US President Barack Obama has just broken his first big campaign promise. Within days of his victory, he announced that the Guantanamo Bay detention center would be closed within a year. Twelve months on, it is still functioning with 198 inmates and there remains no apparent time for its closing.
In the general euphoria that followed Obama’s triumph, too many people chose to overlook the lessons history has taught time and again — that when electioneering commitments finally meet the reality of power, it is the commitments that are all too often blunted.
Gitmo remains a shameful episode for the United States, a poisonous inheritance for Obama from the incompetent incumbency of George W. Bush and his hard-core neocons. Because it manipulated and effectively stepped outside international law, it is proving extremely difficult to unravel.
The basic proposition, however, has not changed. Of the 775 prisoners who were sent to Gitmo from 2002 onwards, some were clearly extremely dangerous terrorists, allied to or part of the Al-Qaeda network. Others were simply unfortunate enough to be trapped in the wrong place at the wrong time. One such was the luckless man whose “crime” was that he had been Osama Bin Laden’s driver in Afghanistan. All were incarcerated in Gitmo having been branded “enemy combatants.” This description meant that to the satisfaction of the Bush administration — but to no one else in the international community — the detainees were beyond the jurisdiction of the Geneva Convention on Prisoners of War.
As with so much else in the Bush days, there was no long-term plan, merely the conviction that these men should be kept safely under lock and key for an indefinite period. This jurisdictional limbo meant the detainees had no legal recourse other than that offered by a long-delayed scheme to bring them before military courts, in a process that was widely considered to be biased and prejudicial.
There was nonetheless a way out of the legal hole that the Bush administration had dug for itself. The United States could have fully rejoined the UN International Court of Justice (ICJ), commonly known as the World Court, from which it withdrew in 1986. The detainees could have been brought to the dock there and the evidence of their involvement in terrorism weighed by international jurists.
There are probably two reasons why this did not happen. The first is that the Bush White House knew the weakness of the evidence against some of the detainees and was further unprepared to share secret intelligence sources related to others. The second is that by reaccepting fully the World Court’s jurisdiction, it was possible that US citizens, not least military men, could in future be arraigned before it. Thus Gitmo, which might well have been a legitimate prison for those the World Court found guilty of terrorism, instead became a by-word for injustice and a deep stain on America’s international reputation. Obama should have seriously considered the World Court option a year ago. It is still not too late to take that option for the remaining hard-core detainees.
