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by Alfred de Zayas

Guantánamo has many faces. For some it conjures the "Guantanamera" guajira (peasant woman), sung to the verses of the leader of the Cuban war of independence of 1895, the lawyer and poet Jose Martí. To others it is the tropical sugar-mill town of some 200,000 inhabitants in the easternmost province of Cuba. To most Americans "Gtmo" only means the Bay and the naval base on it, the oldest outside of the United States, which was occupied by the US during the Spanish-American war of 1898 and subsequently leased by the US from Cuba pursuant to a 1903 lease agreement. One of Cuba’s best ports, Gtmo occupies an area of 117.6 square kilometres (larger than Manhattan Island) for which the United States used to pay an annuity of $2,000 (increased to $4,085 in 1934). Cuba, however, does not cash the annuity checks and instead has repeatedly asked the United States since 1959 to dismantle the base and leave, since the lease had been imposed by force, and such arrangements are deemed invalid under modern international law. For Amnesty International and Human Rights Watch, Guantánamo means the "legal black hole" for 660 internees from 42 nations, some of them Taliban fighters, suspected terrorists and other persons captured in Afghanistan, Pakistan, Bosnia and other countries and flown to Cuba, thousands of miles away, for internment in Camp X (now Camp Delta) nearly two years ago. For the British senior Justice Lord Johan Steyn, Guantanamo entails "a monstrous failure of justice."

Legal Status of the Detainees

As to the legal status of the detainees, the International Committee of the Red Cross observes that essentially they "have been placed beyond the law." But is there such a thing as a "legal black hole"? I submit that there is not. As a corollary to Baruch Spinoza’s postulate that "nature abhors a vacuum," I would submit that law abhors black holes.

In the case of Guantánamo, there are three legal regimes that apply, but are being violated by the U.S. with impunity:

The international human rights regime. The United States is bound by the International Covenant on Civil and Political Rights and by the Convention Against Torture, both of which require protection of all persons "within the jurisdiction" of a State party, notwithstanding whether they are citizens or whether they are formally within the sovereign territory of the State. The U.S. has made no relevant reservations or derogations. Thus, the detainees have many rights under international law, including the right to challenge their detention, access to legal counsel, due process of law and humane treatment. The international human rights regime applies both in times of war and in times of peace.

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The international humanitarian law regime. Most of the internees qualify as prisoners of war under article 4 of the Third Geneva Red Cross Convention of 1949. Article 5 further stipulates that if there is doubt about their status, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Neither President Bush nor Secretary Rumsfeld is competent under the Convention to make a determination of prisoner of war status. In addition to the human rights outlined above, the Geneva Convention as lex specialis stipulates special POW rights, including the right to release and repatriation at the close of hostilities (article 118). Civilians who were detained during the war in Afghanistan have rights under the Fourth Geneva Convention of 1949.

The US Constitution and Bill of Rights also apply, since neither instrument restricts its scope of application to territories formally under US sovereignty, excluding e.g. military bases abroad. Indeed, the US District Court for the Eastern District of New York extended the protection of the Bill of Rights to the Haitian refugees interned in Guantánamo in the 1990’s (Haitian Ctrs. Council v. Sale). The Bush Administration, however, refuses to apply the Bill of Rights to the current Guantánamo detainees, relying on the obsolete 1950 Supreme Court judgment in Johnson v. Eisentraeger, which, hopefully, will be overturned by the Supreme Court in 2004. In the landmark dissenting opinion in Johnson, Justice Black wrote: "Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts in my judgment cannot be constitutionally abridged by Executive or by Congress. I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them." The cases currently pending before the Supreme Court concerning 16 Guantánamo detainees provide the opportunity for the Supreme Court to align itself with the 1950 dissenters and to reject the anachronistic Johnson precedent. It is the function of the Supreme Court to interpret the Constitution in the light of today’s legal order, which includes international law. It is worth recalling that according to article VI of the United States Constitution, treaties (such as the human rights conventions) are "the supreme law of the land," and pursuant to the 1900 Supreme Court judgment in the Paquete Habana case, "International law is part of our law, and must be ascertained and administered by the courts of justice." In the light of this principle, prior Supreme Courts have reviewed and reversed obsolete precedent, e.g. when the racist 1896 Supreme Court judgment in Plessey v. Ferguson had to be overturned.

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Thus, it is clear that there is no "legal black hole." The norms exist. As elsewhere with American unilateralism, including the war against terrorism, we are confronted with the challenge of grave breaches of international law perpetrated with impunity. The issue remains one of non-enforcement of norms, because of a lack of effective sanctions.

What is happening is so serious, that former President Carter articulated the general malaise of many informed Americans over the aberrant situation that the Guantánamo internees "have been held in prison without access to their families or a lawyer, or without knowing the charges against them. We’ve got hundreds of people, some of them as young as 12, captured in Afghanistan, brought to Guantánamo Bay and kept in cages for what is going on two years. It’s difficult for international aid workers to spread the message of human rights to places like Cuba, Africa and the Middle East when the US government doesn’t practice fairness and equality." (Carter Center, 15 Sept. 2003). Carter’s words deserve reflection about the rule of law and about the values which we Americans espouse. What is happening in Guantánamo reminds us unpleasantly of military-junta policies, unworthy of a democratic nation like the United States, which could and should be the example for the world.

The Nobel peace laureate Jimmy Carter has not tired of voicing his concern over the scandal of Guantanamo "because this is a violation of the basic character of my country and it’s very disturbing to me" (Carter Center, 11 November 2003). It should disturb the conscience of all Americans, because grave crimes are being committed in the name of the United States. As an American I too protest and say: not in my name.

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The Legal Status of Guantanamo Bay

Having determined that the detainees in Guantánamo have status in international law, we turn to examine a question largely neglected in the media: the status of Guantanamo Bay in international law.

It is indeed an anomaly that the United States has occupied this Bay on Cuban territory for 105 years, and under lease for 100 years. Most lease agreements are of limited duration, and the longest last for 99 years. We recall that the U.S. occupation of the Panama Canal Zone (also under a treaty of 1903) ended in 1977, the British occupation of Hong Kong in 1997 and the Portuguese occupation of Macau in 1999. The return of many colonial and other occupied territories to the rightful sovereigns and peoples has proceeded in keeping with the principle of self-determination and the process of de-colonization after World War II.

With regard to Guantánamo, however, the United States claims to have a perpetual lease. Admittedly, under article 1 of the 1903 agreement, Cuba granted the lease "for the time required for the purposes of coaling and naval stations." However, under article 3: "While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement, the United States shall exercise complete jurisdiction and control over and within said areas..." (emphasis added).

Since 1959 Cuba has argued bi-laterally and before the United Nations that the 1903 and 1934 lease agreements are invalid under modern international law, and that Guantanamo was "usurped illegally against the wishes of the Cuban people." On 14 January 2002, shortly after the United States started transferring Taliban detainees to Guantánamo, the Government of Cuba recalled that:

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"The Platt Amendment, which granted the United States the right to intervene in Cuba, was imposed on the text of our 1901 Constitution as a prerequisite for the withdrawal of the American troops from Cuban territory. In line with that clause, the aforementioned Agreement on Coaling and Naval Stations was signed on February 1903….In due course… the illegally occupied territory of Guantánamo should be returned to Cuba."

Cuba, of course, has no possibility to expel the United States from Guantánamo. It can only protest, and its protests have the function in international law of frustrating any eventual United States contention about putative Cuban acquiescence, and thus prevents the US from being able to claim sovereignty over the territory by virtue of occupation and prescription.

Cuba further argues that the lease agreement is void because of material breach by the United States. Article 1 and 2 of the 1903 agreement clearly stipulate the uses for which the lease was granted, namely "as coaling or naval stations only, and for no other purpose." (emphasis added)

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Pursuant to article 60 of the Vienna Convention on the Law of Treaties, a treaty is voidable by virtue of material breach of its provisions. Surely the use of the territory as an internment camp (for 36,000 Haitian refugees in the years 1991 to 1994, and 21,000 Cuban boat people in the 1990’s), or as a detention and interrogation center and prisoner of war camp where trials and even executions are envisaged is wholly incompatible with the object and purpose of the treaty and entails a material breach of the agreement justifying unilateral termination by Cuba.

Another serious concern is that, according to reliable sources, gross violations of international human rights norms and international humanitarian law are occurring in the territory. If indeed torture is being practiced, as a number of released detainees have stated and as Richard Brourke, the Australian lawyer of several detainees maintains, such gross violations of human rights would entail an even graver breach of the lease agreement justifying its immediate termination.

There are other related legal questions that must be answered. For instance, is the continued occupation of Guantánamo Bay by the United States compatible with the United Nations Charter, in particular in the light of article 2, paragraph 4, of the Charter which prohibits the use of force? Is it compatible with article 1 of the International Covenant on Civil and Political Rights, which stipulates the right to self-determination and the right to dispose of a people’s natural resources? Is it compatible with the United Nations General Assembly Resolution 2625 (XXV) of 24 October 1970, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations? This famous Friendly Relations Resolution, adopted without a single dissenting vote, strongly reaffirms the principle of equal rights and self-determination of peoples and the principle of the sovereign equality of States.

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Peaceful Solutions

There is an international law obligation to negotiate, and pursuant to article 2, paragraph 3, of the United Nations Charter, disputes must be settled by peaceful means. Thus, it would appear appropriate to submit the various issues in dispute to binding arbitration, or to adjudication by the International Court of Justice, if indeed the disputes cannot be settled through bi-lateral negotiation.

Any such tribunal would have to interpret the meaning of the term "sovereignty," as it appears in article 3 of the 1903 lease agreement. Yet another term requiring interpretation, is the word "continued," since the agreement provides for the "continued ultimate sovereignty" of Cuba. The question is thus whether sovereignty can be trumped by virtue of a lease agreement that does not state a specific date of termination. Many international lawyers believe that the possibility of termination must be interpreted into such agreements. Even the Panama Canal Treaty of 1903 that provided for transfer of "sovereignty" to the United States "in perpetuity," required renegotiation and ended in 1977.

Both with regard to the distressing situation of the detainees and the continued occupation of Cuban territory by the United States, the UN General Assembly could request an advisory opinion from the International Court of Justice, for instance on the application of the Covenant on Civil and Political Rights and the Geneva Conventions in Guantánamo, and on the consequences in international law of the continued occupation of Guantánamo by the United States. The famous ICJ advisory opinion in the South West Africa /Namibia case was an important nail in the coffin of Apartheid and accelerated the international pressure leading to Namibia’s independence.

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Since diplomatic intercession by States whose citizens are being held in Guantánamo has met very limited success, some of these States would be well advised to invoke the inter-State complaints procedures under article 41 of the Covenant on Civil and Political Rights and under article 21 of the Convention against Torture. The United States has recognized the competence of the UN Human Rights Committee and of the UN Committee against Torture to entertain inter-State complaints.

In this context, the good offices of the UN Secretary General or of the Secretary General of the OAS could also be requested.

Until these problems are solved, Guantánamo will remain an international challenge to the rule of law and a twenty-first century aberration. As the former prosecutor at the International Criminal Tribunal for the Former Yugoslavia, Richard Goldstone, said in a BBC interview on 5 October 2003: "A future American President will have to apologize for Guantánamo."

December 31, 2003

Dr.iur. et phil. Alfred de Zayas [send him mail] is Visiting Professor of International Law at the University of British Columbia. He is Former Secretary, United Nations Human Rights Committee and Former Chief of Petitions at the Office of the UN High Commissioner for Human Rights in Geneva. This article originally appeared on December 29, 2003, in the Frankfurter Allgemeine Zeitung.

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