Criticism of U.S. Guantánamo policy

Published: 02 February 2018 Author: Stefan Talmon

In the wake of the terrorist attacks on the United States on 11 September 2001 and the subsequent “war on terror”, U.S. President George W. Bush in January 2002 established a detention camp located at the United States Naval Base in Guantánamo Bay, Cuba. Over the years, the United States has detained there without trial some 780 persons it considers extremely dangerous terrorists. Several current and former detainees reported abuse and torture. U.S. President Barack Obama unsuccessfully tried to close the detention camp. By 2018, there were still 41 detainees held at Guantánamo.

On 30 January 2018, U.S. President Donald Trump announced in his State of the Union address that he had decided to keep open the detention facilities at Guantánamo Bay, suggesting that he may even use the facility to house new terrorism suspects for the first time in a decade. On the same day, he signed an Executive Order which provided in part:

“Section 1.  Findings.

(a) Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.

(b)  Following the terrorist attacks of September 11, 2001, the 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were a part of or substantially supported al-Qa’ida, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners. Today, the United States remains engaged in an armed conflict with al-Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.

(c)  The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law. […]

Sec. 2.  Status of Detention Facilities at U.S. Naval Station Guantánamo Bay.

(a)  Section 3 of Executive Order 13492 of January 22, 2009 (Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities), ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked. […].”

Foreign Minister Sigmar Gabriel sharply criticized the decision to keep the detention camp open. In an interview on 31 January 2018, he said:

“In our view, the detention centre in Guantanamo is not compatible with the principles of humanity, the rule of law and human rights. Keeping it open only aids the propaganda machines of IS (Islamic State) and al-Qaeda.”

Germany was opposed to the establishment of the Guantánamo detention camp from the start and for many years has called for its closure. Foreign Minister Gabriel rejected the U.S. position that the detention operations at Guantánamo were “legal, safe, humane, and conducted consistent with […] international law.” On the contrary, for Germany, the U.S. practice of indefinite detention without trial (with some detainees having been held at Guantanamo for more than 16 years) was incompatible with the rule of law and the United States’ international human rights obligations. Germany also never subscribed to the U.S. concept of the “war on terror”, that is, an armed conflict against al-Qa’ida and associated terrorist groups. Even if the United States were involved in armed conflict with al-Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria, the right to detain or intern persons for security reasons would exist only so long as “active hostilities” remained ongoing in the relevant conflict.

Category: Human rights

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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