One of Britain's most senior judges has issued a harsh criticism of the United States for holding terrorist suspects without charge at the Guantanamo Bay base in Cuba. Law Lord Johan Steyn called the U.S. policy a "monstrous failure of justice." This public condemnation, coming from such a prominent figure, once again raises questions about the Guantanamo Bay camp and this aspect of the U.S. war on terrorism.
Prague, 26 November 2003 (RFE/RL) -- Hopes appear to have been dashed in some British quarters that U.S. President George W. Bush would use his state visit to London last week to strike a deal on British citizens detained at the U.S. military's Guantanamo Base in Cuba.
The apparent lack of a breakthrough has prompted some, including a top British judge, to reiterate their condemnation of Washington's Guantanamo Bay policy. Law Lord Johan Steyn in a speech last night called the United States' indefinite detention of foreign prisoners without trial at its base in Cuba a "monstrous failure of justice."
The U.S. military is believed to be holding some 660 detainees -- most of them foreign citizens -- at its facility in Guantanamo Bay. The first inmates began arriving in January 2002 -- mostly from Afghanistan -- and were classified not as prisoners of war, but as "enemy combatants."
The Bush administration argues that this classification -- which has a precedent in U.S. law -- means the detainees are not entitled to the privileges accorded to prisoners of war under the 1949 Geneva Conventions. Officials say the detainees will eventually be tried, but in theory they could remain in detention -- as combatants -- until the end of the war on terrorism.
The detentions have divided the international legal community and invited criticism from many corners, including several U.S. allies.
Colin Warbrick, a professor of international law at the University of Durham in Britain, is a strong critic of the Bush policy. He says the term "war on terrorism" is a misnomer and argues that laws on "detaining combatants" cannot be applied.
"The first thing is this notion of the 'war on terrorism' -- [international] law doesn't fit with the conception of a war that is not a war between states, or possibly a war within a state, and so trying to apply the conceptions that apply to interstate war to this irregular conflict -- if that's what it is -- would inevitably be difficult." Warbrick said. "Terrorism is, in its essence -- as far as international laws are concerned -- criminal rather than an unlawful act of war."
Warbrick says the United States, from the point of view of international law, cannot arbitrarily designate foreigners "enemy combatants" as the term is not widely accepted. He says there are two legal options: designating the detainees as prisoners of war or charging them with terrorist crimes. Either way, it would mean their exit from Guantanamo -- to freedom or a court of justice.
"It seems fairly clear, from the little evidence that we've got about the people who are [at] Guantanamo, that some of them would claim to be Taliban soldiers. And it seems likely we would say that the war against the Taliban is over and if they're prisoners of war, these people are entitled to be released, unless there's evidence that they've committed crimes. And if there's evidence that they've committed crimes, then they should be charged and given the fair trial that the Geneva Convention requires," Warbrick said.
Daniel Joyner is a American legal expert who teaches at Warwick University, also in Britain. He notes that under one of the articles of the 1949 Geneva Conventions, to which the United States is a signatory, wartime prisoners must be brought before an independent tribunal so their status can be determined. He says Bush's executive order providing for the detention of "enemy combatants" at Guantanamo without such a hearing is insufficient and can be seen as a violation of international law.
"The U.S. is a signatory of these 1949 conventions and one of them specifically -- Geneva Convention No. 3 -- specifies that the classification of prisoners that are captured during an armed conflict has got to be made not just by [the] unilateral authority of [a] higher-up executive, but has actually got to be made by a competent tribunal," Joyner said.
With all the international legal complications surrounding the term "enemy combatant," why not simply move to speedy criminal trials in the United States for the Guantanamo detainees? Here too, there is one major obstacle, as Joyner explained: "So far, [the detainees] have not been recognized as being subject to the jurisdiction of U.S. federal courts, such that they could be tried in that venue."
Practically speaking, it means that the Guantanamo prisoners are in legal limbo: they are foreigners who were detained abroad, now being held at a U.S. base on foreign soil. It's unclear whose legal jurisdiction they fall under.
The U.S. Supreme Court recently agreed to examine the issue of whether U.S. federal courts have legal jurisdiction in the case of the foreign detainees at Guantanamo, but a ruling is not expected until next summer.
In the meantime, Marc Cogen, a professor of international law at Belgium's University of Ghent, defends the Bush administration's policies. He says the United States has done the best it could under difficult circumstances and says the world needs new rules to deal with the scourge of international terrorism.
"The global war against terrorism is a new phenomenon in our time and we have to address the situation entirely anew. And if international terrorist cells are operating -- which is a new phenomenon, not terrorism as such, but the international organization of terrorism -- then we have to devise rules and to interpret laws of armed conflict against this background," Cogen said.
Cogen thinks it would be better for critics of the U.S. administration's policies, especially in Europe, to take an active part in drafting new legal procedures for handling what he calls "terrorist war crimes" instead of looking to apply narrow interpretations of existing laws, which he says fail to consider the state of war at hand.
The issue of the Guantanamo detainees is not likely to be resolved soon and is likely to continue to complicate U.S. ties abroad.
Tajikistan and Kazakhstan became two more countries this week whose officials have called on the United States for the return of their citizens from Guantanamo.