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# The Guantánamo Bay detention camp: Yesterday, Today and Tomorrow

Christiana-Romana Avarli

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Christiana-Romana Avarli. The Guantánamo Bay detention camp: Yesterday, Today and Tomorrow. 2025 Annual Conference of the European Society of Criminology, European Society of Criminology, Sep 2025, Athens, Greece. hal-05478302

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https://hal.science/hal-05478302v1

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# The Guantánamo Bay detention camp: Yesterday, Today and Tomorrow

Presented at the 2025 Annual Conference of the European Society of Criminology,

Sept 2025

Christiana-Romana Avarli

PhD(c) Université Toulouse 1 Capitole
& Aristotle University of Thessaloniki

> "Whenever justice and liberty are separated,
> neither are safe"

Edmund Burke, an Anglo-Irish political thinker and
philosopher who is regarded as the founder of the political
philosophy of conservatism.

I begin my paper by invoking Burke's view on justice and liberty because these principles, which are fundamental to our society, transcend political ideology. They are recognized as two key principles of the Rule of Law in every society, in every country. I am also referring to a politician – political thinker because my topic entitled “The Guantánamo Bay detention camp: Yesterday, Today and Tomorrow” has certainly social and political connotations.

In the present analysis, I intend to examine the deliberate establishment of a “no-law” detention facility at Guantánamo Bay, Cuba. I will briefly present the history of the Guantánamo Bay detention camps and the legal obstacles the detainees had to face to achieve release during all US administrations – this is what happened Yesterday. I will continue with the Trump administration new policies for the use of the Guantánamo Bay detention facilities for the detention of undocumented immigrants arrested in the US – this is what is happening Today. And I will conclude with the effects of the implied acceptance of the “no-law” detention camps in Guantánamo Bay by the international community as the creation of a precedent could have a strong impact on the construction of other no-law facilities in other regions and even worse, on the establishment of a no-law regime applied by the powerful nations – I am here to examine what could happen Tomorrow. I reassure you that I will try to be careful with
my wording as I am neither a decision-maker, nor a foreteller to predict what could
happen tomorrow.

I. Yesterday

On the afternoon of 11 September 2001, President Bush opened a video teleconference with his principal advisors with the words “we’re at war”, and in a national address that evening he underlined that this is a “a war against terrorism”<fnref n="1" />. Guantánamo Bay<fnref n="2" /> was established by the United States in January 2002 as a place for the US authorities to hold people perceived to be “enemy combatants” in the war against terrorism<fnref n="3" />. The first detainees were transferred to the camp on 11 January 2002⁴.

Progressively, the US established a special legal regime through a number of
consecutive acts, namely, the USA Patriot Act of 2001⁵, the Military Order of
November 2001⁶ and the Detainee Treatment Act of 2005. Another key law was the
MCA 2006⁷ which tightened the existing legal framework and legalized international
law violations from the US by stipulating that “no alien unlawful enemy combatant
subject to trial by military commission under this chapter may invoke the Geneva
Conventions as a source of rights”<fnref n="8" />. Consequently, the US created the Military
Commissions that would provide the “enemy combatant” status to individuals, examine
their habeas corpus petitions and eventually judge them<fnref n="9" />. Those commissions were
criticized by law practitioners and human rights activists for their non-independence
and partiality<fnref n="10" />. Moreover, the US unilaterally decided not to grant the Geneva

<footnote n="1">¹ Le Monde Correspondent in Washington, “George Bush prépare l’opinion à une guerre qui s’étendra sur des années”, Le Monde, September 2001.</footnote>

<footnote n="2">² The U.S. naval base at Guantánamo, located in the southeast of Cuba, is territory leased by the United States.</footnote>

<footnote n="3">³ William Bourdon, “Les camps de détention illégaux : le cas Guantánamo”, *Au nom du 11 septembre ...* : Les démocraties à l’épreuve de l’antiterrorisme de Didier Bigo, Laurent Bonelli and Thomas Deltombe (authors) 2008, pp. 76-89.</footnote>

<footnote n="4">⁴ Sandra Szurek, “Guantánamo, une prison d’exception” in Gouverner, enfermer, La prison, un modèle indépassable, under the supervision of Philippe Artières and Pierre Lascoumes, 2004, Presses de Sciences Po, pp. 201-223.</footnote>

<footnote n="5">⁵ USA PATRIOT Act: Preserving Life and Liberty (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) adopted on October 26, 2001.</footnote>

<footnote n="6">⁶ Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, adopted on November 13, 2001.</footnote>

<footnote n="7">⁷ Military Commissions Act of 2006, Public Law 109-366, adopted on October 17, 2006.</footnote>

<footnote n="8">⁸ Paragraph 948b(g).</footnote>

<footnote n="9">⁹ Military Commissions Act of 2006 (MCA 2006).</footnote>

<footnote n="10">¹⁰ Amnesty international, “USA Guantánamo’s military commissions: a travesty of justice”, December 2006, online: https://www.amnesty.org/fr/wp-content/uploads/2021/08/amr511842006en.pdf.</footnote>
Convention<fnref n="11" /> protection to aliens even if the US has adhered to them and in any respect, article 3 prohibiting torture and inhumane treatment, including the violation of judicial guarantees, constitutes an obligation for States and part of customary international law.

Interestingly enough, MCA 2009¹² under the Obama administration repeated the wording of MCA 2006 with no decisive changes.

There is also rich jurisprudence from the US Courts regarding the habeas corpus petitions – the petitions that grant the right to detainees to challenge the legality of their detention and seek release. Most of the petitions were dismissed as the US Courts claimed that they did not have jurisdiction over Guantánamo Bay and the US law wouldn’t apply<fnref n="13" /> – even if all the above-mentioned laws applied and this can be interpreted as a selective way to apply law. Few of the petitions were granted with the opposite argument - that the US practically and effectively administered Guantánamo and the US law would apply<fnref n="14" />.

Consequently, most individuals were detained for many years without charges, let alone without any convictions. Most habeas corpus petitions were dismissed because, according to the US judges, US law was not applicable to Guantánamo. US unilaterally decided that the Geneva Conventions protection wouldn’t apply to detainees. There was still no response over which was the applicable law in Guantánamo. The US violated all human rights conventions to which it is part as signatory and as founding member such as, the Geneva Conventions, the International Covenant on Civil and Political Rights (article 14), the Universal Declaration of Human Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as well as the Nelson Mandela Rules which establish the minimum rules applied for the treatment of detained individuals.

Needless to say, that the US has signed, ratified and is expected to guarantee human rights protection for all individuals detained by the US authorities.

<footnote n="11">¹¹ The Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949.</footnote>

<footnote n="12">¹² The Military Commissions Act of 2009 (MCA 2009).</footnote>

<footnote n="13">¹³ ICRC, “In re Guantánamo Detainees Cases, District Court for the District of Columbia”, IHL Database, 31 January 2005.</footnote>

<footnote n="14">¹⁴ Boumediene v. Bush, 553 U.S. 723 (2008).</footnote>
## II. Today

As of July 2025, **15 men** are still detained in the Guantánamo Bay detention facilities in the context of the “war against terrorism” even if President Biden had promised to close the camp following his election in 2020¹⁵. However, the above-mentioned 15 detentions are supposedly of criminal nature and are linked to the 9/11 attacks that took place 24 years ago.

Today’s administration under President Trump informed the world that Guantánamo Bay detention facilities not only will they not close, but they will be expanded to detain the undocumented immigrants arrested in the US. On January 29, 2025, US President “directed the Secretary of Defense to take all appropriate actions to expand the Migrant Operations Center at Naval Station Guantánamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the US ... this memorandum is issued in order to halt border invasion, dismantle criminal cartels and restore national sovereignty”<fnref n="16" />. President Trump is planning to send around 30.000 immigrants to the camp – according to US data he has sent around 500¹⁷. But there is an important number of legal questions that arise:

* Who are the detainees? What are the exact reasons of their detention? Do they receive legal aid in Guantánamo? Where are they going to be sent? We still do not dispose of any information regarding their identities, the accusations against them and the legal protection detained people are entitled to.

* Why has Guantánamo Bay been created? In 2002, political authorities stated that the detention facilities would serve as a space to house terrorists. Today they are used for undocumented immigrants. Do the US, one of the biggest countries in the world, face problems with their prison facilities? Don’t they have space to detain them?

* And I will repeat the question that will guide us towards the final part of this discussion: which is the law applied to those detained in Guantánamo Bay? Is it the US

<footnote n="15">¹⁵ Center for Constitutional Rights, “Guantánamo by the Number”, ccrjustice.org.</footnote>

<footnote n="16">¹⁶ Memorandum for the Secretary of Defense the Secretary of Homeland Security, Expanding Migrant Operations Center at Naval Station Guantánamo Bay to Full Capacity, The White House, January 29, 2025.</footnote>

<footnote n="17">¹⁷ Haley Britzky, Priscilla Alvarez et Annie Grayer, “Trump plans to house migrants at Guantánamo Bay face mounting hurdles, internal doubts”, CNN Politics, March 2025.</footnote>
administrative law and more precisely the Immigration and Nationality Act? Is it the
Cuban law? Or, the law of the individual's nationality?

The first-class action complaint for declaratory and injunctive relief and petition for writ of habeas corpus has been filed at the United States district Court for the District of Columbia by non-citizens held in civil detention in Guantánamo Bay who were until recently detained at immigration detention facilities inside the US. We are anxiously waiting for the first decisions of the American Courts to be published in order to understand the legal framework and the applicable law to Guantánamo Bay.

The history of Guantánamo Bay detention facilities and the imprecise (in the past) - unknown (today) legal framework guided me towards the defense of the “no-law” doctrine which is not new to the legal world. It can refer to people punished for an act not criminalized by law – which is prohibited thanks to the “no crime without law” principle. It has already been used to explain the legal vacuum in Guantánamo Bay considering that most of the detainees were not judged, not even charged for a crime which could in a way justify their detention.

### III. Tomorrow

US President Bush in 2002 started renting for a few dollars Guantánamo Bay in Cuba to create a prison far from the US – in that prison detained people wouldn’t be charged. They would live there – most of the times tortured. They wouldn’t know which are their rights and the writ of habeas corpus wouldn’t apply to them. After 24 years we still do not know if the US law was applicable to the detainees in Guantánamo Bay or not. President Bush was able to rent a space and create a prison in which “no-law” would apply.

US President Trump in 2025 started using Guantánamo Bay detention facilities for undocumented immigrants even if according to US law, there is not statutory authority for the government’s use of Naval Station Guantánamo Bay to detain noncitizens who are awaiting removal under the Immigration and Nationality Act – the base is not part of the United States for purposes of the INA<fnref n="18" />. President Trump decided to send them to Guantánamo in order to benefit from the “no-law” framework that is governing the detention facilities since day 1. This is proven by the fact that if he wanted to apply

<footnote n="18">¹⁸ The Immigration and Nationality Act (INA) was enacted in 1952.</footnote>
INA, the US Courts would do it in the US and they would send immigrants back to their countries from the US – there is no practical need to use and pay for the Guantánamo Bay facilities for a legal procedure that could be implemented in the US territory.

Guantánamo Bay has become a “no-law” space for governmental authorities that would prevent the detained people from exercising their rights – their human rights. And this creates an important precedent that the international community should consider.

If we accept that a powerful State can lawfully rent a base and create a no-law space to instill fear or for various political reasons, this is the beginning of a **no-law phenomenon**<fnref n="19" />. The US criminal and/or immigration law and human rights law are not applied to detainees in Guantánamo Bay because the base was outside of the US – the rights of the detained were not respected. We are witnessing the same no-law phenomenon in Gaza where humanitarian law is not applied following the killing of civilians in Palestine. Is this situation unlawful? I think that most of us will agree that it is. But is it also lawless? **It is lawless** as long as the international community cannot guarantee humanitarian law application and assistance in **those** territories because borders are closed. Humanitarian law cannot exist under these circumstances. **It is lawless** as long as the international community does not impose effective sanctions against these violations. It tacitly accepts that there are lawless territories which depend exclusively on political decisions. It is one thing to have a law, another to apply it and a completely different situation to act as if this law never existed – and Guantánamo illustrated this situation.

Guantánamo Bay may seem outdated from a legal perspective, but I will end this paper by repeating that the facilities opened in 2002, 23 years ago. And we hope that these “no-law” phenomena will soon cease.

Thank you.

<footnote n="19">¹⁹ William Bourdon, “Les camps de détention illégaux : le cas Guantánamo”, Au nom du 11 septembre ... : Les démocraties à l’épreuve de l’antiterrorisme de Didier Bigo, Laurent Bonelli and Thomas Deltombe (authors), 2008, pp. 76-89 ; Mastor Wanda, “La prison de Guantánamo : réflexions juridiques sur une zone de « non-droit »”, Annuaire français de droit international, volume 54, 2008, pp. 23-44.</footnote>