Modern History
The US launched the “war on terror” in response to the 9/11 attacks in New York City in 2001. As well as the countless casualties of its multiple wars, many men, women and children have been detained as terrorist suspects, particularly in Afghanistan, where more than 50,000 people were held in the first three years of the war, and Iraq, where at least 100,000 were detained during the war. Many more were detained worldwide under the CIA’s global kidnap and torture extraordinary rendition programme. Lacking basic human and due process rights, such as access to medical care and lawyers, the “terrorist” label dispensed of prisoner rights and sanctioned indefinite arbitrary detention and torture.
Of these prisoners, in Afghanistan and victims of extraordinary rendition, around 800 men and boys arrived at the extralegal Guantánamo Bay detention centre between 2002 and 2008 for processing and possible prosecution. Held outside the reach of the law, they were labelled “enemy combatants”, yet 86% of prisoners at Guantánamo were not engaged in combat or captured on the battlefield: they were sold to the US military. Documents published in 2011 by WikiLeaks revealed the poor intelligence that led to detention in many cases.
In 2004, the US Supreme Court ruled that Guantánamo prisoners could bring habeas corpus cases before the US courts to challenge their detention. However, prisoners were more often released through diplomatic negotiations between the US and their home countries or host third countries, in the case of prisoners whose terrorist designation and the US’ wars in their countries had effectively rendered refugees.
Today, as the extralegal Guantánamo Bay prison camp turns 20, 39 prisoners remain. Although afforded more rights and recognition than any of the US’ other war on terror prisoners, justice remains absent for Guantánamo’s past and present prisoners and other victims of the US’ crimes against humanity. Nor has there ever been justice for the victims and families of the 9/11 attacks either, in whose name the war on terror was launched.
Guantánamo “justice”
There has never been any apology for the extralegal detention of prisoners at Guantánamo, nor compensation or financial support, particularly for those dispatched to third countries where they find themselves isolated and living in poverty. No rehabilitation or redress has been offered, a right of survivors of torture, who are left to deal with the severe painful physical and psychological scars of detention alone.
More importantly, no “senior government officials have been held accountable for the wrongful detention and torture at Guantánamo”. Instead, potential war criminals have been rewarded with the highest position in the CIA and offered book tours to defend and promote their activity. Rather than being put on trial for their own nefarious actions, they are invited to give evidence defending their actions in prosecutions that rely on the torture programmes they oversaw and designed. The only CIA operative ever to be jailed, in Portugal in 2017 pending extradition to Italy to serve her 2009 sentence for a 2003 rendition in Milan, was a low-level operative who had her sentence reduced.
At Guantánamo, the US set up a military commission system to offer a pretence of purpose and justice. An ad hoc Kafkaesque process, the system has thus far produced only one final conviction; appeals in some cases have been on hold for years. The military commission’s few achievements include the only trial and conviction, through a secret plea bargain, since World War II of a minor tried as an adult in 2010.
At his sentencing hearing in October 2021, almost a decade after he was convicted in a secret plea bargain, CIA rendition and torture survivor Majid Khan became the only person to provide some details of the physical, psychological and sexual torture he faced in a 39-page statement read out in court, the content of which shocked his military jurors.
At a Senate hearing on closing Guantánamo in December 2021, Chief Defense Counsel for Military Commissions Brigadier General John Baker “argued that the ongoing cases must be brought to “as rapid as a conclusion as possible […] Notice I don’t say as just a conclusion as possible. It is too late in the process for the current military commissions to do justice for anyone.”
Some efforts
No prisoners held at Guantánamo are US citizens, although the US has detained its citizens elsewhere under the war on terror. Both detention under and the war on terror itself would not have been possible without the active participation of the US’ allies worldwide. Consequently, efforts have been made to investigate and prosecute states, corporations and individuals that have been involved; a small number of prosecutions continue to plod slowly through the judicial system after many years.
Efforts at supranational level have been more successful such as investigations by the Council of Europe and the European Parliament, and prosecutions at the European Court of Human Rights in Strasbourg against CIA torture collusion by Macedonia, Poland, Lithuania and Romania. Investigations by individual states into their own torture involvement and war crimes are often less successful, with findings of no wrongdoing or ending in private settlements with victims. Investigations are ongoing in some countries, such as Poland and Scotland.
At the same time, however, courts both in and outside of the US continue to protect the US and its allies against prosecution for crimes against humanity. In January 2021, the French Supreme Court dismissed a torture claim by two former Guantánamo prisoners to prosecute US officials in France under the principle of universal jurisdiction, claiming that such matters fall under state sovereignty.
Imperialist justice
Recent decisions by the International Criminal Court (ICC) in The Hague, which also turns 20 this year, endorse and offer impunity for the war crimes of western powers. When Joe Biden lifted Trump’s sanctions on ICC staff following the former prosecutor’s decision to include its war crimes in an investigation into Afghanistan, his administration voiced its disagreement with the Court’s decision. However, in September 2021, the new prosecutor decided to drop the US’ actions from the Afghanistan investigation to focus on the Taleban and ISIS instead.
More worrying is a decision, in a case concerning Mali, to not exclude evidence allegedly obtained through the use of torture, the kind of ruling one might expect from the Guantánamo military commissions. Given that torture is a crime the ICC prosecutes, this decision is even stranger.
Compounding these decisions, in late 2020, the former prosecutor decided not to investigate British war crimes in Iraq, even though her office had found “that there is a reasonable basis to believe that members of the British armed forces committed” war crimes and that the lack of prosecutions over the past decade is “a result that has deprived the victims of justice”.
This decision was made in spite of the fact that at the same time the UK government was tabling the Overseas Operations Bill (now 2021 Act), which included clauses that offered UK military personnel impunity from “prosecution against involvement in war crimes involving torture, genocide or crimes against humanity”. United Nations experts found the “bill “particularly alarming” in light of a 2018 parliamentary report that found evidence British Defence personnel had been involved in enforced disappearances, torture and ill-treatment of suspects as part of the U.S. detention and rendition programme”. Although these clauses and others allowing impunity for rape as well were later removed, the Act remains problematic as its bars civil claims against UK forces relating to overseas operations after 5 years.
The Gap Widens
Guantánamo Bay and the war on terror have not created a two-tier or parallel justice system but a no-justice system, in spite an international legal framework of protections that allows no exceptions, in the case of torture, for example. Practices at Guantánamo Bay have become normalised and watered down into domestic legal frameworks.
In spite of the prisoner population decreasing and Guantánamo Bay having lost its raison d’être with the US withdrawal and end of the war in Afghanistan, the legal black hole that it symbolises is expanding. This is most obvious with the increasing use of administrative forms of arbitrary detention, such as immigration detention, around the world. In addition, the war against ISIS in Syria and Iraq has created a new Guantánamo with thousands detained, some since 2015, arbitrarily and without the prospects of trial, repeating rather than breaking the circle of injustice.
Britain’s Guantánamo
Although Guantánamo is often considered a US concern and remote to most people, the impact of Guantánamo Bay practices and the war on terror is present in other countries. While many are dismayed at former British prime minister Tony Blair’s knighthood for his destruction of Iraq, lawyer Blair also did considerable damage to the law of the United Kingdom. One month before Guantánamo Bay opened, in January 2002, his government hurried passed the Anti-terrorism, Crime and Security Act 2001 through parliament, instituting indefinite arbitrary detention for foreign terrorist suspects, who could not be charged or tried in the UK, sometimes as the evidence against them was tainted by torture evidence from abroad.
Sixteen men, all Muslim refugees, were arrested and detained under these powers, which were overturned by the House of Lords in 2004 as being incompatible with Britain’s human rights obligations. The government then sought to deport these men on the basis of assurances from their home countries, states that torture such as Libya and Algeria, using secretive proceedings and subjected them to strict bail conditions, which included house arrest. In 2016, a court ruled that deportation to Algeria* on this basis was unlawful, the men, who still could not be prosecuted and do not know the reason for their certification as a national security threat, remained subject to strict bail conditions that deprive them of their liberty and which can be revoked or changed at any time. Some of these individuals remain subject to such orders after more than two decades, with no end in sight. It was at that point in 2001 that the discourse around refugees shifted from individuals seeking protection from persecution to posing an unspecified security threat.
Justice is a process and particularly in the context of imperial and colonial wars, such as the war on terror, the fight for justice takes considerable amounts of time and stamina. Time does not extinguish or dampen the need for justice. Having failed to legislate impunity for war crimes committed by its armed force abroad, the British government is now trying to achieve this in legacy claims related to the Troubles in the North of Ireland. More than 50 years after being subject to arbitrary detention and torture by the British army – methods later used by the British army in Iraq and the CIA – surviving victims have not given up on their claim to justice, in spite of the many hurdles they have faced. Justice is not a game the powerful play, it is the right of every person.
* at this stage, only one other deportation was pending to Jordan and was later dropped)
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