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Guantanamo: preparing to judge

by Hal Crawford and Perro de Jong, 11 June 2003

Human rights groups, long critical of the US prison camp at Guantanamo bay in Cuba, have found new cause for alarm in reports of a courtroom and execution chamber being prepared near the compound. Concerns over the preparations to try and punish the approximately 680 prisoners held at Guantanamo have been dismissed by officials as premature.

US military spokesman John Smith confirmed on Monday that a building at the Guantanamo naval base is being refurbished for use as a courtroom, and that discussions concerning an execution chamber have taken place. However, according to Major Smith, "it's really premature to be talking about executions before we've even had anyone tried or jurisdiction to try anyone."

In limbo

The Guantanamo inmates, mostly captives from the US-led war in Afghanistan against the Taliban, have been denied prisoner-of-war status in order that US officers can interrogate them legally. Because Guantanamo is outside the US, they are also denied access to US legal procedure and rights, existing instead in a kind of legal limbo as "enemy combatants".

International law expert Avril McDonald from the Netherlands� Asser Institute says there are several reasons why the latest development at Guantanamo Bay is disturbing. She rejects US assurances that the military commission and punishments will not happen for some time.

Click to hear the edited interview with Avril McDonald 3�17

"Surely now is the time to react and to get irate, before it's too late, before they have actually put this into place . . . it's highly disturbing, and I don't think it's inappropriate to comment on the plan. When the people are frying in the chair it will be a bit too late to get upset."

Inferior standards

Ms McDonald says the impending commission and the standard of its legal proceedings will be altogether inferior to those standards required, for instance, under European human rights law.

"I won't glorify it by calling it a court martial. It's not a court martial. That is what the US would try its national soldiers with. What they have done under the military order and the rules of procedure and evidence is to create a separate legal regime for the persons interned in Guantanamo Bay."

The commission will appoint military defence lawyers as well as pass judgment on the accused, according to Ms McDonald, a conflict of interest that further compromises the possibility of a fair trial. All in all, Washington is trying to gain the advantages of both military and civilian law without paying heed to the restrictions of either:

"Frankly I find it ironic. The US is saying �we don't recognise these people's human rights, we don't recognise their constitutional rights under American law, because after all, we have no real jurisdiction over Guantanamo Bay, it's not part of our sovereign territory.' On the other hand, they [the prisoners] are subject to the worst of the American penal system. They don't benefit from the due process rights within the American legal system, but they are subjected to the very worst-case scenario, the death penalty."

Isolation

Another problem with Guantanamo is its physical isolation. Ms McDonald says this could mean that media are unable to cover the military commission properly, ensuring its workings remain obscure.