April Issue 2005

Camp X Ray at Guantánamo Bay is, perhaps, the most mysterious, tightly secured prison with multiple satellite surveillance systems. This top secret detention centre houses the inhabitants of some 40 odd countries from six continents. The detainees have not been charge-sheeted for their crimes, and a list of their names and nationalities has yet to be made public.

The Pentagon has kept a very tight lid on news pertaining to the detainees; only the identities of those who have chosen to correspond through the Red Cross are known.

On February 4, 2004, however, an American news service, the United Press International (UPI), released a groundbreaking report with a breakdown of the nationalities of prison inmates at Guantanamo. At least 160 of the 650 detainees — almost a quarter of the total number — are from Saudi Arabia. This includes Mohammad al-Kahtani who had allegedly planned to be part of the September 11, 2001 hit squad. Other nationalities include 85 Yemenis, 82 Pakistanis, 30 Jordanians and 30 Egyptians. The Afghans are the fourth largest nationality with 80 detainees. The inmates of the notorious prison even include a member of the Bahraini royal family.

What is relatively unknown is the fact that some of the suspected terrorists are detained by US forces at several other points around the world as well, including Diego Garcia in the Indian Ocean and the Bagram air force base outside Kabul. However, Camp Delta, the US detention facility in Guantanamo, has attracted the most media attention and international condemnation.

The location of Camp X-Ray and Camp Delta is significant because Guantánamo Bay has been leased from Cuba and is only nominally subject to Cuban authority. The United States courts have ruled that persons detained at Guantánamo Bay do not have the access to American courts that a person detained within the US has. The original rulings were made for Cuban and Haitian refugees found on the high seas and sent to Guantánamo where they attempted unsuccessfully to apply for asylum and administrative hearings to avoid repatriation, but the rulings are now applicable to other prisoners in Camp X-Ray, according to legal precedent.

No American national is detained at Camp X-Ray, possibly because the US administration feared that holding American citizens at the site would increase the chances of US Courts being authorised to have the authority to review the cases of all detainees within the site. The Supreme Court eventually gave a ruling to this effect in June 2004.

The official Camp X-Ray, the first improvised detention centre constructed in January 2002 to house individuals detained in Afghanistan was shut down in April 2002, and all prisoners were transferred to Camp Delta. However, the term Camp X-Ray has come to be used synonymously for the entire facility where prisoners from the time of the U.S. invasion of Afghanistan are detained. The detention centre also holds seven Arab men handed over to the US authorities in Bosnia, as well as five individuals arrested in Malawi in 2003. Among the 85 Yemenis is an individual who was arrested in Sarajevo. The Yemenis, however, claim that these figures are not accurate; the Americans have twice that number in their custody.

Jordan, another close ally of the US in its war on terror, has 30 of its citizens detained in Camp Delta, as does Egypt. Morocco has 18 nationals and Algeria has 19 prisoners in Camp Delta, six of whom were arrested in Sarajevo.

Kuwait has 12 citizens in Guantánamo, while Chinese nationals number around 12, all ethnic Uighurs. Tajikistan and Turkey have 11 citizens each while nine British Muslims are also caged in this notorious prison.

Tunisia and Russia have eight nationals each. The Russians citizens are not ethnic Russians but belong to the scattered and oppressed Muslim community. France and Bahrain have seven nationals while Australia and Canada have two each in the camp. Interestingly, Australian David Hicks is one of the most high profile prisoners in Camp Delta. A convert to Islam, Hicks fought as a jihadi in the Balkans before shipping out to Afghanistan.

The UPI study revealed that two Chechens, two Uzbeks, two Syrians, two Georgian and two Sudanese nationals are also imprisoned in Guantánamo. Bangladesh, Belgium, Denmark, Germany, Iraq, Kenya, Libya, Mauritania, Qatar, Spain and Sweden each have a single citizen in Camp Delta.

The US government has classified the detainees in Camp X-Ray as ‘illegal combatants,’ rather than prisoners of war (POWs), which means that they do not have to be conferred the rights granted to POWs under the Geneva Conventions. The US government justifies this classification on the ground that they do not have the status of either regular soldiers or guerrillas, and they are not part of a regular army or militia.

By refusing to apply the Geneva Conventions fully, the United States has created a legal vacuum over the situation prevailing in Guantánamo Bay, where the living conditions are appalling. Until August 2003, at least 29 inmates of Camp X-Ray had attempted suicide to protest the abysmal conditions prevailing in the detention centre.

Serious human rights questions are emerging from statements issued by assorted prisoners released thus far. The former inmates of Guantánamo Bay claim that false confessions were extracted from them under duress, in conditions which amounted to torture. They reported increased periods of solitary confinement for the detainees, severe beatings, sleep deprivation, prolonged confinement in uncomfortable positions, prolonged hooding, sexual and cultural humiliation, forced injections, and other physical and psychological torture during their detention in the camp.

Though the US government has denied the charges, The Washington Post published a classified document confirming the Pentagon’s approval of using sleep deprivation, exposure to hot and cold, bright lights, and loud music during interrogations at Guantánamo. The International Committee of the Red Cross (ICRC) first inspected the camp in June 2004 and in its confidential July 2004 report leaked to The New York Times in November, Red Cross inspectors accused the US army of using “humiliating acts, solitary confinement, temperature extremes, use of forced positions,” against prisoners. The inspectors had concluded that “the construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.”

After going through such torture and humiliation, several of the freed prisoners have turned more anti-American than before and some have even resumed their links with the Taliban. Abdul Ghaffar, captured in Afghanistan in December 2001, was one of the 23 prisoners released from Camp X-Ray in late January of 2004. After his release, he rejoined the remnants of the Taliban and was killed in a gunfight in late September of 2004. Abdullah Mehsud, another high profile anti-US militant from the South Waziristan Agency, who was captured in Afghanistan in December 2001 after surrendering to Abdul Rashid Dostum, returned to his position as an Al-Qaeda field commander and masterminded the kidnapping of two Chinese engineers in Pakistan’s South Waziristan region. Mehsud also claimed responsibility for the bombing at Islamabad’s Marriott Hotel in October 2004. The blast injured seven people, including a U.S. diplomat, two Italians and the Pakistani prime minister’s chief security officer. There are unconfirmed reports that Mehsud was killed in the Pakistan army’s latest operation in the South Waziristan agency.

The Hague Convention of 1907 established some rules for recognising legal belligerents. The laws, rights, and duties of war apply not only to armies, but also to the militia and volunteer corps who fulfill certain conditions, namely that they are commanded by a person responsible for his subordinates; they have a fixed distinctive emblem recognisable at a distance; they carry arms openly; and conduct their operations in accordance with the laws and customs of war. The Third Geneva Convention: Article 4-A of the Geneva Convention Relative to the Treatment of Prisoners of War revision of 12 August 1949, clarified the status of irregulars. Prisoners of war are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces;

(2) Members of other militias and volunteer corps, including those of organised resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfill the following conditions: namely that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign recognisable from a distance; that of carrying arms openly; that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognised by the detaining power.

(4) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had the time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Mercenaries do not have the full protection of the Third Geneva Convention.

The legal question on which the United States and many of its allies differ is the status of al-Qaeda members captured in combat. Taliban members could be and were released from US custody, but the US does not recognise al-Qaeda members as falling under this convention.

According to the Conventions, a competent tribunal must determine whether the Guantánamo detainees have prisoner-of-war status or not. The US has yet to comply with this requirement.

Under international law, POWs can be held until the armed conflict has ended. The US claims to be applying this rule to the people it is detaining. Once the war on terrorism has ended, the US is obliged to return them to their countries of origin or charge them with crimes. Since the ‘war on terror’ is not a declared war, but simply a phrase used to describe military-led, anti-terrorist operations, the U.S. probably believes that it can hold the detainees indefinitely. Another reason why detainees have not been declared POWs by the US is that under the Hague and Geneva Conventions, prisoners of war are not required to give any more information than their name, rank, serial number, and date of birth, which are required for registering POWs with the International Committee of the Red Cross. However, the US holds intelligence gleaned from the detainees at Guantánamo as being of high value. Without the Geneva Conventions’ legal protection, and without falling under the penumbra of United States criminal law and the Fifth Amendment right against self-incrimination, the US wants to make the detainees talk.

The United States Supreme Court announced on November 10, 2003, that it would decide on the appeals filed by Afghan war detainees, challenging their continued incarceration at the camp as being unlawful. On June 28, 2004 the Court ruled that ‘enemy combatants,’ such as those being held in Guantánamo, could challenge their detentions but they could also be held without charges or trial.

Though a military court started legal proceedings into the cases of the Guantánamo Bay detainees on November 8, 2004, a federal court halted the hearing of Yemeni Salim Ahmed Hamdan’s case. Hamdan, 34, was to be the first Guantánamo detainee to be tried before a military commission. Judge James Robertson of the US District Court for the District of Columbia ruled that a competent tribunal had not found that Hamdan is not a prisoner of war under the Geneva Conventions. Washington federal judge Joyce Hens Green ruled on January 31, 2005 that the military trials held to ascertain the status of the prisoners in Guantánamo as ‘enemy combatants’ were ‘unconstitutional,’ and that they were entitled to the rights granted by the Constitution of the United States of America.

Recently, the head of the ICRC, Jakob Kellenberger, met US President George W Bush to raise concerns about the detainees at Guantánamo Bay. ICRC officials regularly visit the US naval base in Guantánamo Bay, Cuba. The meeting, according to the ICRC statement, “focused on US detention,” as well as the main challenges facing the organisation in armed conflicts around the world. In his desperate bid to persuade the Americans to accept the Geneva conventions for the detainees, the ICRC chief also met US Secretary of State, Condoleezza Rice, and Defense Secretary Donald Rumsfeld.

Guantánamo — where many of the inmates have been held without any charges since the 2001 invasion of Afghanistan — is not only a permanent scar on the face of the United States but is also seen as a breeding ground for legendary terrorists such as Abdullah Mehsud and Abdul Ghaffar.

The American way of curbing terrorism contravenes faith in international law and the sovereignty of nation-states. Belying the principles of logic and humanity, the black hole of Guantánamo ignores the cries of hapless humanity spread over six continents of the world.