The United Nations and other international organisations including the International Committee of the Red Cross have stated repeatedly that indefinite detention is illegal under international law; still it is the determined bitter fate of 33 men in the detention camp at Guantánamo Bay. The future of these so-called “unlawful combatants” remains obscure as well as the closing date of the military prison. Consequently, the legacy that Guantánamo bears clearly damages international humanitarian law and international human rights to a great extent.
Currently, there are 122 detainees at Guantánamo Bay, of which 106 are imprisoned by now for more than ten years. The detainees coming from countries such as Yemen, Afghanistan, and Saudi Arabia are accused of being involved in the 9/11 attacks. However, they have no prospect of trial, because there is not enough evidence, which can be used in front of courts or information is based on torture.The current situation poses a legal standoff, which restricts any release or reallocation of detainees.
The US justifies the detention with the international law of war, which allows detaining combatants without charge in order to keep them away from the battlefield. The Bush Administration stated that these detainees are not entitled to the protection of the four Geneva Conventions and that they can be held prison until the Global War on Terror is over. However, the date for that to happen is indefinite. Though Obama has the intention to close Guantánamo Bay, he still follows Bush’s policy of the Authorization of Military Force that supports the indefinite detention and makes its “lawful” determined by the executive branch – not by the judiciary. Moreover, there have been four significant decisions ruled by the US Supreme Court such as Hamdam vs. Rumsfeld (2006) holding that detainees cannot be held without trail and that constitutional habeas corpus protection applies to them. However, the Congress and executive branch have not yet implemented these decisions. Additionally, the fact that some detainees are held in detention due to conspiracy and material assistance, which are no defined war crimes, complicates the legal standoff even further.
Due to international criticism there have been several attempts to “re-brand” the prison. In 2007, military commissions were established by the Bush administration in order to provide criminal trials for detainees based on the Nuremberg trails after World War II. However, their success is rather limited and the processes are criticized. Another attempt of “re-branding” the prison are official Guantánamo tours for the public. During these tours, the detention camp is represented as “safe, humane, legal and transparent”. In particular, it is highlighted that most detainees are better off than prisoners in normal US prisons. For example, they receive a high amount of high-quality food leading to an obesity epidemic in Guantánamo. Consequently, the majority of US citizens thought that prisoners at the detention camp were treated better than they deserve. Another central point of criticism was force-feeding of detainees that were on hunger strike. The international community condemned it as a violation of the Common Article III of the Geneva Convention and the Convention against Torture. During the official Guantánamo tours it is explained that detainees even receive their favorite flavor butter pecan when they are force-feeded, which is another attempt of making these procedures legitimate. In November 2014, the US acknowledged that the Convention Against Torture applies to detention camp in Guantánamo Bay. However, this decision was made exactly 12 years too late.
Camp X-ray, which has become a synonym of Guantànamo Bay, marked by open-air cages in which orange-suited detainees were held is a tangible symbol for US hypocrisy and makes clear that a “Guantánamo” is no solution against terrorism. In particular, in light of the latest reports from a former ISIS hostage, who stated that ISIS builds up parallel “Guantánmos” using orange suits and open air cells for captives, this becomes clear. Guantánamo is part of the construction of the new security environment created after 9/11, a world in which Guantánamo makes sense and appears to be logical. The tours and the military commissions, building part of the narrative of Guantánamo, are designed to create security. However, it destroys the alignment between security and human rights.
From a realist perspective, it is irrational that any further detainees will enter Guantánamo Bay since it is not favourable for the reputation of any US presidency. Moreover, the costs for a single detainee amount to more than $ 3 million per year. Thus, an extension of Guantánamo is unlikely to happen, however; the closing remains a legal challenge as well as the future of the 122 detainees. A further problem is that there are not a lot of countries that are willing to take detainees. The situation will not be changed by any international organization but by change of society that has to play a significant role in order to remind the world that Guantánamo exists. However, a change is difficult to achieve since efforts made by Obama are still impeded by the Congress. All in all, the US that has an enormous influence on international human rights regimes and other states’ behaviour, damages the realignment of human rights and security by setting a dangerous precedent of the application of the Geneva Convention.