If President Obama’s references to the rule of law in 2009 had incorporated international human rights law, the US administration would have long ago abandoned its endorsement of indefinite detention of Guantánamo detainees and military commissions as the forum in which to prosecute any of them (and an approach consistent with human rights would also have led the USA to drop its pursuit of the death penalty). Moreover, if the USA had applied human rights law from the outset, the reason Guantánamo was chosen as the location for this detention facility – to seek to keep the detainees from the US courts – would never have been countenanced. President Obama was right when he said in his latest speech that the Guantánamo detention facility “should never have been opened.” He should now recognize that in closing it, the USA should apply the long missing ingredient – international human rights law.
In his May 2013 speech, the President restated his commitment to closing the Guantánamo detention facility which he said “has become a symbol around the world for an America that flouts the rule of law.” To this end, he called on Congress to “lift the restrictions on detainee transfers” from Guantánamo, promised that “to the greatest extent possible, we will transfer detainees who have been cleared to go to other countries,” announced that he was appointing “a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries,” and that he was “lifting the moratorium on detainee transfers to Yemen so we can review them on a case-by-case basis.” While these moves should be cautiously welcomed, the coming days and weeks will begin to show whether or not this is another false dawn.
After all, for more than five years the US administration has been saying that it intends to close the 11-year-old detention facility. It is no surprise that many of the detainees feel a sense of hopelessness and despair at their situation of indefinite detention. As the UN Special Rapporteur on torture said on May 1, 2013:
“At Guantánamo, the indefinite detention of individuals, most of whom have not been charged, goes far beyond a minimally reasonable period of time and causes a state of suffering, stress, fear and anxiety, which in itself constitutes a form of cruel, inhuman, and degrading treatment.”
Shaker Aamer, who has been held for over 11 years without charge despite being cleared for transfer and despite UK Prime Minister David Cameron calling for him to be free with his wife and children in London, said back in 2005: “I am dying here every day, mentally and physically... We have been ignored, locked up in the middle of the ocean for four years."
Each day that passes without resolution of this situation compounds the cruelty to detainees and their families.
President Obama has blamed the failure to close the Guantánamo detention facility within his one-year deadline on the “difficult” politics surrounding “an issue that has generated a lot of political rhetoric” and made people “fearful.” Attorney General Holder blamed members of Congress for the administration’s U-turn on the trial of five detainees accused of involvement in the 9/11 attacks.
Under international law, domestic law and politics may not be invoked to justify failure to comply with treaty obligations. It is an inadequate response for one branch of government to blame another for a country’s human rights failure. International law demands that solutions be found, not excuses. The US administration is currently telling the world, in effect, “we will resolve the Guantánamo detentions when the domestic political climate is right.” The USA has not been willing to accept such excuses from other governments seeking to justify their systemic human rights failures, and it should not be accepted when it is put forward by the USA.
3. RECOMMENDATIONS TO THE US GOVERNMENT