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HUMAN RIGHTS: Guantanamo Question Tests Equality in U.N. Commission

Gustavo Capdevila

GENEVA, Apr 20 2004 (IPS) - The United Nations Commission on Human Rights, which usually avoids putting powerful countries on the defensive, will see its credibility tested Thursday when it takes up the Cuban proposal to demand that the United States report on the rights of the detainees at its base in Guantánamo.

The annual six-week sessions in Geneva of the highest U.N. human rights authority were headed calmly towards their conclusion next weekend – until Cuba shook things up, complicating the debate by challenging the situation at the U.S. military enclave set in the extreme southeast of the Caribbean island.

The Cuban government of Fidel Castro is calling on the Commission on Human Rights to demand that Washington report on the living conditions and legal status of some 600 foreign nationals detained as "enemy combatants" at the Guantánamo naval base since the war in Afghanistan in late 2001.

The censures issued by the Commission increasingly are limited to politically isolated countries, says Joanna Weschler, a director of Human Rights Watch, an independent organisation based in New York.

The Commission itself seemed to validate that notion last Thursday when it approved resolutions critical of Cuba, Turkmenistan, North Korea and Belarus, but rejected such censures against China, Zimbabwe (supported by the African bloc) and against Russia for the situation in Chechnya.

Although this time the "calibre" of the accused is completely different, because in practice the United States constitutes its own bloc within the Commission on Human Rights.

Washington opposition prevents consensus on many issues, in particular those related to the Middle East and to economic, social and cultural rights, which it systematically obstructs, this year backed by Australia.

In the other corner is Cuba, debilitated by the successful vote last week against its human rights record. But it was a relatively close vote on a "soft" censure presented by Honduras, though clearly promoted by Washington.

Nor does it do Cuba any good to argue that the United States in Guantánamo is violating the Pact on Civil and Political Rights, one of the foundations of the U.N. human rights system.

Cuba, unfortunately, has not ratified that treaty, noted Alfred de Zayas, a Cuban-U.S. legal professor at the Institute Universitaire des Hautes Etudes Internationales, in Geneva.

Likely due to its own government’s omission, the Cuban delegation on Tuesday distributed a revised text of its draft resolution on Guantánamo that eliminated any mention of the United States as a member of the Pact on Civil and Political Rights.

But De Zayas acknowledged that the United States is in violation of the pact for failing to recognise that it also applies to Guantánamo, which he says is a territory under U.S. jurisdiction.

The U.S. Supreme Court heard arguments Tuesday in a case on whether the prisoners can appeal to the U.S. courts regarding their detention. The government attorney said that Cuba holds ultimate jurisdiction over the enclave, so it is outside the realm of U..S. justice.

The lawyer for the detainees, meanwhile, referred to Guantánamo as a "lawless enclave", and said the case is a test of U.S. federal courts to uphold the law, according to press reports.

A high magistrate of British justice, Lord Johan Steyn, commented in Geneva on the situation of the prisoners at Guantánamo and international principles of fairness.

"The question is whether the quality of justice envisaged for the prisoners at Guantánamo Bay complies with minimum international standards for the conduct of fair trials. The answer can be given quite shortly: It is a resounding NO."

"I regard this as a monstrous failure of justice," said Steyn.

The legal status of the detainees also brings up the old problem of the possession of the land where the United States set up the Guantánamo naval base.

De Zayas noted during a press conference that the United States leased the Cuban land for naval stations and coal supplies only, "and for no other purpose."

Havana maintains that Washington has violated those terms because it has used the base for the internment of Haitian refugees and now for prisoners of war.

Since 1959, when Castro’s revolutionary government had just taken power, Cuba stopped receiving the lease payment of must over 4,000 dollars a year and informed Washington that it wanted to put an end to the agreement.

But the United States maintains that the charter can only cancelled by mutual agreement.

With these facets, the Guantánamo question put to the U.N. Commission takes on additional importance, said Hardeep Puri, delegate from India. The matter is no longer reduced to a vote in favour or against the resolution.

As of Tuesday, India had not decided how it would vote, Puri told IPS.

Nor in the European Union was there consensus, and a political decision was expected from Brussels, because the EU countries represented in the Commission were divided between voting against the Cuban resolution on Guantánamo and abstaining.

Meanwhile, the Latin American members of the Commission had a hard time presenting a united position. Sources close to the delegations from that region anticipated the possibility that Argentina, Brazil and Paraguay will once again abstain, as they did a week ago on the resolution condemning Cuba’s rights record.

The Britain-based human rights watchdog Amnesty International noted Wednesday that for more than two years many have condemned the situation in Guantánamo, concerned that the United States is setting a dangerous precedent in its policy of detentions in the war on terrorism.

Other governments might cite the example of Guantánamo to justify their own abusive practices.

Guantánamo is "a major human rights scandal that has widespread implications for the whole world," said Amnesty last week.