Guantánamo – a disgrace for the “values” (West) à la USA

by Dr iur. Marianne Wüthrich

“We have to decide whether power is above law or law is above power. If we opt for the constitutional state, we must be aware that all power – including ours – is subject to the law.”

Nils Melzer1

Our media usually report in a rather one-eyed way. The “Syrian torture prisons” under President Assad are in the spotlight everywhere, while the world’s worst torture prisons run the risk of being forgotten. But now Guantánamo is once again in the headlines because Joe Biden, like other US presidents before him, is trying to get rid of some “legacy issues” before he leaves. On 6 January 2025, he had eleven inmates flown out of the Guantánamo prison camp to Oman. The men come from Yemen and, according to the media, were “imprisoned for more than 20 years without charge”! In addition, the Afghan prisoner Muhammad Rahim al-Afghani is to be exchanged for three US-Americans held in Afghanistan. He has been in Guantánamo for 17 years as an alleged high-ranking al-Qaeda operative. According to his lawyer, not a single piece of evidence has been found to support these allegations, and he himself has always denied them.2

No room for constitutional principles

In a constitutional state, the matter would be clear: anyone accused of an offence must be charged by the competent court, and if the prosecuting authority cannot provide sufficient evidence, the court must release him or her immediately. There is little room for such principles of the constitutional state in the US leadership and its secret services. The Guantánamo Bay prison camp in Cuba was set up by President George W. Bush in 2002 in violation of international law and has been maintained since then in defiance of all laws and despite numerous protests at home and abroad as well as from the UN.
  President Barack Obama famously announced the closure of Guantánamo in 2009 – all smoke and mirrors. The Congress banned the transfer of prisoners to the US mainland, thereby preventing them from being legally charged by a court in the US and released if there was no evidence. Instead, the US government has a history of deporting as many of the prisoners who have not been convicted, and are therefore innocent before the law, to various countries. Some inmates were also taken to Switzerland years ago (Uyghurs who happened to be in the region at the beginning of the US invasion of Afghanistan and had fallen into the clutches of the CIA). Following the recent release of 11 men to Oman, there are said to be 15 unfortunate people remaining.

Deal with a man who
‘confessed’ after decades of torture

The US government’s deal with Khalid Sheikh Mohammed, who, according to recent media reports, has been brought to the point where he is expected to plead guilty to planning the attacks of 11 September 2001, also defies all principles of the rule of law. As a “reward”, his impending death sentence is to be commuted to life imprisonment. “The background to this out-of-court settlement is that his earlier confessions were probably made under torture and would not be valid in court.”3 In plain language: Mohammed’s admissions of guilt are null and void, because he has been tortured for over 20 years, beginning in March 2003: “1 March 2003: Mohammed, the alleged mastermind of the 11 September attacks, is captured in Pakistan. Over the next month, he will be waterboarded 183 times.”4 183 times in one month! More than six times a day! It is hard to imagine what else he has had to endure since then before he is currently being made to “confess” to planning the attack on the towers in New York.
  The Guantánamo prisoner Abu Zubaydah described the torture practices he and others had to endure during their more than 20 years of suffering in 40 brutally realistic drawings with accompanying text. Just looking at a few of these drawings is almost unbearable! They were published in a book in May 2023.5

USA suspends Geneva Convention –
Nils Melzer opposes

From these inhuman abysses, it is difficult to find your way back to the rule of law and humanity. Nils Melzer is someone who, despite all the injustice he has witnessed in the course of his work for a more humane world, has not allowed himself to be dissuaded from his upright stance. For decades, as an ICRC delegate, as UN Special Rapporteur on Torture (especially in the tireless fight for the release of Julian Assange) and as Director of International Law, Policy and Humanitarian Diplomacy at the International Committee of the Red Cross (ICRC), he contributed to making our world a little more humane and hopeful. In an interview with Weltwoche, Nils Melzer emphasises the indispensability and great importance of the principles of international humanitarian law, especially in today’s world:
  “The Geneva Conventions clearly state that enemy combatants are not monsters or animals. They are human beings who can only be attacked if and as long as they are directly involved in hostilities through their function or activity. But as soon as they are no longer able or willing to fight, they are entitled to protection, humane treatment and, in the case of crimes, a fair trial”.6
  The US government, on the other hand, makes no secret of the fact that it does not feel bound by the principles of mandatory international law. After launching an unrelated war against Afghanistan following the 11 September 2001 attacks, President George
 W. Bush issued an executive order on 7 February 2002, declaring “members of al Qaeda, the Taliban and associated forces [to be] unlawful enemy combatants who are not entitled to the protection granted to prisoners of war under the Third Geneva Convention”.7
  Apparently, it had slipped the minds of the US elites that they themselves had created al-Qaeda, and what they are all called, and had allowed them to become big where they were useful to them.
  In fact, it is precisely the purpose of the Geneva Conventions that they are mandatory for all parties in all wars, especially for the major powers (see box).

CIA torture centres since 2001
and to this day in Guantánamo

Furthermore, according to the 2014 CIA Torture Report, President Bush signed “a secret memo authorising the CIA to detain suspected terrorists” on 17 September 2001. This was followed by the outrageous activities of the CIA, which from 2002 to 2008 indiscriminately rounded up people in various countries – what are “suspected terrorists”? – and put them in their secret torture chambers in order to force “confessions” out of them using the most brutal methods. Most of the survivors of torture subsequently ended up in Guantánamo, where up to 700 disenfranchised people languished for decades under the worst living conditions and severe torture, without charge and thus without the opportunity to defend themselves before a proper court.
  We should remember the tortured prisoners in Abu Ghraib in Iraq. Three survivors were recently awarded compensation according to a court ruling in the USA in November 2024 (after 20
 years!), but not to be paid by the US state, but by the “security company” that had been deployed by the US Army.8 It is also worth remembering the courageous Swiss Dick Marty, who in 2007, as a special investigator of the Council of Europe, uncovered the operation of CIA secret prisons in several EU countries, such as Poland and Romania, whose governments immediately denied this. According to Marty’s report, Germany and Italy were also involved in the CIA’s torture and abduction programs. While the Schröder government denied any involvement, the Italian judiciary at least opened court proceedings in absentia against 26 US citizens.9 As the “Tages-Anzeiger” noted on 14 January 2025, not only the USA but also the European states, which had been condemned by the European Court of Human Rights for their complicity, should finally learn the lesson: “Anyone who ‘consciously and willingly enables’ an allied state to violate human rights is complicit.”10
  After the facts could no longer be ignored, the US Senate Intelligence Committee finally began to record the outrageous acts of CIA exponents and other criminals in a comprehensive report. This report also stated that a large proportion of those tortured were “wrongly detained”. It was finally published on 9
 December 2014.11 The US Department of Justice immediately declared that it would “not initiate any new criminal investigations [against the torturers] based on the torture report”.12

* * *

Vilifying other heads of state as inhuman monsters and imposing sanctions on their peoples that strangle any kind of dignified life and economy – that’s what they’re capable of! •



1 Ryser, Daniel. “Wir befinden uns am Abgrund zu einem neuen Mittelalter.” (We are on the precipice of a new Middle Ages.) In: Weltwoche No. 51/52.24 of 19 December 2024
2 Signer, David. “Biden senkt die Zahl der Guantánamo-Insassen” (Biden lowers the number of Guantánamo inmates). In: Neue Zürcher Zeitung of 9 January 2025
3 Signer, David. “Biden senkt die Zahl der Guantánamo-Insassen” (Biden lowers the number of Guantánamo inmates). In: Neue Zürcher Zeitung of 9 January 2025
4 CNN. CIA torture report. Brief information. Updated 9 September 2024. https://edition.cnn.com/2015/01/29/us/cia-torture-report-fast-facts/index.html
5 Pilkington, Ed. “‘The eternal prisoner’: Abu Zubaydah’s drawings expose the reprehensible US torture policy”. In: The Guardian, 11 May 2023 https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy
6 Ryser, Daniel. “Wir befinden uns am Abgrund zu einem neuen Mittelalter.” (We are on the precipice of a new Middle Ages.) In: Weltwoche No. 51/52.24 of 19 December 2024
7 CNN. CIA torture report. Brief information. Updated 9 September 2024. https://edition.cnn.com/2015/01/29/us/cia-torture-report-fast-facts/index.html
8 “Rolle der USA im Irak-Krieg. Folteropfer von Abu Ghraib erhalten Entschädigung” (Role of the USA in the Iraq war. Abu Ghraib torture victims receive compensation”. In: ARD Tagesschau of 12 November 2024
9 “CIA-Gefängnisse: Dick Marty klagt an.” (CIA prisons: Dick Marty accuses.) In: Swissinfo of 8
 June 2007
10 Steinke, Ronen. “Die USA müssen Guantánamo endlich schliessen – und die Lehren daraus bewahren.” (The US must finally close Guantánamo – and preserve the lessons learned.) In: Tages-Anzeiger of 14 January 2025

11 Report of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program of 9 December 2014
12 CNN. CIA torture report. Brief information. Updated 19 September 2024

Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention). Concluded in Geneva on 12 August 1949. Excerpt

Article 4 A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict […] [and many other categories of persons]

Article 13 para 1 Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.

Article 14 para 1 Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

Article 87 para 3 Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.

III. Judicial procedure

Art. 99 para 2 No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
para 3 No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.

Art. 118 para 1 Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

Source: https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949?activeTab=

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