How the US stole Guantanamo Bay from Cuba: a cautionary tale
By Kaleem Omar
Following a US federal judge’s ruling rejecting the Bush administration’s arguments that releasing the identities of Guantanamo Bay detainees would "violate the detainees’ privacy", the Pentagon on Friday - after four years of secrecy and obduracy - handed over documents that contain the names of hundreds of detainees held at the US military prison at Guantanamo Bay, Cuba.
The question is: Does the Bush administration really expect the world to believe that the reason why the names of the detainees was being kept secret was to protect their privacy? What will the administration think of next? The mind boggles.
The names were scattered throughout more than 5,000 pages of transcripts of hearings at Guantanamo Bay, but no complete list was given and it was unclear exactly how many names the documents contained.
It is a well-documented fact that the prisoners are held in harsh conditions and have no recourse to the protection of the law because the Bush administration says that since Guantanamo Bay is not US territory, American courts have "no jurisdiction" there.
Since Cuban courts don’t have jurisdiction there either, the prisoners exist in a sort of state of judicial limbo, with nobody they can turn to seek justice. To make matters worse, they continue to be grilled by US intelligence agents and military personnel who reportedly use torture to soften them up.
Cuba has surprisingly come under fire from some quarters for allowing such behaviour on its land. But Cuba has no power over this area of its own soil, as for the last hundred years Guantanamo Bay has been occupied by the United States and is separated from the rest of Cuba by one of the world’s deadliest minefields.
The area known as Guantanamo Bay covers nearly 118 square kilometres of eastern Cuba. It contains two airfields and is home to about 3,000 permanently stationed US military personnel, whilst a further floating population of thousands arrives and departs by air and sea each month.
The annual rent for the leasing of this land is 2,000 gold coins, equal to $ 4,085 (at the 1903 price of gold). This works out to an annual rent of one cent per square metre of land, which the US pays to Cuba by cheque. However, since the Cuban revolution of 1959, which brought Fidel Castro to power, no cheque has ever been cashed.
Since March 1959 Cuba has been demanding that the US return the base and has regularly had resolutions passed at the Non-Aligned Movement calling for the base to be returned - all to no avail.
Cuba was a Spanish colony for several hundred years. In 1898, just as the Cuban patriots’ independence army was about to achieve victory after 30 years of armed struggle against the Spanish Crown, the United States declared war on Spain after the US warship "The Maine" was allegedly torpedoed by the Spanish. "Remember the Maine!" became the US battle cry in a war in which Spain was defeated.
Later that year, rule over Cuba was transferred from Spain to the US at the Treaty of Paris, where no Cubans were present, after then-US President William McKinley had declared: "It wouldn’t be wise to recognise the independence of the Cuban Republic."
However, the Cuban struggle for independence looked likely to begin again, this time against US rule, and in 1901 the US introduced the Platt Amendment. This allowed the US president to hand over rule of the island to the Cuban people, but only after a government and constitution could be established that set out future relations between the two countries.
A major part of the constitution forced the future Cuban government to lease part of its territory to the United States for the establishment of US naval stations. The result was the 1903 Permanent Treaty, which decided that a piece of Cuban land was to be leased to the US. Thus, the naval base at Guantanamo Bay ceased to be a part of Cuban territory in 1903.
Only nine years later, the US imposed another agreement on Cuba, enlarging the size of the US area to what it is now, even though this covered an access channel which had previously been agreed as a shared channel, to ensure "Free trade."
In 1934, faced with the economic hardships of the Great Depression, the US began a so-called "Good Neighbour" policy and signed a Treaty of Reciprocity, which repealed the Platt Amendment and the 1903 Permanent Treaty, but maintained all stipulations concerning Guantanamo. However, at the very time when the treaty was being signed in Washington, over 20 US warships paid so-called "Friendly" visits to various points along the Cuban coast - a case of gunboat diplomacy at its worst.
According to international law expert Professor Alfred de Zayas of the University of British Columbia in Canada, the 1903 treaty that brought about the base at Guantanamo was invalid from the beginning, as it was imposed by force, following the US military occupation of Cuba after the Spanish-American War.
After four years of military rule, the United States decided against a complete annexation of Cuba, and instead imposed a system on it that would give the US political and economic control over the island nation.
The US administration made it clear that there would be no Cuban constitution unless it included the Platt Amendment, which demanded the right for US military intervention in Cuba and a naval base. Initially rejected in Cuba, the Platt Amendment had also been unpopular in the United States. One US senator described it as an "ultimatum to Cuba." The Cuban government had no other alternative but to yield to US pressure and agree to the lease if they wanted to have any form of independence.
The treaty was signed, supposedly granting Cuba independence, but in fact merely transforming it into a quasi-protectorate. Articles 51 and 52 of the Vienna Convention on the Law of Treaties (to which the US is a signatory) say that any treaty signed under coercion is illegal. It could be argued that the Vienna Convention only came into force in 1980, yet international opinion was way ahead of this.
In 1947, Serge Krylov, a judge at the International Court of Justice at the Hague, said that any treaties "by which an imperialist power imposes its will upon a weaker state" are invalid.
The Permanent Treaty may have been binding in 1903 (though even that is highly debatable), but is clearly illegal in the post-colonial age.
After the Second World War, the decolonisation process began in earnest and a new set of norms and principles based around the UN Charter meant that obsolete, unequal, colonial laws were being replaced. It is now a well-established principle that unequal treaties are bad in law.
In the 1970s, the Panamanian ambassador to the United Nations argued against the Panama Canal Treaty, which had created a lease that granted the United States sovereignty over the canal for an unlimited time. The Panamanian position was well-supported. The Peruvian ambassador said the Canal Treaty was "not in the spirit of the age" and the Canadians said it was "part of the old order."
During the discussions on the subject at the UN, the Friendly Relations Resolution of 1970 was used as constituting customary international law. In the case of the Panama Canal, the treaty had become obsolete, due to the creation of a new international order, encapsulated in the norms and principles of the UN. Panama won its case, and control over the canal eventually reverted to Panama, resulting in the hauling down of the US flag and the running up of the Panamanian flag over the Canal Zone.
The irony, however, is that the canal is now operated by a Japanese company, under a management contract with the Panamanian government.
Yet despite many calls from Cuba at the UN for the return of Guantanamo, there has not even been any discussion on the issue, which is hardly in keeping with the UN Charter and its obligation to negotiate disputes.
As if all this were not bad enough, even the terms of the Guantanamo Bay lease have been broken by the United States. The 1903 treaty permits a "base for naval and coaling purposes" and goes on to say that any commercial use would be illegal. But it is well-known that Guantanamo Bay now contains several commercial concessions, including a bowling alley and a fast-food chain.
Other uses have included an internment camp for Haitian refugees in the early 1990s, a logistical base for the US’s regime-changing invasions of Grenada and Panama, numerous acts of provocation against Cuba, as well as its present disgraceful as a prison camp - all of which break the terms of the lease.
More than a year into George W. Bush’s second term as president, the United States remains in illegal possession of the base and says it has no intention of leaving. So much for the US’s commitment to the rule of law.
CKA Moderator 
