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Q&A: How Does International Human Rights Law Address the Guantanamo Bay Detentions?
  • Who is being detained by the United States in Guantanamo Bay, Cuba?
  • What is an 'enemy combatant'?
  • What are the Geneva Conventions?
  • Why Guantanamo Bay?
  • What are human rights?
  • How are the prisoners being treated?
  • What is the Universal Declaration of Human Rights?
  • How does the USA's treatment of Guantanamo Bay detainees violate
    human rights law?
  • Why does the Bush Administration's military order violate human rights
  • Should accused terrorists have rights?
  • Why should Americans be concerned?
  • Where can I learn more about the Guantanamo Bay detentions?
  • What can I do to encourage the U.S. government to comply with human rights
  • What resources were used to compile this fact sheet?
  • Who is being detained by the United States in Guantanamo Bay, Cuba?

    Individuals, most of whom are believed to have been engaged in hostilities, who were captured by U.S. forces during the war in Afghanistan.  The close to 700 detainees represent more than 40 different countries.  Most detainees were fighting with Al Qaeda or Taliban forces; yet some are reported to have been detained far from the field of battle or in third-party countries.  The detainees are reportedly all men, although some male children as young as age 13 are also being detained.

    What is an 'enemy combatant'?

    The term 'enemy combatant' is a status created by the United States government to apply to individuals detained by U.S. forces during the war in Afghanistan and in the war on terror.  Historically, this designation carries no significant legal or military status.  By designating detainees 'enemy combatants', the U.S. government argues that it is not required to provide the detainees the rights afforded to prisoners of war (POWs) by the Geneva Conventions (the body of international law that deals with how war is conducted).

    What are the Geneva Conventions?

    The 4 Geneva Conventions of 1949 are the most widely accepted statement of the rules of war and create the legal framework for dealing with combatants and civilians captured during war.  The Third Geneva Convention describes the rights of captured combatants and defines POW status.  The Fourth Geneva Convention covers the treatment of both unlawful combatants and innocent civilians.  According to the International Committee of the Red Cross, there is no gap between the Third and Fourth Geneva Conventions - noone can fall outside the law. 

    Why Guantanamo Bay?

    Guantanamo Bay is a U.S. naval base on land under the sovereignty of Cuba but which has been leased to the United States since 1903.  By placing detainees of the war on terror in Guantanamo Bay, Cuba, the United States government has attempted to create a "rights-free zone."  The United States argues that since it does not have sovereignty over the territory in Cuba, U.S. criminal statutes do not apply to the detainees.  This means that U.S. courts do not have jurisdiction over the detainees who are not protected by U.S. law.  At the same time, the U.S. government also argues that international law does not apply to the detainees because 1) they are not prisoners of war (whose rights are protected under the Geneva Conventions) and 2) because the U.S. has exclusive jurisdiction over the territory of Guantanamo Bay. 


    International human rights organizations and American attorneys representing detainees deny that individuals can ever exist in a "rights-fee zone." They argue that the detainees must have recourse to due process.  The U.S. government has been criticized for 1) failing to differentiate between forces detained while fighting on behalf of the Taliban (who might qualify for POW status) and those detained in the war on terror for either fighting with al'Qaeda or captured far from battle; 2)  denying the detainees protections afforded to them by the U.S. judicial system since Guantanamo Bay is under the complete jurisdiction of the U.S.; and 3) violating fundamental human rights of detainees by not abiding by the human rights standards of the Geneva Conventions, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 

    What are human rights?

    All people are born with human rights.  Human rights are equally held by all persons and can never be revoked.  They are the basic standards without which people cannot live in dignity.  Unlike civil rights, which are the rights of citizens as determined by a particular country, human rights apply to all people at all times wherever they are.

    How are the prisoners being treated?

    Because of the level of secrecy surrounding the detentions at Guantanamo Bay, the conditions of detention and treatment of prisoners are uncertain.  Although the U.S. Government insists that detainees are being treated humanely, human rights organizations have reported cases of cruel and unusual punishment.  It has been reported that detainees do not know where they are being held, the crime they are charged with, or how long they will remain in detention and have been denied access to attorneys.  Prisoners have been photographed with their arms and legs shackled while being held inside cages with exposure to the elements, having only a wooden shelter above their heads.  Several inmates have attempted suicide or gone on hunger strikes to protest the conditions of their confinement.  In response to demands by human rights organizations, the U.S. government reports that it is respecting the religious and cultural practices of inmates.  Nonetheless prison conditions are reported to be significantly below the standard for American prisons.

    What is the Universal Declaration of Human Rights?

    The Universal Declaration of Human Rights is the most widely accepted statement of human rights in the world covering economic, social, cultural, political, and civil rights.  The document is universal (it applies to all people everywhere).  It is a statement of intent and a set of principles to which United Nations member states (including the United States) commit themselves in an effort to provide all people a life of human dignity.  The UDHR has acquired the status of customary international law.

    How does the USA's treatment of Guantanamo Bay detainees violate
    human rights law?

    Violations of the Universal Declaration of Human Rights

    (resolution passed by the United Nations General Assembly, including the U.S.A., in 1948)


    Article 5 guarantees the right to be free from torture or cruel punishment


    Article 10 guarantees the right to a fair and public hearing by an independent tribunal


    Article 11 guarantees the right to presumption of innocence until proven guilty at public trial with all guarantees necessary for defense


    Violations of the International Covenant on Civil and Political Rights (ICCPR)

    (ratified by the U.S.A in 1992)


    Article 2(1) demands all individuals within a state's territory or subject to its jurisdiction the rights of the ICCPR regardless of nationality or citizenship.


    Article 9(4) guarantees anyone arrested or detained proceedings before a court to determine the lawfulness of his/her detention and that the court should respond without delay.  (The Human Rights Committee of the United Nations has stated that this right is non-negotiable, even in states of emergency)

    Why does the Bush Administration's military order violate human rights

    In November 2001, President Bush signed a military order that allowed for the indefinite detention without charge or trial of individuals suspected of participating in "international terrorism."  This order also allows for trials by military commissions, which hand down death sentences without appeal.  According to international human rights standards, detainees must be provided access to legal counsel and to challenge the lawfulness of their detention in a court of law.  Detainees must be charged with a recognizable crime and brought to fair and public trial without unreasonable delay. These standards are not being met with regard to the Guantanamo detainees.


    Human rights organizations argue that the U.S. military tribunals will not be legal or fair because 1) they lack judicial oversight and independence (the executive branch is prosecutor, judge, jury and potentially executioner); 2) there is no differentiation between detainees captured during conflict and those captured far from battle; 3) there is no right of appeal; 4) the rules governing the trials restrict the right to an effective defense; and 5) the tribunals discriminate between citizens and non-citizens (which is not permitted under international law).

    Should accused terrorists have rights?

    Yes.  According to the international documents cited above, human rights apply to all human beings regardless of national boundaries, individual citizenship, or criminal status.  The detainees in Guantanamo are still guaranteed humane treatment and the right to appeal their status through a due process hearing.  Further, U.S. criminal law and international human rights law dictate that those blamed for a crime be thought of as innocent until proven guilty, according to the law, in a fair and public trial where the accused has the means to defend him/herself.  Several detainees have been released to their home countries without charge despite extended periods of detention. 

    Why should Americans be concerned?
    • The United States Constitution and the U.S. government are designed as a system of checks and balances in accordance with the principle of separation of powers - where each branch of government is able to scrutinize the activities of the other branches.  In Guantanamo Bay, Cuba, the executive branch has attempted to create a "rights-free zone" that is not subject to meaningful review by the U.S. Congress, U.S. Courts, or even the media. 
    • The Executive Branch has detained some American citizens as 'enemy combatants' as well as some non-citizens residing in the United States.  Although none of these individuals has been transported to Guantanamo Bay to date, all have been denied the full protection of the American judicial system.
    • The United States powerfully influences human rights practices through its actions.  When the U.S. renounces treaties and violates customary international human rights law, it encourages those individuals and states around the world that violate human and civil rights and who use the U.S. position as justification for their own illegal actions.  Americans, like people everywhere, have greater security in a world governed by the rule of law.
    • It is almost certain that the U.S. government would protest if any government were to hold an American citizen in legal limbo by another country where they could face the death penalty and were denied access to a fair and public trial.  Yet, U.S. government action in Guantanamo Bay creates a precedent that other governments may follow, putting Americans at risk worldwide.
    • Further, denying that the Geneva Conventions apply to forces fighting for the Taliban weakens the normative force of the Conventions, putting the U.S. military at risk of similarly being denied protections according to the rules of war. 

    Where can I learn more about the Guantanamo Bay detentions?

    "Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees"

    Human Rights Watch -


    "United States of America: International Standards for All"

    Amnesty International -


    "Security Detainees and the Criminal Justice System" Chapter 4 in "Imbalance of Powers: How Changes to U.S. Law and Policy Since 9/11 Erode Human Rights and Civil Liberties"

    Lawyer's Committee for Human Rights -

    What can I do to encourage the U.S. government to comply with human rights

    Write, email, or fax your government representatives and urge them to revoke the military order and guarantee a fair trial for Guantanamo Bay prisoners.  Correspondence can be sent to your Congresspersons, Senators, the Assistant Secretary of State, or the President.


    For useful tips on how to write a letter or to participate in Amnesty International's letter writing efforts visit

    To locate your Congressperson visit

    To locate your Senators visit


    Contact the President:

    President George W. Bush

    The White House

    1600 Pennsylvania Avenue

    Washington, DC 20500

    Tel: (202) 456-1111

    [email protected]


    Contact the Assistant Secretary of State:

    Lorne W. Craner
    Assistant Secretary of State
    Department of State
    Bureau of Democracy, Human Rights and Labor
    2201 C Street, NW, Room 7802
    Washington, DC 20520, USA
    Fax: (202) 647-5283

    What resources were used to compile this fact sheet?

    Amnesty International

    Associated Press



    Department of Defense

    Human Rights Watch

    International Committee of the Red Cross

    The Financial Times

    The New York Times

    The Wall Street Journal

    Washington Post