(continued from last issue)
The argument that, with the destruction of the Taliban state, the nature of the conflict has changed, leads the U.S. into murky legal waters. The U.S. has unfortunately replicated the arguments of the British government during their prosecution of the Second Boer War of 1899-1902, where, following the destruction of the Orange Free State and the Transvaal Republic, Britain reclassified Boer soldiers as “rebels” who were thus ineligible for any legal niceties they had previously enjoyed as subjects of a recognized government. Even worse, in its attempts to deal with ongoing resistance, Britain adopted extreme measures—even funneling citizens of the two former states into vast concentration camps—where the families of those who continued to fight British domination were subjected to particularly harsh measures as punishment for ongoing resistance.
The name “detention center” hardly describes the true role of Guantanamo Bay. Joseph Sweeney, in a paper written for the Fordham International Law Journal in 2006, holds that the facility really constitutes a “permanent warehouse for men expected to be sources of intelligence over an indefinite period.”
Sweeney casts doubt over the legitimacy of the U.S. presence at Guantanamo, citing Article 52 of the Vienna Convention on the Law of Treaties (VCLT) regarding the validity of a treaty obtained through coercion. Article 52 may give grounds for invalidating treaties obtained in the wake of military action, including U.S. control over Guantanamo just five years after the expulsion of Spanish forces from Cuba. The real legal issue, however, lies in Guantanamo’s conversion from naval station to interrogation and, let’s be honest, torture facility.
U.S.’s supposed adherence to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture, make the treatment of the Guantanamo Bay prisoners plainly illegal. Equivocations on whether such treatment is torture will not be engaged with, as anyone claiming that beatings, food and sleep deprivation, and waterboarding do not constitute “cruel, inhuman” or “degrading” punishment, is morally vacant and best ignored.
If we ask Yasiin Bey after his demonstrative ordeal as to whether force-feeding was torture, he would not hesitate. The UN has condemned U.S. actions. In May a number of officials, from the UN Working Group on Arbitrary Detention to the Inter-American Commission on Human Rights, lashed out at the U.S. response to the hunger strikers, citing force-feeding as illegitimate and denouncing the indefinite holding of many prisoners as “arbitrary” and illegal under international law.
Yet the UN has failed to follow through with renewed, forceful criticism of U.S. intransigence, largely due to its status as a body directly dependent on an international order founded on state power. Within this setting, the nation-state remains paramount over the actual human person.
Human rights law is always going to find itself in a dilemma: it recognizes that, as in Guantanamo, the majority of human rights abuses are committed by states, yet due to their status as prime actors in legal and political enforcement, states are viewed as safeguarding the rights of individuals. The end result is an impotent system where human rights law simply appeals to national states to behave, and when infractions occur, seeks to shame offending governments into compliance. Such appeals can fall on deaf ears, as is the case of the U.S. and its now notorious lack of respect for international legality.
My decision to go on hunger strike points to the need for new forces to defend the idea of universal human rights. Although the number of inmates refusing to take food at Guantanamo has recently declined substantially, solidarity remains a vitally important factor, where those enduring the unendurable can gain support from those empathizing with their plight. The solidarity gained from a mutual display of hardship needs to be further elaborated, politically, morally and philosophically, into a potential alternate model for the implementation of human rights. Such a model would go beyond the absurd method of petitioning and beseeching the primary abusers of human well-being, the capitalist state, and instead reconstitute society where the human subject, not the profit motive or legal abstractions, are placed at the heart of deliberations.