President Obama’s visit to Cuba: revisiting discussions about human rights violations in Guantanamo Bay

President Barack Obama’s unprecedented visit to Cuba in March 2016 sparked some highly topical conversations. In particular, a few things were said at a joint press conference on March 21st 2016 about the status of human rights in Cuba. President Obama’s address pointed out that the United States and Cuba “[continued] to have some very serious differences, including on democracy and human rights.” He commended the country on its advances in healthcare and education, but subtly noted that it had yet to make progress in the areas of freedom of speech, assembly and religion.

However, commentators have argued that the worst human rights violations on Cuban territory happen in the infamous U.S. military-run detention facility housed within the Guantanamo Bay Naval Base.  

The detention facility at Guantanamo Bay was initially opened in January 2002, mere months after the 9/11 attacks. Since then, it has housed approximately 780 detainees. So far, 680 have been transferred, 9 have died in the facility and 80 remain. Of these 91 men, 26 have been recommended for transfer and expect to be repatriated over the next few months if security conditions are met. However, 44 have been identified by the Periodic Review Board as too dangerous to release and will likely remain in detention indefinitely.

The U.S. has continuously withheld the application of international human rights law treaties to detainees in Guantanamo Bay by circumventing the issue of extraterritorial application and treating its Cuban base as a “legal black hole.” Unsurprisingly, human rights treaty bodies have criticised this narrow approach. For example, the Human Rights Committee has interpreted the jurisdictional clause in the International Covenant on Civil and Political Rights (ICCPR) to apply to anyone “within the power or effective control of the state.” More specifically, the UN Committee Against Torture recommended in its report on the U.S. that it should “recognize and ensure that the provisions of the Convention [are] expressed as applicable [to territory under its jurisdiction] apply to, and are fully enjoyed, by all persons under the effective control of its authorities, of whichever type, wherever located in the world.”

Guantanamo Bay detainees have been routinely denied procedural safeguards. Despite being detained in connection with armed conflicts, the Geneva Conventions have not been held to apply to detainees at Guantanamo Bay. Instead of being tried for terrorism offences by U.S. courts pursuant to Article III of the U.S. Constitution, detainees continue to be tried by military commissions. Citing inadequate due process, the U.S. Supreme Court in Hamdan v Rumsfeld initially found that such military commissions "lacked the power to proceed because [their] structures and procedures violated both the Uniform Code of Military Justice and the four Geneva Conventions." Congress subsequently passed the Military Commissions Act of 2009, eliminating the jurisdiction of federal courts to hear habeas applications from detainees designated as enemy combatants. However, in Boumediene v. Bush, the Supreme Court attempted to curtail this unwarranted expansion of executive power. It found that the constitutional rights guaranteed under the Suspension Clause of the U.S. Constitution applied extraterritorially to Guantanamo detainees. According to the Suspension Clause, the privilege of the Writ of Habeas Corpus could not be suspended, unless public safety required it in “Cases of Rebellion or Invasion.” Currently, options to restructure Military Commissions or transfer outstanding matters to federal courts are being considered.

Guantanamo Bay detainees have also experienced torture and other cruel, inhuman and degrading punishment. The Bush administration sanctioned the use of "enhanced interrogation techniques" on suspected terrorists. A 2014 Report released by the Senate Select Committee on Intelligence identified that these techniques included slapping, sustained sleep deprivation, forced rectal feeding, various forms of psychological ill treatment and most controversially, waterboarding. More recent allegations, although unsubstantiated, suggest that they may have extended to a wider range of coercive methods including sexual abuse. The UN Convention Against Torture, to which the U.S. is a signatory, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for purposes such as obtaining a confession. The Eighth Amendment of the U.S. Constitution prohibits the Federal and State governments from imposing “cruel and unusual punishment.” The CIA officials responsible for inflicting torture on Guantanamo detainees have not been prosecuted.

Despite the proposed closure of the Guantanamo Bay detention facility being one of President Obama’s first official decisions after coming into office, it has not yet eventuated due to efforts being stalled by the Republican majority in Congress. This year, he put in a last-ditch effort to make it happen. The 2016 Guantanamo Closure Plan has publicly acknowledged that the facility’s continued operation “weakens national security by furthering the recruiting propaganda of violent extremists, hindering relations with key allies [and] draining Defense resources.” While this is a strong indication that Bush’s gun-slinging ‘War on Terror’ is slowly losing traction, only time will truly tell. 


The author, Samudhya Jayasekara, is the Australian Journal of Human Rights student editor for semester one, 2016. Her article forms part of a series, The Student Voice. To read more articles by our students, click here.



Photo credit: Stephen Melkisethian