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Let Cuba Live
Guantanamo for Beginnersby Tom Whitney Jr. , May 16, 2012
The United States has occupied 45 square miles around Cuba's Guantanamo Bay for 101 years. The purpose here is first briefly to note circumstances by which the occupation began and to summarize legal arguments suggesting the occupation is illegal. Then use of the base to house prisoners is described with emphasis on human rights abuse for which the prison there is now emblematic.
Cuba was saddled with U.S. occupation of Guantanamo through U.S. pressure to pass a new constitution in 1901 incorporating the so-called Platt Amendment. That instrument gave the U.S. Secretary of State authority to order troops into Cuba. Article Seven of the Platt Amendment opened up Guantanamo Bay for use as a U.S. coaling station and naval base.
The United States had intervened during the last months of Cuba's second war for independence which began in 1895. Cuban rebels had already defeated Spain's colonial army when the U.S. Army invaded Cuba in 1898. That coincided with the United States attacking and eventually taking over the Philippines. At the peace settlement signed in Paris on December 10, 1898, Spain’s exit from the Western Hemisphere was a matter arranged between the United States and the defeated colonial power. The former Cuban rebels and political representatives of the Cuban people were uninvolved. A nascent U.S. empire that year assumed ownership of Guam, the Philippines, and Puerto Rico, and cemented control over Cuba.
Alfred de Zayas is an international lawyer formerly associated with the United Nations. Explaining why the U.S. hold on Guantanamo Bay violates international law, he cites a doctrine known as "Material Breach of the Agreement," which refers to the U.S. having established a prison there. The "Doctrine of Unequal Treaties" applies, he suggests, because Cuba was forced into the Guantanamo agreement. And the "Emergence of New Peremptory Norms” demands that new, post-colonial realities like self-determination be taken into account to reassess the agreement’s validity.
De Zayas introduces the idea of a "Fundamental Change of Circumstances," which reflects changed world conditions, or changed relations between treaty partners. He invokes the notion of an "Implied Right of Denunciation," which on grounds of Cuban sovereignty condemns the 1934 agreement renewing the Guantanamo lease.
That accord stipulated that any U.S. departure from Guantanamo would require approval by both countries. And the U.S. Helms-Burton Law of 1996 proclaimed that the United States would not be leaving as long as Raul or Fidel Castro were part of the Cuban government.
U.S. prison facilities at Guantanamo came into full use in the 1990's when the United States housed tens of thousands of Cuban and Haitian refugees there. Prisoner abuse began then and mushroomed later with the arrival of Afghanistan war detainees in early 2002. Since then incarceration of children, old men, innocent bystanders, and non-terrorist combatants have become the staple of Internet and alternative media reports. Prisoners arrived at Guantanamo having been "sold" to the U.S. military by bounty hunters. Many were transferred from other prisons no less cruel. Most have been tortured. Some who qualify for release remain imprisoned because countries of origin refuse to accept them. Andy Worthington's blog provides has comprehensively surveyed individual stories.
As 2011 closed, a total of 774 prisoners had entered the U.S. Guantanamo Bay prison. Of these, 171 prisoners are still there. Of that group, 12 prisoners arrived on January 11, 2002, and only one of them has been charged. In all, 120 of the prisoners remaining at the prison arrived before September 2002.
Released in December, 2011, an exhaustive Amnesty International (AI) report titled "Guantanamo, a Decade of Damage to Human Rights" mines individual accounts of torture and abuse. The 60 page report highlights revealing statements and comments from judges, chiefs of state, U.S. politicians, military officials, and jailers. Contradictory turns of U.S. policies and judicial decisions are fully explored. The AI survey touches upon U.S. human rights abuses worldwide, also the U.S. tendency to use policy considerations rather than law to determine prisoners' fates. Continuing detention of prisoners despite court-ordered release is denounced. The report explores manipulation of judicial proceedings, lack of victim remedies, and the void that is U.S. accountability for "crimes under international law.”