Guantanamo Bay: Human vs.Legal Rights

Last night I watched Channel 4 news, where John Bellinger, counsel to the US State Department and the man who provided the legal justification for the war in Iraq, stated that holding prisoners in Guantanamo Bay is OK, because they have no legal rights. This clearly seems abhorrent at face value, but as Mr Bellinger continued to speak, I became struck by a notion that periodically lodges in my head when I think about the current state of Human Rights and International Law. And that is how culpable we, the public, are in allowing to pass without criticism comments, statements and observations which clearly breach commonly held moral assumptions, common sense, truth, or the law. On the one hand it seems that the speed and pace with which certain governments, leaders, and sections of the mainstream media bombard us with ‘facts’, information and claims is so rapid and unrepentant that we don’t have time to analyse what is being said and respond accordingly, because by the time one has it is no longer ‘current’, no longer ‘news’. The most obvious example comes from the run up to the war in Iraq, when so many lies and deceptions were thrown at us that we seemed unable to answer and defeat each point by point. It was as if we were being deliberately drowned in a sea of obfuscation. On the other hand it seems, conversely, that the lies we are presented with are so staggeringly and clearly untrue that we are frozen in incomprehension and withdraw to try and understand the implications of being so brazenly lied to. Either way, the net result is the same: lie upon lie passes us by with little or no challenge, analysis or retort. We are therefore subject to the spectacle of being told things which directly contradict things we were told previously, or even being told two dialectically opposed facts by the same person, almost in the same breath, with little or no opportunity to highlight these inconsistencies.

So I decided to download and transcribe John Bellinger’s comments on last night’s news, and deconstruct the inaccuracies and contradictions in his statements. As the man who provides the final say in legal issues to the US State Department, it is fair to say that he sings from the standard issue George Dubya songsheet, and represents (more eloquently than many of his colleagues) the stated views of the White House. I began by considering his response to a question from Jon Snow asking whether prisoners in Guantanamo Bay (and by extension other US prisons for ‘Enemy Combatants’ outside US territory) are subject to the Geneva Conventions:

“People have an aspiration that they would like the Geneva conventions to apply, and we typically apply the Geneva conventions, but all one has to do as a lawyer is to look through the terms of the Geneva conventions and they, one, don’t apply by their terms to Al Qaeda, they apply between high contracting countries. Al Qaeda is not a contracting party to the Geneva conventions”

I then downloaded and read the majority of the Geneva Conventions, and whilst I am not a lawyer and wouldn’t claim to have much idea about international law, it became abundantly clear that any party committing themselves to the Geneva Convention is expected to apply them, carte blanche, to anyone it interacts with in a combat situation (as no party to the Geneva Conventions can absolve itself, or another party, of liability for grave breaches of the Geneva Conventions, c.f. Convention I, Art. 51; Convention II, Art. 52; Convention III, Art. 131; Convention IV, Art. 148). The idea of ‘enemy combatant’ is present within the Conventions, but only as a descriptive term for any individual fighting for the army, guerrilla force, or combative force you are opposing. Furthermore, it is clear that any enemy fighter captured must be considered as a Prisoner of War. The only other possibility is that they are considered as a mercenary (subject to repatriation to their country of nationality and trial there) or a civilian (at which point they must be released or charged in a civilian court). On the subject of classifying the prisoners at Camp Delta Mr Bellinger asserts that “it’s probably right that these people are not entitled to be classed as prisoners of war under the Geneva Convention.” Probably? One minute he is claiming as an irrefutable fact that these men are not protected by the Geneva Conventions, the next he is suggesting they “probably” aren’t! He continues,

“Well, it’s not clear that they do have legal rights. All of us as lawyers, myself included as the legal advisor to the State Department, think that in general terms that all human beings need to be treated according to law and the rule of law. The problem is when one is dealing with essentially an army of terrorists who are trying to kill civilians. The legal rules that apply to people like that are simply not clear. So I can understand that people would like to apply the Geneva conventions, but anybody, you barely have to be a lawyer to read the terms of the Geneva Convention to see that these people do not qualify as prisoners of war.”

So, essentially, in the same breath as he claims that all people should be subject to the rule of law, he denies these men their right to protection under the only piece of international legislation drawn up to deal with, and protect, people in exactly the situation of those men captured by the US in Afghanistan, Iraq, and elsewhere. And when one actually takes the time to think about what is being said one sees a classic example of the blurring of issues to attempt to deflect our attention from the lies we are being told. The discussion focuses specifically on Camp Delta at Guantanamo Bay. In Camp Delta there are a number of prisoners (the exact number is unknown as the US admits there are prisoners held there who even the red Cross have not been allowed access to – a clear breach of international law). Depending on the questions raised we are lead to believe either that, a) these men are Al Qaeda terrorists suspected of involvement in unspecified plots or actions, or b) these men are ‘enemy combatants’ from Afghanistan or Iraq who were captured fighting the US (and are usually accused of having links to Al Qaeda). In this instance Mr Bellinger implies that the men in Guantanamo Bay are involved in “trying to kill civilians” – that is to say, they are terrorists. However, earlier in the week it had been announced that (according to a report by two lawyers, Mark Denbeaux and Joshua Denbeaux) more than half of the detainees, who are being held without charge, have never committed any "hostile acts" against the US. They estimated that 55% "are not determined to have committed any hostile acts against the United States or its coalition allies", after analysing government documents regarding the prisoners. Furthermore, according to the documents, only 8% were classed as al-Qaeda fighters and 60 prisoners "are detained merely because they are 'associated with' a group or groups the [US] government asserts are terrorist organizations". So, whilst Mr Bellinger claims it is perfectly acceptable to hold these men, without trial, in a country they are neither from nor were fighting in, as the Geneva Conventions don’t apply to terrorists, it is actually the case that over half these man have not been involved in any acts hostile to the US. And only one in ten is associated with Al Qaeda. So, these men are held, without trial, illegally, without the protection of international law, at the behest of the US government who, in many cases, are not even able to verify the identities of the men they are holding (the report suggests that some of the detainees were caught by people seeking US bounties and their identities were never properly verified).

In light of these facts it seems distasteful to hear My Bellinger claim in his next breath that “what we have said though is that we are complying with our international legal obligations.” There are a number of issues which might call into question America’s compliance with international law. As well as Guantanamo, off the top of my head, one might consider the invasion of Iraq, a sovereign state, without the mandate of the United Nations as breaching international law; or the US corporate restructuring of the Iraqi oil markets in order to facilitate US profits at both the oil head and the petrol pump; or the illegal imposition of non-negotiable terms and conditions in the documentation transferring power from Paul Bremer to the Iraqi government. There are undoubtedly more examples, but these will serve for now. Perhaps the most salient question is that of ‘Extraordinary Rendition’, or kidnap as it might more simply be known. This process involves the US illegally removing a citizen or combatant from a country where they have been detained and removing them to a third country other than the US, often covertly, where they are detained, and many would argue, tortured. Mr Bellinger attempts to explain this as follows:

“Let’s say that someone who might have been connected with the World Trade centre bombings, the London bombings, lets say that person is found in some third country, and that third country intelligence service says ‘we found this individual, he hasn’t committed a crime in our country, we’re going to expel him’, and we happen to find that in an additional country, he is wanted somewhere else. So, that person can be expelled from the country where they’re found to the country of their nationality, and that helps overall in the fight against terrorism rather than letting those people simply walk free. This is the sort of cooperation amongst intelligence services that is fairly useful.”

There are so many inaccuracies and untruths in this statement it is difficult to know where to start. Firstly, if an individual is found in one country, where he is innocent of committing a crime, but is wanted for a crime in another country there is legislation in place to deal with this – extradition. Of course the US may be loathe to pursue this particular path as it would necessitate having some evidence that would stand up in a court of law. Secondly, it is interesting to note that Mr Bellinger doesn’t claim the captured individual should be returned to the country where they are wanted for a crime, per se, but to the country of their birth. What the legal precedent for this is, or what the benefit of this is, is not clear. Though considering what we know about the extraordinary rendition flights crossing Europe to Romania and Poland from other parts of the world, it would appear that the US has been capturing huge numbers of Romanian and Polish terrorists and criminals and repatriating them to the countries of their birth!

What is perhaps most disturbing about his current trend within the US and British administrations for ignoring the precedent of international law is their own proclivities for calling on other leaders, governments and countries to uphold the rule of international law. Places like Iran, Venezuela, and Palestine currently. How hypocritical it must look to the ordinary citizens of these countries to be told to uphold the international law which the UK and US flout so openly. Worse, perhaps, for those with a sense of history. A sense of history which might extend to remembering that the US is one of only two countries to have vetoed a motion in the UN calling for all countries to uphold international law: during the US supported Contra counter-insurgency against the democratically elected Sandinista government in Nicaragua the UN proposed a motion calling on all countries (i.e. the US) to uphold the rule of international law. The US vetoed this proposal, against the wishes of every other country in the world. The same US government who ignored international law in supporting insurrections against democratically elected governments in Guatemala, El Salvador, Iran, or Chile, or who ignored international law when carpet bombing Cambodia and Vietnam (in breach of Protocol I, Art. 51 , Sec. 5a and Protocol I, Art. 57, Sec. 2b of the Geneva Convention), or who ignored international law in using chemical and biological weapons against the Vietcong (prohibited under the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare). But we are not meant to raise issues like this, are we? They’re outdated, yesterdays news, irrelevant to the ‘facts on the ground’ for the ‘war on terrorism’. But how are we supposed to combat terrorism if it is not within the framework of international law. The precise reason why we consider these people terrorist is that they go against the otherwise universally accepted notions we have of law, order, civility, and morality. How are we to combat them by disregarding our own sense of these things?

I started this rambling monologue by noting that I am not an expert on international law. So even if there are legal arguments to be made about these issues (status of captured fighters, rendition, invading foreign countries, etc), is it not the case that we should colour all our judgements with the lens of morality? However abhorrent another’s actions, however vitriolic and hateful their stated aims may be, it is imperative we treat them the same as any other member of our society. Imperative because only in being above hatred, bitterness, revenge and recrimination will we be likely to act in a just manner. And justice is supposed to be the guiding principle of our laws and international relations: it’s why they are enshrined in law and have guided national and international politics since the end of the World Wars. So how else are we to interpret the US decision to exempt certain human beings from their basic legal rights? As an attack on their human rights and as a clear sign of the disregard and disdain the US has for things it can not understand. For to deny someone their legal rights is to deny them their human rights, as human rights are enshrined in law, and to do this is to dehumanise them, to make them no more than an object, a thing. The kinds of things we find barbaric and totalitarian in the regimes around the world we criticise and censure. For what kind of country would force-feed detainees, without anaesthetic, simply to keep them alive long enough to try in a kangaroo court without knowing the charges against them or having access to a lawyer, and then execute them? The New York Times reported this week that in Guantanamo Bay hunger strikers are being strapped to chairs for hours to force-feed them through tubes, before being restrained to stop them vomiting and placed in solitary confinement for extended periods to stop them drawing encouragement from each other. It is claimed that their treatment is regularly so rough that they are left bleeding from the nose and mouth. Having been captured abroad, these men have been incarcerated (and often tortured) in situ, then hooded, bound and flown to Camp Delta, where they are placed in orange jumpsuits (contrary to Convention IV, Art. 90 of the Geneva Convention), caged, tortured further, not subject to due legal process, and then prevented forcibly from starving themselves to death, despite most having no proven links to terrorist networks or evidence of serious wrongdoing. In some cases people have been detained on a case of mistaken identity. How does denying these men their Human Rights to legal recourse, the right to life, the right to equality before the law, the right to recognized as a person before the law, the right to dignity, in short, the right to be treated as a human being help bring them to justice? How does it reflect and impact on how the UK and US are perceived abroad? How does it not play into the hands of the very people the UK and US claim to be fighting to eradicate. How does it give us a right to call on others to uphold the rule of international law? How does it give us the right to talk about freedom, justice and democracy?