Guantanamo, Israel, and the Rule of Law

This past week, President Obama announced a plan to “close” the Guantanamo Bay detention center. I put “close” in quotation marks, because while technically his plan would close the prison at Gitmo, and would accelerate the transfer of prisoners who have been cleared for release, it fails to address some of the other problems associated with Gitmo, specifically the human rights violations inherent in practices like indefinite detention, i.e. holding prisoners without charge or trial for as long as the president sees fit.

Instead of ending this practice, President Obama’s plan would simply move it to the American mainland. Not only does this fail to solve the actual problem of Guantanamo: it sets a new precedent of allowing such abusive practices and circumventions of basic civil liberties in the actual U.S., not just on our military bases. One of the reasons that Bush administration officials argued made Gitmo a good option for detaining prisoners in the War on Terror was that they argued that since the prison camp was not on U.S. soil, they were not entitled to the legal protections guaranteed in the U.S. Or at least that is how the logic went. The Obama plan as revealed this week would maintain the current legal limbo status of Gitmo detainees without even the legal pretext afforded by the foreign location of the prison (some aspects of which have been ruled unconstitutional.) The International Committee of the Red Cross and Human Rights Watch have also published on the subject, arguing that indefinite detention is a violation of human rights. Even in situations where national or municipal law does not apply, persons are entitled to the protection of international human rights law.

Of course, should the president’s plan go forward, the U.S. will not be only state holding people without charge or trial. While ties between the U.S. and Israel have become somewhat strained of late, we can count on Israel’s practice of administrative detention to help bring us together. That and the fact that Israel continues to be the largest recipient of U.S. foreign aid.

The Israeli policy, like the American one, is one of preventative detention: detainees are held not necessarily because they have committed a crime, but because of the possibility they will engage in criminal/terrorist activity in the future. While the justification for this on the part of the U.S. is the War on Terror, in Israel the state essentially maintains a permanent state of emergency justified not only through Israeli law, but measures from both Jordanian rule of the area and the legal system under the British mandate. Currently, Israel is holding a twelve-year-old girl in administrative detention. Her parents have not been allowed to visit her. Minors have also been held at Guantanamo, although the youngest was fifteen at the time of his capture (and a Canadian-born citizen.) Other prisoners held in Israeli administrative detention include Palestinian journalists and people deemed “prisoners of conscience” by Amnesty International, some of whom resort to hunger strikes to protest their treatment. While the twelve-year-old girl received a trial, many being detained by the Israeli state do not, and are subject to torture. Retaliatory measures such as solitary confinement are sometimes taken against hunger strikers.
The U.S. lists the promotion of human rights as one of its foreign policy priorities. Yet it continues to violate international human rights law, and to financially, militarily, and rhetorically support a government that does the same. President Obama has called Guantanamo a “stain on our broader record of upholding the higher standards of the rule of law.” The practice of indefinite detention, and support for similar Israeli policies, will remain a stain on that record for as long as they exist, regardless of the exact geographical coordinates.


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