Guantanamo is a portion of Cuban territory ceded through a bilateral treaty by the state of Cuba to the United States in 1903. The territory was originally leased in perpetuity for use as a naval base following the Spanish-American War in the late 19th century that made Cuba an officially independent state.
However, the US soon began to use the territory leased by the Cubans as a military and not a naval base, violating the terms of the agreement.
Therefore, since 1903, the US has obtained, on perpetual lease, the Cuban territory of Guantánamo, having de facto jurisdiction and full control over it (although formally sovereignty remains in the hands of Cuba), transforming it from a naval base into a military base.
The situation became more complex when, in 2002, the US administration, then led by George W. Bush, opened a prison camp at the Guantánamo military base, designed to accommodate terrorism suspects.
It is worth analysing the context: just one year earlier, on 11 September 2001, the United States had suffered the devastating terrorist attack on the Twin Towers, which shook the entire West.
Therefore, from the beginning of the 2000s, Western states began to see Islamic terrorism as a very dangerous threat, and sought to strengthen their defence instruments. In this wake, the Bush administration opened the Guantanamo prison camp; however, this choice was not without its contradictions: while the United States' desire to take concrete action against terrorists is understandable, it is also true that the construction and exploitation of this 'super-prison' are not legitimate from the point of view of international law in many respects, first and foremost the violation of human rights.
Under humanitarian law (the branch of international law that applies in situations of conflict), with specific exceptions, all persons who, while legitimately participating in the conflict, are captured by the other belligerent party are entitled to the status of prisoners of war. This status confers on those captured several additional rights enshrined in the Third Geneva Convention that are not available to ordinary prisoners. These include, for example, the right not to be tried for murder by the ordinary courts of the detaining state. The rationale behind this rule is that those who participate in the conflict (and who are internationally recognised as ''legitimate combatants''), unlike ordinary prisoners, cannot be punished for their actions, which fall within the scope of military exercise.
In this particular case, the problem that comes to the fore is that this Convention is only applicable to international conflicts, i.e., those conflicts which, under international law, are ongoing between two or more states.
If a state is the target of a terrorist attack, it is not an international conflict, but a non-legal situation known as 'internationalised conflict' or 'asymmetrical war'. These concepts mean a conflict between a state and a non-state entity (e.g., a terrorist organisation). It follows that, since the terrorist organisation is a non-state entity, the conflict between state and terrorist organisation is not an international conflict and therefore the Geneva Convention does not apply. Currently, according to international law, captured terrorists are not considered as prisoners of war because the practice and opinio iuris in this regard differ from state to state. It is therefore considered that they are not entitled to POW status because they are not participating in an international conflict and are therefore not recognised as legitimate combatants.
The situation at the Guantánamo prison is peculiar and, in many ways, violates international law and, more specifically, humanitarian law.
As mentioned above, following the attack on the Twin Towers, the United States, under the George W. Bush administration, built the prison in Guantánamo on Cuban territory but under US control and jurisdiction, bringing in those who were taken prisoner in Afghanistan and who were supposed to have links with Al Qaeda or the Taliban.
The critical point is that when these prisoners are taken to Guantánamo, since they are not 'lawful combatants' they are not recognised as prisoners of war and are therefore deprived of the legal protection that comes with that status. For this reason, the Bush administration created the figure of the 'enemy combatant' to refer to this category of prisoners. This term refers to prisoners who do not fall under the legal protection of the Third Geneva Convention or even under the protection of the normal civilian population.
This creates a kind of 'limbo' in which prisoners who end up in Guantánamo are not treated as prisoners of war, nor are they treated as ordinary prisoners who are clearly entitled to human rights protections under the domestic law of the state holding them.
The United States considers that in Guantánamo prison, since it is not US territory, US domestic law could not be applied, even though, under the Cuba-US treaty, the US had obtained jurisdiction and full control over the territory. Moreover, under international law, each state is responsible for persons under its jurisdiction regardless of whether the citizens in question are nationals of the state in which they are located. It follows that justifying the non-application of guarantees of fundamental human rights merely because the prisoners are not being held on American soil is an argument that does not hold water in law.
While detained at Guantánamo, prisoners, often imprisoned on suspicion of affiliation with those responsible for the 11 September terrorist attacks, face staggering violations of their rights. Firstly, they have no right to a fair trial and serve endless sentences without any proven involvement. Secondly, these prisoners are subjected to scientifically organised torture. In fact, two American psychologists, Jessen and Mitchell, were commissioned by the CIA to devise advanced interrogation techniques including waterboarding, isolation in tiny cells, beatings and sleep deprivation. The above techniques all amount to acts of torture and are in clear violation of countless international treaties, most notably the 1984 New York Convention against Torture, ratified by the US on 21 October 1994.
The Guantánamo prison, which remains open to this day despite the Obama administration's executive order to close it, represents an unacceptable failure of many instruments of international law and is a sad reality that deserves to be known.
The USA, known as the exporter of freedom in the world and as the "cradle of democracy", applies torture in the 21st century by seeking legal loopholes and untenable justifications.
Translated by Francesca Cioffi
Original version by Alice Stillone