opinion

Playing the Guantanamo card in a game of constructive diplomacy
by Kira Vinke --- Council on Hemispheric Affairs

In recent months, media coverage of Guantanamo Bay has focused on the relocation and plans for the prosecution of detainees now housed there by the United States government. But there is another issue that all but goes unaddressed --- the legitimacy of the US naval base’s very presence along the southeastern coastline of Cuba. This issue has not yet been even cursorily explored. On January 22, President Obama signed an executive order that called for the closure of the Guantanamo Bay detention camp within one year. This would remove the sole remaining function of the base that served as an internment camp for suspected terrorists, and therefore also would provide the Obama administration with good reason to reconsider returning the land itself to Cuba, its rightful and legal owner.

Returning Guantanamo to effective Cuban sovereignty as part of a normalization of relations with Cuba would have an explosive impact throughout Latin America. It would be the single most transformative act of goodwill that the United States could make, and would be sure to bring in return a range of positive actions on Havana’s part. Furthermore, Washington’s release of the Cuban Five (jailed Cubans presently serving lengthy prison terms after very controversial trials before Federal District Judge Joan Lenard --- one of the most contentious judicial figures in the country) could win the release of all political prisoners presently being held in Cuba.

Guantanamo: an anachronism

The presence of the United States in Cuba is a grossly outdated quirk of history. Today there appears to be no logical justification for the US maintenance of its more than 100-year-old outmoded base at Guantanamo; the United States receives no tactical or economic benefits from it. Indeed, The New York Times estimated that the annual cost to operate the strategically redundant base ranges between $90 million and $118 million, an unconscionable waste of vital resources, particularly in these dire economic times. To continue leasing territory from a country with which the United States has not had formal diplomatic relations for almost five decades and which has become its mortal enemy, also seems to be a bizarre practice at the least and at best a perversity.

There is no legal justification for Washington’s continued presence at Guantanamo; the base contravenes a myriad of international laws. Moreover, the original military rationale for sustaining a base on Cuba no longer exists. Washington has closed similar bases in the region, including Roosevelt Roads in Puerto Rico, and the naval imperatives of the late 19th century have long since disappeared. Roosevelt Roads was shut down due to the Pentagon’s base-closing proceedings. There is no question that Guantanamo would be in for the same fate if it weren’t used as an instrument of spite against the Castro regime, rather than serving a useful function. In short, the US maintenance of Guantanamo is an anachronism, which it would do no harm to resolve, rather decidedly bringing distinct political benefits.

An uncertain history: the foundations of controversy

A mere three years after the Spanish-American War ended in 1898, the Platt Amendment of March 2, 1901, which regulated the withdrawal of US troops from Cuban territory, was passed by the US Congress. Although the terms of the preceding Teller Amendment of 1898 guaranteed Cuba’s independence after the conflict ended, the Platt Amendment changed the legal grounds for the ensuing US occupation. Washington would continue to be allowed to intervene in the internal and foreign affairs of the island, especially monitoring Havana’s debt repayment policy. More importantly, the bill created the basis for a long term US military presence in Cuba by stating that “to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”

Cubans, from the beginning, condemned the Platt Amendment as a violation of their sovereignty and Havana refused to accept it on these grounds, with the Constituent Assembly rejecting it twice. However, Washington authorities, guided by the then prevailing Manifest Destiny expansionist ideology, pushed for the amendment to be passed. With Cuba at the time being politically and economically dependent on the United States, and after a third vote was taken, the amendment was eventually included in the Cuban constitution of 1902, making the island a quasi-protectorate of the United States. For the next seven years, the US embassy would make the most important decisions in this pseudo-republic. This was so clearly understood when in 1962 US Ambassador Earl Smith, a prominent businessman at the time, wrote in his book which was provocatively titled ‘The Fourth Floor,’ that it was he who ran the island from his fourth floor office of the US embassy in Havana.

Although much of the Cuban population opposed what they perceived as the US imperialist occupation, a treaty that would give the United States jurisdiction over specific areas, including Guantanamo Bay, was signed by US President Theodore Roosevelt and Cuban President Estrada Palma in February 1903. It was assumed at the time that a generous, if irregular, hand out of currency to well placed pro-United States Cubans sealed the deal. The lease agreement between the two countries gave the United States “complete jurisdiction and control over and within said areas;” however, it also “recognizes the continuance of the ultimate sovereignty of the Republic of Cuba” over the territory of the base. On July 2, 1903 the terms of the lease agreement were specified in an additional treaty. It stipulated that the base could not be used for any commercial purpose, a clause that routinely has been ignored by the United States ever since. Further, the United States was obligated to pay Havana $2000 annually, a sum which would equate to over $50,000 today, even so, far less than the annual rent of a luxury New York City apartment. However, disregarding the inflation rate of the US dollar and rising land prices in Cuba, the annual leasehold figure was increased only once --- to $4,085 in 1934. The US government continues to offer to pay this meager sum for the 46.8 square miles of Guantanamo land to Havana, but Cuban authorities spurn the payment, protesting the illegitimacy of the American occupation.

Coaling station, refugee camp, torture facility

Shortly after its opening, the naval base at Guantanamo was utilized solely as a coaling station. In the following decades, as technology advanced and steamboats became obsolete, the US military used it for the refueling and resupplying of its navy vessels. During both World Wars, the alliance between Cuba and the United States meant that the base’s status remained unchanged, with the facility heavily involved in both conflicts. Following the Cuban Revolution in 1959, the diplomatic ties between Cuba and the United States quickly soured, until they were finally severed by President Eisenhower on January 3, 1961.

Since Fidel Castro came to power he continuously has articulated the idea that the US occupation of Guantanamo Bay is unlawful, because the treaty of 1903 is no longer valid. In 1964, as an act of protest, Castro cut off all supply lines to US facilities in the bay in retaliation for the US apprehension of 17 Cuban fishermen operating in US waters. In response, a desalination facility was built by US authorities and all other supplies have since been flown or shipped to the base. For three decades after this incident the base did not draw much international attention. In 1994 the United States launched Operation Sea Signal, which came about as a result of US immigration policies whereby Haitian and Cuban would-be refugees were picked up on the high seas as they tried to reach Florida, and were temporarily being housed at Guantanamo. Until 1996, Guantanamo served as a refugee camp for over 50,000 Haitian and Cuban refugees, who were seeking asylum in the US

Following the September 11 terrorist attacks and the ensuing war in Afghanistan, the base has served as a detention center for alleged terrorists, as part of the so-called and hugely controversial “preventative reasons” policy. Since 2002, the time spent by prisoners at Guantanamo has been marked by horror, controversy and debates over legality. The detainees arrived at the camp without knowing what evidence had been gathered against them, what charges they faced, or for how long they would be imprisoned.

Many have been kept for an indefinite period of time without being charged with any crime and some were made to suffer sexual or cultural humiliation at the hands of US officials, in the name of gaining intelligence and vital information. Such euphemisms as “enhanced interrogation techniques” were effectively implemented by the Bush administration in order to shield the ongoing inhumane treatment at the facility.

Interning suspects who have not been charged with a crime violates the civil rights provisions of Habeas Corpus, the Geneva Conventions, and the Universal Declaration of Human Rights of which the United States is a signatory. For engaging in these extrajudicial practices, the United States has received widespread criticism from the international community. In 2003, the Cuban National Assembly stated that “In the territory illegally occupied by the Guantanamo Naval Base, hundreds of foreign prisoners are subjected to indescribable humiliations.” Previously, Fidel Castro went so far as to call the base a “concentration camp.”

An investigative stronghold: a diplomatic catastrophe

US foreign policy towards Cuba has not only been ineffective, but also contradictory. The supposed purpose of the 47-year-old US embargo on Cuba was to “bring democracy to the Cuban people.” However, the US government itself moved suspects from detention camps like the one in Guantanamo to secret prisons all over the world so as not to be bound by the restraints of a democratic legal system. These actions reveal the inherently duplicitous nature of US policy in this regard. Although President Obama has now signed an order to close Guantanamo within the next year, he has failed to take a “moral high ground” on other American detention centers that have been havens for the United States to carry out unlawful, undemocratic practices. For instance, detainees at the Bagram detention center in Afghanistan were recently denied the right to challenge their case before a neutral judge; an outright inconsistency in the so-called restoration of democracy.

This makes perfectly clear that effectively reestablishing Washington’s reputation for probity abroad will not end with the closing of the internment camp in Guantanamo. If Obama is serious about undoing US policy in the course of its war on terror, and if he wants to again make this country into a law abiding society, he will have to ensure fair trials for all suspects formerly detained by the United States at Guantanamo Bay and then return the military base to Cuba, marking a clear break with its dark history. Such a reconstruction of relations would be beneficial for both partners, economically, politically and socially, especially due to the close geographic proximity of the two nations.

The legal perspective: a voidable treaty

It can be argued that from an objective perspective, the US occupation of Guantanamo is illegal and the 1903 treaty is invalid. International law professor and former UN lawyer Alfred de Zayas maintains that “the lease agreement is voidable.” As evidence he cites five international legal findings; the Doctrine of Unequal Treaties, the Emergence of New Peremptory Norms, the Implied Right of Denunciation, the Clausula Rebus Sic Stantibus and the Termination by Virtue of Material Breach.

The Doctrine of Unequal Treaties describes the voiding of treaties that had been entered into between unequal parties. Former Soviet judge Sergei Krylov articulated in 1947, at the International Court of Justice in The Hague, that treaties “by which an imperialist power imposes its will upon a weaker state” are invalid. Under this condition, treaties between imperialist superpowers and colonies were revoked in the process of decolonization. In reference to Guantanamo, it can be maintained that Cuba was not a fully sovereign state in 1903 when the treaty to lease one of the island’s finest natural harbors to the United States was made. Havana had emerged from 400 years of Spanish control in 1898, and taking the Platt Amendment into account, Cuba was in effect still under US military occupation when it declared its nominal independence on May 20, 1902. During this period, Havana came under great pressure from Washington to sign the agreement guaranteeing effective US sovereignty over the island.

Furthermore, the Emergence of New Peremptory Norms is mentioned by Zayas. It relates to the 1980 Vienna Convention on the Law of Treaties and can be applied to the Guantanamo case. Article 64 of that document states that if there is a new norm in international law, it retrospectively applies to all treaties. Consequently, if treaties do not comply with the new norm, they must be rendered invalid. The principle of self-determination, and by extension of this a nation-state’s full sovereignty over its soil, has been a peremptory norm of international law for many years now. Since the treaty between the United States and Cuba clearly violates this norm, it deserves to be annulled.

In addition to these provisions of a number of international laws, Zayas points out that article 31 of the Vienna Convention on the Law of Treaties argues that a treaty should be interpreted according to the context and the circumstances under which it was made. He makes the case that Cuba intentionally did not sell the land to the United States in the early 1900s, but retained sovereignty over the leased territory. Therefore, “a sovereign should be able to regain the exercise of jurisdiction over the territory in question, otherwise he is not a true sovereign,” Zayas contends.

Zayas also invokes the Clausula Rebus Sic Stantibus, which provides legal ground for a treaty to become invalid if there is a fundamental change in circumstances. A change in regime in Havana from a former ally to a foe, to which the United States has maintained a half-century embargo aimed at asphyxiating its economy, represents an essential alteration of an objective situation. He concludes that it is “an anomaly that the country that has imposed an embargo on Cuba for more than 40 years insists that it has a right to remain on its sovereign territory,” and Washington’s operation as a sovereign even though it all along has acknowledged that the harbor belongs to Cuba is also a contradiction.

Lastly, Zayas brings up what may be the most obvious reason for the invalidating of the 1903 agreement: the breach of contract by the United States. The treaty states that the territory is to be used for “coaling or naval stations only, and for no other purpose.“ The use of the land for establishing an internment camp and interrogation center “is wholly incompatible with the object and purpose of the treaty.” Furthermore, it was stipulated that the territory could not be used for commercial purposes. However, there are currently nine restaurants, seven bars, a bowling alley, a surfboard rental and several other businesses on the base.

The five legal standards listed above fully apply to the situation in Guantanamo and show that under international law, the 1903 treaty is invalid.

David vs. Goliath

Aside from the indisputable legal situation, it would be economically beneficial for the United States to abolish the base, and its relations with the region as a whole would undoubtedly benefit from such a move. The results of similar historical actions, like the reversion of the Panama Canal to Panama, and the Suez Canal to Egypt, demonstrate the diplomatic advantages of returning Guantanamo to Cuba, due to the goodwill it would engender. The US approach to Cuba has been perhaps the single biggest factor in the emergence of a tumultuous relationship between Washington and the rest of Latin America, and steps towards a thaw in its ties with Havana would surely strengthen the US image elsewhere, which is considered to be a major desideration involved in its attempts to reconstruct its Latin American policy.

Therefore, once the detention camp is closed, the territory itself should be returned to Cuba, as there is no reason to maintain the existing naval station. Fidel Castro called it “an arrogant act and an abuse of immense power against a little country,” for the United States not to return the base. Venezuelan President Hugo Chávez demanded on January 29 at the World Social Forum in Brazil that President Obama should “return Guantanamo and Guantanamo Bay to the Cubans because that is Cuban territory.” Demonstrably, it is up to the United States to comply with the law of nations and standards of international law. As of now Cuba, the weaker nation by far, can merely repeatedly demand the reversion of its land. At this point, Washington can start by fulfilling some of the fundamental duties of a state: namely, to abide by the application of the principles of international law to this dispute, while committing an act of comity and goodwill by returning Guantanamo to its rightful owner, Cuba.