innocent people, but we have to win this war and we will use the weapons we need to win this war.”⁵

Senator Zell Miller, Georgia Democrat, told his colleagues “I say bomb the hell out of them, if there’s collateral damage, so be it.”

Senator Phil Gramm, Texas Republican said “America will not be constrained by the old rules of engagement.”

Senator Craig Thomas, Wyoming Republican, said that “the public is ready to give Mr. Bush an A for initiating severe retaliatory measures,” and will “agree to almost any means” of going after the enemy.⁶

Three hundred suspected Taliban and Al-Qai’da detainees have been subjected to brutal conditions at Camp X-Ray at Guantanamo Bay, Cuba. Such conditions defy any moral or legal justification provided by American political and military officials concerning their detention.

The tragedy of Guantanamo Bay is not a single independent incident of injustice, but rather a trend in post-September American domestic and foreign policy. This has been manifested in the context of more than one thousand foreign nationals arrested and detained in the U.S.⁷

New laws have been created to justify the systematic interviewing of 5,000 young Middle Eastern men in the U.S. and the authorization of secret military tribunals with no appeals for noncitizens accused of terrorism. Under those new laws, the attorney general can detain for deportation any noncitizen who he has “reasonable grounds to believe is engaged in any activity that endangers the national security of the United States.”⁸

Deprived of all of their God-given senses, sedated and chained to their airplane seats for almost 24 hours – the duration of the trip from Afghanistan to Cuba – the detainees were transported to Camp X-Ray. Upon their arrival, they were kept in cells measuring 1.8m by 2.4m, open to the elements.

Receiving prisoners at Camp X-Ray

Taliban and al-Qaeda detainees were confined in small cages with chain-link sides, concrete floors and metal roofs. Details about sanitary and hygiene facilities were not available. When Commander James Gallagher, Director of Fleet Hospital 20, Guantanamo Bay, Cuba, was asked what he had seen when he looked into the eyes of the detainees, he replied: “Human beings who are suffering, with injuries and diseases.”⁹ One account described the detainees:

Wearing bright orange wool knit caps, blacked-out goggles, earmuffs, white surgical masks, bright orange jumpsuits, denim jackets, beige mittens (taped around the wrists), handcuffs and ankle shackles, the detainees don’t look natural. They look like giant bright orange flies. After a 25-hour flight of mostly sitting, the prisoners hobble along as the Marines, who look twice as big, walk them out and frisk them. One soldier handles a captive like a mannequin – moving him back, forward, and to the side – before lifting him straight off his feet and onto one of two waiting buses. “Walk! Walk!” the guards shout. “Shut up! Head down!”¹⁰ 

The U.S. administration has continued to refuse granting the 300 Guantanamo Bay detainees prisoner-of-war status, arguing simply that they are “unlawful combatants” who are not covered by the Geneva Conventions.¹¹ The U.S. administration explained that they are not entitled to formal POW status because they did not fight for a regular army, wear insignia that identified them as soldiers, or respect the rules of war. However, under the Third Geneva Convention, any dispute about their status must be determined by a “competent tribunal”¹² not Secretary of Defense Rumsfeld or President Bush.

“The Secretary seems unaware of the requirements of international humanitarian law,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program. “As a party to the Geneva Conventions, the United States is required to treat every detained combatant humanely, including unlawful combatants. The United States may not pick and choose among them to decide who is entitled to decent treatment.”¹³

The United States is a party to the Geneva Conventions, the laws governing the treatment of persons captured during armed conflict. Under the conventions,

every captured fighter is entitled to humane treatment, understood at a minimum to include basic shelter, clothing, food and medical attention. In addition, no detainee – even if suspected of war crimes such as the murder of civilians – may be subjected to torture, corporal punishment, or humiliating or degrading treatment. If captured fighters are tried for crimes, the trials must satisfy certain basic fair trial guarantees. Prisoners of war (POWs) are entitled to further protections, commensurate with respect for their military status as soldiers. Indeed, the Geneva Conventions provide that prisoners of war must be quartered in conditions that meet the same general standards as the quarters available to the captor’s forces, e.g. the U.S. armed forces. In addition, POWs prosecuted for war crimes must be tried by the same court under the same rules as the detaining country’s armed forces.¹⁴

But there is a more subtle reason the detainees are not declared prisoners of war. The U.S. “is out to avenge 11 September, and this is a war of example. The world has seen how American military power has wrecked Al-Qa’ida in Afghanistan. It is now seeing what happens to those who are taken prisoner. Rightly or wrongly, America calculates that others tempted to take up arms against it might have second thoughts.”¹⁵

Amnesty International is concerned that despite President Bush’s assertion that “America will always stand firm for the non-negotiable demands of human dignity,”¹⁶ the U.S. government has:

• transferred and held people in conditions that may amount to cruel, inhuman or degrading treatment, and that violate other minimum standards relating to detention.

• refused to grant people in its custody access to legal counsel, despite ongoing interrogations which may lead to prosecutions.

• refused to grant people in its custody access to the courts to challenge the lawfulness of their detention.

• refused to disclose full information about the circumstances of many of the arrests, including whether they occurred in Pakistan, Afghanistan or elsewhere.

• undermined the presumption of innocence through a pattern of public commentary on the presumed guilt of the Guantanamo detainees.

• threatened to apply a second-class justice system by selecting foreign nationals for trial before military commissions – executive bodies lacking clear independence from the executive, with the power to hand down death sentences, and without the right of appeal to an independent and impartial court.

• raised the prospect of indefinite detention without charge or trial, or continued detention after acquittal by military commission.

• failed to show that it conducted impartial and thorough investigation into allegations of human rights violations against Afghan villagers detained by U.S. soldiers in Afghanistan.¹⁷

Being processed

The international legal community has condemned the U.S. policy of detention without trial, accusing President George Bush and his Secretary of Defense, Donald Rumsfeld, of flagrant human rights violations. Stephen Solley, Chairman of the United Kingdom’s Bar Human Rights Committee, said that the treatment of the suspects was “so far removed from human rights norms that it (was) difficult to comprehend… even the Nuremberg trials of the Nazi war criminals more than 50 years ago were conducted with some dignity and access to lawyers had not been an issue.”¹⁸

In addition to the lack of respect on behalf of the U.S. government for international law, the way in which the law itself has been worded adds to the problem. The wording of the Geneva Convention accords, which seek to protect prisoners of war from hostile governments, tends to favor prisoners who belong to established nation-states.

For the United States, those are not POWs because this is not an ordinary war; “it is not primarily a battle between recognizable nation-states or, in the parlance of the Geneva Conventions, ‘High Contracting Parties’.”¹⁹ Hence, the law must be expanded to explicitly protect those engaged in military action for stateless organizations or militias the same way it protects those who fight for established states.

In addition, the detainees are rejected by their own mostly pro-American Arab governments. Abdel Bari Atwan, editor of the independent London-based Al-Quds al-Arabi, said: “The Arab governments hate those people, they want the Americans to execute them.”²⁰

The world will never be the same after the September attacks. One thing that the U.S. administration should keep in mind, though, is that some measure of international justice must be upheld for a successful world order to flourish. Otherwise, the seeds of disintegration and disorder will be sown when too many people feel that the system is unfair.

It is often a solemn reminder that the first world order, the League of Nations, disintegrated due the blatant disregard for international law and general loss of faith in the system. The unwillingness of the Axis Powers to respect their international obligations meant that those international legal obligations were not worth the paper they were written on.²¹

Another important reminder is that thirty years ago, American prisoners of war were being brutalized in North Vietnam, and an outraged American government “sought to shame their captors into respecting the Geneva Conventions.” The treatment of Americans never came close to being humane. But, as Senator John McCain (R., Ariz.) has said of his POW ordeal: “I’m certain we would have been a lot worse off if there had not been the Geneva Conventions around.”²²

Indeed, as Samuel Huntington noted: “a world of clashing civilizations, however, is inevitably a world of double standards.”²³

1- Judith Butler, “Guantanamo Limbo: International Law Offers Too Little Protection for Prisoners of the New War,” Nation April 1^st, 2002: 20-24

2- Bahgat Korany, “Decoding Bloody Tuesday Events: From the End of the End of History to the End of American Exceptionalism,” in The Attacks on the United States: What Next?: Papers from a Political Science Panel November 24^th, 2001

3- “United States of America: Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay,” Amnesty International April 2002

4- Marc W. Herold, “A Dossier on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Accounting,” The author examined only documented cases of civilian casualties that were reported by news media. The real estimate of civilian casualties is believed to exceed 5,000.

5- Marty Jezer, “We Bomb in Afghanistan,” Common Dreams News Center November 4^th, 2001

6- Qtd. in Manar El-Shorbagy, “The Blessings of Liberty at Risk,” in The Attacks on the United States: What Next?: Papers from a Political Science Panel

November 24^th, 2001

7- “United States of America: Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay,” Amnesty International April 2002

8- Matthew Purdy, “A Nation Challenged: The Law,” The New York Times November 25^th, 2001 : Section 1A Page 1

9- Marke Winne, “Just Keep Your Prayers For Myself and My Team Members,” Action News 2: WSBTV February 11^th, 2002

10- Paul De La Garza, “72 Hours at Camp X-Ray” St. Petersburg Times February 20^th, 2002

11- For full details on the Geneva Conventions relative to the treatment of prisoners of war, see http://www.unhchr.ch/html/menu3/b/91.htm

12- “United States of America: Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay,” Amnesty International April 2002

13- “US: Geneva Conventions Apply to Guantanamo Detainees,” Human Rights Watch January 11^th, 2002

14- Ibid.

15- “Guantanamo Bay: Just Retribution of an Abuse of Human Rights? A Big Question, With Only One Answer in the US,” The Independent January 18^th, 2002: 5

16- “United States of America: Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay,” Amnesty International April 2002

17- “USA: Treatment of Prisoners in Afghanistan and Guantanamo Bay Undermines Human Rights,” Amnesty International April 15^th, 2002

18- “Guantanamo Bay: American Action is Unlawful, Say Legal Experts,” The Independent January 18^th, 2002: 4

19- Butler, “Guantanamo Limbo,” 20-24

20- Marie Colvin, “Mindless Torture? No, Smart Thinking,” Sunday Times January 27^th, 2002

21- Jean Allain, “Legal Constraints on US Action,” in The Attacks on the United States: What Next?: Papers from a Political Science Panel November 24^th, 2001

22- Tom Malinowski, “What To Do With Our Detainees?” Human Rights Watch January 28^th, 2002

23- Samuel Huntington, “The Clash of Civilizations?: The Next Pattern of Conflict,” Foreign Affairs 72 (Summer 1993): 22-50.

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