What will it take to get the US government – across its three branches – to act with a real and continuing sense of urgency to close the US detention facility at Guantánamo Bay in Cuba, and to do so in ways that meet the USA's international human rights obligations?
A glimmer of hope for progress emerged with President Barack Obama breaking his recent silence on the detentions. At a White House press conference on 30 April 2013, one thousand five hundred and sixty days after he committed his administration to closing the Guantánamo detention facility within 365 days, President Obama said that he still "believe[d] that we've got to close Guantánamo". He was asked about the growing hunger strike among detainees held there, and responded that it was "not a surprise to me that we've got problems in Guantánamo". He further said that:
"the notion that we're going to continue to keep over a hundred individuals in a no man's land in perpetuity…, the idea that we would still maintain forever a group of individuals who have not been tried – that is contrary to who we are, it is contrary to our interests, and it needs to stop".
The US authorities, President Obama included, are yet to acknowledge that the Guantánamo detention regime is contrary to international human rights law, instead framing the "problem" exclusively in terms of domestic interests and values and the USA's "war" against al-Qa'ida and associated groups. And while the administration continues to blame Congress for blocking resolution of the detentions, the administration's own "promise" involves moving some four dozen detainees into indefinite detention elsewhere and, for a number of other detainees, continuing to resort to a military commission system falling short of international fair trial standards.
But, in part, President Obama is right – it is not surprising that these detainees are protesting their situation. Whatever the initial trigger for this hunger strike, there is no escaping the backdrop to it – detainees being held year after year after year with no indication of when, if ever, they will be released or brought to trial. Distress and protest are predictable outcomes of treating detainees as if they have no human rights, ciphers to be cast into oblivion thousands of miles from their families, their fate left to the whims of domestic politics to the exclusion of international human rights law and principles.
One of the detainees on hunger strike is Obaidullah, an Afghan national who has been in US military custody without trial since 21 July 2002. He told his lawyer in late March 2013:
"I am losing all hope because I have been imprisoned for almost eleven years now at Guantánamo and still do not know my fate".
Obaidullah was about 19 years old when he was taken into US custody. He is now about 30. According to his lawyer, his parting words at the end of their latest meeting in March 2013 were "please tell the world of this unfairness", adding "Latif died here even with a clearance". Here Obaidullah was referring to Yemeni national Adnan Farhan Abdul Latif who had been among those "approved for transfer" by the executive authorities, and who had repeatedly expressed despair at his indefinite detention. His circumstances, he said, "made death more desirable than living". In October 2011, after nearly a decade in US custody without charge or trial and a few days after a federal appeals court overturned a lower court order that he be released, Adnan Latif told his lawyer "I am a prisoner of death". Latif had been involved in protests against conditions at the camp, protests which included hunger strikes. When his lawyers met with him in May 2012, Adnan Latif had resumed his hunger strike. He was physically very weak and he "thinks he will die and has given up all hope", his lawyer said. Although he apparently ended his hunger strike, in September 2012, three months after the US Supreme Court refused to take his case, Adnan Latif was dead, reportedly as a result of suicide. In a statement, his lawyer said:
"However Adnan died, it was Guantánamo that killed him. His death is a reminder of the human cost of the government's Guantánamo detention policy and underscores the urgency of releasing detainees the government does not intend to prosecute."
The US authorities have long been warned of the psychological distress caused by the indefinite detention regime at Guantánamo. In January 2004, the International Committee of the Red Cross (ICRC), describing itself as "uniquely placed to witness the impact this uncertainty has had on the internees", revealed that it had "observed a worrying deterioration in the psychological health of a large number of them". That was over nine years ago.
If the USA didn't listen then, it should listen – and act – now. On 11 April, ICRC President Peter Maurer called on "the United States, including its Congress, [to] urgently find a way to resolve all pending humanitarian, legal and policy issues relating to the detention of persons held at Guantánamo Bay". Five days later, the United Kingdom government released its annual human rights report. In it, the UK said that "the indefinite detention without trial of persons in Guantánamo Bay is unacceptable and that the detention facility at Guantánamo Bay should be closed."
On 5 April, the United Nations High Commissioner for Human Rights, Navi Pillay, had also called for urgent resolution of the Guantánamo detentions, saying:
"Some of them have been festering in this detention centre for more than a decade. This raises serious concerns under international law… [T]his systemic abuse of individuals' human rights continues year after year. We must be clear about this: the United States is in clear breach not just of its own commitments but also of international laws and standards that it is obliged to uphold."
"Given the uncertainty and anxieties surrounding their prolonged and apparently indefinite detention in Guantánamo," the High Commissioner for Human Rights continued, referring to the hunger strike, "it is scarcely surprising that people's frustrations boil over and they resort to such desperate measures."
In a matter of weeks, the number of detainees the Guantánamo authorities say meet the military's definition of being on hunger strike has gone up seven fold, from 14 detainees on 15 March 2013 to 100 on 29 April. By 2 May, 23 of the detainees were being "tube fed", according to the authorities, with four of these detainees in hospital. A number of those being force fed are reported to be detainees who have long been "approved for transfer" by the US authorities.
Over the weekend of 27/28 April, about 40 more medical personnel arrived at Guantánamo, despatched there by the US Navy in response to the hunger strike. At the same time, among those raising questions about the reported use of force-feeding was the American Medical Association. In a letter to US Secretary of Defense Charles Hagel, dated 25 April, AMA President Dr Jeremy Lazarus called for the US authorities to "address any situation in which a physician may be asked to violate the ethical standards of his or her profession". The force feeding of a mentally competent hunger striker by medical staff contravenes medical ethics. In his letter, Dr Lazarus reminded the US authorities that "every competent patient has the right to refuse medical intervention, including life-sustaining interventions".
Amnesty International itself awaits a reply to the letter it faxed to Secretary Hagel on 22 March 2013. The organization is not in a position to know the full details about which detainees are on hunger strike or what precise form any particular detainee's protest is taking. Neither does the organization know the exact details of how any force feeding is being administered in any particular case. Nevertheless, a recent detainee account published in the New York Times and other allegations, as well as the past use of force-feeding at the prison camp, and the context of the detention regime in which the force-feeding is taking place, raise serious concerns. In addition, as noted further below, apparently punitive conditions being imposed on detainees since they were moved back to single cells in early April is cause for further concern.