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."
Status of the Detainees
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.
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.
- 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
- 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.
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
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.
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.
Legal Status of Guantanamo Bay
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.
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.
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…"
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:
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
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
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."
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.
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.
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.
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.
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.
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.
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
this context, the good offices of the UN Secretary General or of
the Secretary General of the OAS could also be requested.
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."
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