Understanding Armed Conflict’s Environmental Impact

United Nations headquarters, New York City

United Nations headquarters, New York City

Chris Jenks of SMU Dedman School of Law was invited to discuss “Protection of the Environment: An Operational Perspective” at the United Nations in New York City Oct. 24. This is his second of two blogs; for his first one, go here.

I was at the United Nations in New York City to participate in a seminar on protecting the environment during armed conflict. The seminar’s sponsors included the permanent missions to the United Nations of Sweden, Denmark, Finland, Iceland and Norway, as well as Rutgers University’s International Union for Conversation of Nature World Commission on Environmental Law.

The Nordic countries are very interested in a host of environmental issues, depending on what you mean by “environment.” As I learned, defining what seems like a basic term is not so easy. (While the Nordic countries are very progressive in a number of environmental areas, in others, notably whaling, several of them are decidedly less so.)

In addition to the Nordic countries’ general interest in the environment, the International Law Commission included protection of the environment in relation to armed conflict in its program of work in 2013. As I mentioned in the first blog, the ILC is an offshoot of the General Assembly’s Sixth Committee, which deals with legal matters.

The ILC appointed Dr. Marie Jacobsson, the principal legal adviser on international law at the Swedish Ministry of Foreign Affairs, to facilitate the ILC’s work. Dr. Jacobsson hosted the seminar, designed to discuss the relevant laws and gaps, and how they should be addressed.

The United Nations headquarters is in midtown Manhattan. Solidifying that I don’t know New York City well, I elected to stay at Fort Hamilton, a U.S. Army post in the southern part of Brooklyn (literally under the Verrazano Bridge). It’s less than 12 miles away, but that’s 12 New York City miles, so that means an hour and a half or more on a series of subways, or an expensive cab ride.

Swedish flag

Swedish flag

Finding the right entrance at the U.N. was a challenge, but fortunately the Swedish mission had positioned someone outside, holding a mini Swedish flag, to help.

Security-wise, actually entering the U.N. is similar to entering a U.S. airport, with the same take-out-your-laptop, limited-liquids approach.

I found my way to the conference room where our seminar would take place. The U.N. General Assembly was, and is, in session, so our seminar was one of any number of meetings on a wide range of topics happening at the same time. For example, here is this week’s schedule of General Assembly meetings.

The U.N. is, of course, international. What that means is that some signs and almost all U.N. documents are in all of the official U.N. languages (Arabic, Chinese, English, French, Russian and Spanish). It also creates challenges for the restaurants and snack bars there. On a early morning coffee break, I was able to chose from a bagel — or sushi.

The seminar’s attendees included representatives from governments, the U.N., the International Committee of the Red Cross, scientists, environmentalists, and of course, most important of all, university professors.

The seminar operated under the Chatham House Rule. Named after a policy institute in London, the rule means that participants are free to use the information they receive at the meeting but may not link what was said to who specifically said it. It’s a rule designed to encourage openness and candor in sharing information.

The seminar included a host of presentations on numerous topics related to protecting the environment during armed conflict, including one focused on Iraq’s marshlands, how the Eritrea-Ethiopian Claims Commission handled issues, protecting the environment in the 21st century and how militaries determine if it’s legal to use a certain type of weapon.

I came away from the seminar with a lot more questions than I had when I started it. This is a very challenging area of the law.

Issues include:

• How do you define the environment? Most international groups cannot agree on a definition. I think if we all tried to define the environment with family or friends, the same outcome would result. Does the definition include cultural property? You can probably guess what came next — how do we define cultural property?

Why do we want to protect the environment? Is it protection of the environment as such or only as the environment impacts people? Imagine the dropping of a 2,000-pound bomb in the middle of barren desert. If you’re protecting the environment as such, you probably have concerns about the bomb. If your concerns are about impacts on people, and none are here, you probably don’t have concerns about the bomb.

One of the main challenges in my view is that the law of armed conflict only regulates a small percentage of environmental harm — direct harm — and only in a small percentage of armed conflicts.

The Additional Protocols to the Geneva Conventions state that “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.”

The first problem is the lack of agreed-upon meanings of “widespread,” “long-term” and “severe.” The second problem is that the prohibition only applies to international armed conflict (IAC), one or more countries fighting one or more countries. It does not apply in non-international armed conflict (NIAC), where one country is fighting a civil war or insurgency. The law not applying to NIAC is particularly unfortunate as the vast majority of the armed conflicts that have occurred in the last 50 years have been NIAC. Most estimates are that about 90% of conflicts are internal or NIAC, and 10% or less are interstate or international.

On the issue of direct harm, the law restricts people from literally targeting the environment: Blowing up a dam, drying up a marsh to drive out people living there or dropping dangerous chemicals like agent orange to defoliate forests and destroy crops. This obviously can and does happen; “60 Minutes” has done a couple of stories about what Saddam Hussein did to Iraq’s marshlands and the people who live there.

But the limited law we have doesn’t regulate passive harm to the environment. Passive harm is not intentional, it’s the incidental effects of military operations; for example, think tens of thousands of military armored vehicles driving up and down roads. Over time, that’s bound to have some effects on the environment. Those effects aren’t intentional, but they nonetheless exist.

Also consider when the U.S. military operated burn pits in Iraq and Afghanistan; service members often burned pretty much everything, including things that were toxic. So again, no one was intending to harm the environment, but that was an outcome, as was thousands of U.S. veterans who now have serious skin, eye and respiratory issues.

Passive or incidental harm likely constitutes the vast majority of the harm to the environment during armed conflict. But the international community hasn’t been able to do much with prohibiting (and punishing) those who directly and intentionally harm the environment during armed conflict, so the more serious problem of confronting passive harm seems a ways off.

I left the seminar glad to have participated, but as I mentioned earlier, with more questions than when I arrived. My sense is there is a huge gap between the rhetoric of people and governments talking about protecting the environment during armed conflict versus agreeing on even what the terms mean.

Perhaps protecting the environment during armed conflict is now on the global radar screen, similar to land mines and cluster munitions 20 years ago.

For many years the focus was on raising awareness and educating people about the problems land mines and cluster munitions pose. Eventually the international community established several conventions that regulate and in some cases prohibit their use. If that’s the case with the environment, there’s a long road ahead — and I’m not sure when we will meaningfully start the trip. — C.J.

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U.N. Organization & Involvement in Environment Protection

United Nations headquarters, New York City

The United Nations headquarters, New York City

Chris Jenks of SMU Dedman School of Law was invited to discuss “Protection of the Environment: An Operational Perspective” at the United Nations in New York City Oct. 24. This is the first of two blogs; for the second  one, go here.

Before discussing the seminar, I thought some general background information on the United Nations might be interesting. I also can explain how the U.N. is involved in protecting the environment during armed conflict.

The international community established the U.N. on Oct. 24, 1945, by ratifying the United Nations Charter. The U.N.’s formation followed two world wars that claimed millions of lives within 25 years of each other. Unsuccessful efforts to ensure peace following World War I included the League of Nations, an intergovernmental organization designed to maintain world peace, and the Kellog-Briand Pact’s idealistic ban on warfare.

Something here

A new building housing the United States Mission to the United Nations, across from the U.N. headquarters, was dedicated in 2011.

While the UN’s formal establishment was not until the Charter’s ratification after the conclusion of World War II, some 50 countries signed the Charter in San Francisco in June 1945 when the war with Japan was still ongoing. China, the Soviet Union, the United Kingdom and the United States developed the Charter the preceding summer, 1944 — roughly a year before the end of the war with Germany.

United States Mission to the United Nations, across from the U.N. headquarters

The structure was designed by lead architect Charles Gwathmey, responsible for the 1992 renovation of Frank Lloyd Wright’s Guggenheim Museum in New York City.

The U.N. Charter established six principal parts of the United Nations: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat. Over time the U.N. also has formed 15 agencies and numerous programs and bodies.

The U.N. headquarters is in New York City pursuant to an agreement between the U.N. and the U.S. And while much of the U.N. is in NYC, there are U.N. offices in a host of countries around the world. Not counting peacekeepers there are more than 80,000 U.N. employees.

The organization’s annual budget exceeds $5 billion (U.S.), which is derived from assessments on member countries. A complicated formula determining the amount each country pays to the U.N. is based on a host of factors, including gross national income. The result is that the U.S. assessment constitutes 22% of the U.N.’s budget. From there the next highest contribution is about 11% from Japan, and the contributions drop off from there.

The General Assembly is the main deliberative body of the U.N. and includes all member countries, each with one vote. Currently there are 193 member countries in the U.N., with South Sudan being the most recent addition in 2011. Each member country has delegates who operate out of offices known as missions, ones that are located in New York City, generally close to the U.N. (The U.S. mission is across the street.)

The U.N. Security Council is the organ that can authorize the use of force.

Not surprisingly when you think about the U.N.’s formation, it was the major allied powers from WWII — the United States, United Kingdom, Soviet Union, France and China (the P-5), that received permanent seats on the Security Council — and the ability to veto any proposed action. In addition to those five permanent members, 10 other countries are represented on the Security Council, with slots rotating among the world’s other countries. After the U.N. recently held elections, Angola, Malaysia, New Zealand, Spain and Venezuela were elected to serve a two-year term as non-permanent members of the Security Council, joining the P-5 and other non-permanent members Chad, Chile, Jordan, Lithuania and Nigeria, whose terms expire at the end of 2015.

The Security Council’s primary responsibility is to maintain international peace and security. To authorize the use of force — say, a peacekeeping mission — requires affirmative votes by nine of the 15 Security Council members and the absence of a veto by any of the five permanent members. (Thus the permanent members can’t dictate when the U.N. will deploy peacekeepers, but they can dictate when it won’t.)

It’s interesting to think that in our grandparents’ lifetimes, the permanent members of the Security Council all fought as allies on the same side during WWII. Yet since the start of the Cold War less than five years after the U.N.’s formation, permanent members frequently fight among themselves (bureaucratically and ideologically, at least). Indeed disagreement between various combinations of those former allies is viewed by many as one of if not the largest obstacle to the U.N. taking effective action. Most recently these challenges have been cited when examining the Security Council and the opportunity to end the ongoing civil war in Syria.

The Economic and Social Council coordinates the U.N.’s economic and social work. This means coordinating the actions of a host of agencies and programs, including the Food and Agriculture Organization, the World Health Organization, the U.N. Educational, Scientific and Cultural Organization (UNESCO), and programs such as the U.N. Development Program, the U.N. Children’s Fund and the Office of the U.N. High Commissioner for Refugees.

The U.N. Charter established the Trustee Council to supervise the administration of Trust Territories, former colonies or dependent territories. Since its creation, the Trustee Council has assisted more than 70 former colonies in gaining independence. The last territory to do so was Palau in 1994. Since then the Trustee Council voluntarily suspended its activities, though it remains able to meet and act as needed.

The International Court of Justice (ICJ) is the U.N.’s judicial branch and located in The Hague, Netherlands. The ICJ only deals with disputes between countries, not individuals — and countries must agree to be subject to ICJ’s jurisdiction.

Presiding over ICJ cases are 15 judges, from different countries around the world, who serve nine-year terms. The U.S. withdrew from the court’s jurisdiction in 1986 following a ICJ decision that the U.S. violated international law by supporting rebel groups that opposed the Nicaraguan government. More recently the U.S. and the ICJ have disagreed over America’s obligations to advise Mexican nationals on death row about their rights to contact the Mexican consulate.

The last U.N. organ is the Secretariat, which comprises the international staff. With more than 16,000 global civil servants, the Secretariat administers the programs and policies of the other UN branches. Heading the Secretariat is the Secretary General (currently Ban Ki Moon from South Korea), who is appointed by the General Assembly for a five-year term.

The General Assembly may discuss any matter arising under the U.N. Charter, excluding topics currently being considered by the Security Council. Decisions on admitting new member countries and the U.N. budget are decided by a 2/3 majority. Other issues are decided by a simple majority. In addition to member countries, two entities have a standing invitation to participate as observers in the work of the General Assembly and maintain a mission at the U.N. headquarters, the Holy See (an ecclesiastical jurisdiction of the Catholic Church) and Palestine.

The U.N. General Assembly

The General Assembly, where 193 members of the U.N. discuss international issues.

The General Assembly meets for debate and discussion, but deals with many of the substantive issues through six main committees:

  • First Committee (Disarmament and International Security): Concerned with disarmament and related international security questions
  • Second Committee (Economic and Financial): Concerned with economic questions
  • Third Committee (Social, Humanitarian and Cultural): Concerned with social and humanitarian issues
  • Fourth Committee (Special Political and Decolonization): Handles a variety of political subjects not dealt with by the First Committee, along with decolonization
  • Fifth Committee (Administrative and Budgetary): Deals with the U.N.’s administration and budget
  • Sixth Committee (Legal): Deals with international legal matters.

How does this relate to my traveling to the U.N. headquarters to speak on armed conflict and the environment? Remember that the General Assembly does much of its work through the six committees mentioned above. The Sixth Committee is the legal committee dealing with international legal matters. In the second session of the U.N. General Assembly in 1947, the committee recommended, and the General Assembly approved, establishing an International Law Commission (ILC) to promote “the progressive development of international law and its codification.” In 2013 the ILC decided to consider the protection of the environment in relation to armed conflicts. — C.J.

Next up: My thoughts on the seminar.

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Jenks’ U.N. Talk on Armed Conflict & the Environment

Jenks thumbnailMilitary Law expert Chris Jenks, an assistant professor at SMU Dedman School of Law and director of the Criminal Justice Clinic, spoke Oct. 24 at the United Nations headquarters in New York City. His topic, “Protection of the Environment: An Operational Perspective,” was part of a seminar on armed conflict and the environment hosted by a Special Rapporteur for the U.N.’s International Law Commission.

Lt. Col. Jenks (U.S. Army-ret.) is a decorated military officer who has served as a Judge Advocate in Korea and Iraq and also as chief of the Army’s International Law Branch at the Pentagon. Follow him on Twitter @ChrisJenks_SMU.

 

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The Long, Costly Road Ahead

 

Gitmo exteriorSMU Dedman School of Law Prof. Chris Jenks visited Naval Station Guantanamo Aug. 11-15. This is the fifth and final blog of the series.

Ostensibly I traveled to Gitmo to observe the military commission proceedings against five members of al-Qaeda who allegedly planned the Sept. 11, 2001, terror attacks. Included among them is Khalid Sheikh Mohammed, who once boasted, “I was responsible for the 9/11 operation from A to Z.”

Mohammed_bef_aft

Khalid Sheikh Mohammed in 2003, left, and in early 2012.

Khalid Sheikh Mohammed's red beard as shown in this courtroom sketch.

Mohammed has undergone a radical transformation. And since spring 2012, he’s been dying much of his beard henna-red, as shown here.

I say “ostensibly” because although the military commission was to be in session Monday through Friday from 9 a.m. to 5 p.m., we were in court a total of six hours. For the week.

The only thing I saw accomplished was that the military judge reconsidered an earlier ruling he’d made to break the case of one of the 9/11 planners away from the other four. As a result, all five are back in one joint 9/11 case, which is another way of saying the case has returned to square zero.

It’s difficult to convey all the time and effort that goes into having the prosecution, defense, translators, analysts, etc., at Gitmo. And the security involved in moving someone like Mohammed and the other 9/11 planners is what you would expect: A massive undertaking that basically shuts down the entire place. Yet when everyone is present in court and there’s an opportunity to resolve issues and move toward a trial, little, if any, progress is made.

I didn’t talk with the victims’ families. I don’t know what their expectations or goals were in traveling there. But if it was to achieve some kind of closure, they have to have left bewildered and disappointed.


I didn’t talk with the victims’ families. I don’t know what their expectations or goals were in traveling there. But if it was to achieve some kind of closure, they have to have left bewildered and disappointed.


The question everyone asks is why is this taking so long? The short answer is that this is the largest case in U.S. criminal justice history, with 2,779 victims and hundreds of thousands of documents, witnesses and evidence across many continents. Also consider that while only a small percentage of the evidence is classified, that’s a small percentage of hundreds of thousands of documents. That’s a lot of classified documents. Add to that the manner by which the U.S. government determines what information is classified: Put mildly, said process is quirky, cumbersome and slow.

Another oft-asked question is why military commissions? Military commissions fill a space between traditional military courts-martial and federal court trials. The exigencies of combat limit the ability of the military to collect and process evidence in a way that would be admissible in a traditional setting.

For instance, if four U.S. Army soldiers in Afghanistan capture a member of al-Qaida you can expect they’ll immediately try to question him while pointing loaded weapons at him. That’s simply a battlefield reality and necessity. Admittedly, pointing a weapon at someone while yelling a series of questions is coercive, and likely not admissible at a courts-martial or federal court. In addition, the manner in which the soldiers collect evidence is not as rigorous as the FBI and CSI.

But some Gitmo detainees were captured by the FBI or CIA, not the military. In some minds that undermines the rationale of military commissions. To others, the issue of who is captured where doesn’t matter: the U.S. is fighting members of al-Qaida wherever it finds them.

A key factor in all this is the manner in which the U.S. treated some of the detainees — a manner that went well beyond the inherent coercion of battlefield capture and questioning. As President Obama recently acknowledged, “We tortured some folks.” And if the actions didn’t constitute torture, they may have included cruel, inhumane or degrading treatment (CIDT), which violates the Geneva Conventions.


As President Obama recently acknowledged, “We tortured some folks.” And if the actions didn’t constitute torture, they may have included cruel, inhumane or degrading treatment (CIDT), which violates the Geneva Conventions.


It’s unclear how the military commission will account for the accused 9/11 planners potentially having been tortured. It’s important to know that military commission rules don’t allow the government to use, directly or indirectly, any statement obtained through torture or CIDT. A notable result of that: What would have been a joint 9/11 trial of six al-Qaida members is now a trial of five.

The U.S. treatment of the sixth accused 9/11 planner, Mohammed al-Qatani (who purportedly tried to be the 20th hijacker), included severe isolation, exposure to cold, sleep deprivation and forced nudity — all of which, according to the U.S. government, left him in a “life-threatening situation.” Given that, and the fact that most of the evidence against al-Qatani was the product of torture or CIDT, the U.S. decided to not send his case to trial.

We’re reminded of this awkward fact by how the military commissions’ courtroom is outfitted within the $12 million Expeditionary Legal Complex. When the courtroom was built, the plan was to have the 9/11 trial include al-Qatani. Thus there are six defense tables, with one left conspicuously empty.

The military courtroom at Camp Justice.

The military courtroom at Camp Justice.

Our group, including members of the media, non-governmental organizations and 9/11 victims’ family members, witness the proceedings in a small sound-proofed room separated by a clear partition at the back of the courtroom. Though a couple of TV monitors allow us to see the proceedings in real-time, the most challenging aspect of observing the commissions is, for security reasons, having to get the audio on a 40-second delay.

While were there, four of the five 9/11 planners on trial are wearing head scarves in support of Palestine in the ongoing Israeli-Palestinian conflict. We watch a weird moment unfold during a break, when one of the accused offers an extra headscarf to the planner not wearing one. A lot of confused gesturing unfolds across the defense tables, leading some in our group to liken it to a situation in which one person obviously didn’t get the company’s dress memo.

We also see that 9/11 planner has several detailed military defense counsel, as well as “learned counsel” — an attorney experienced in death penalty cases.

By the week’s end the military judge recessed the commission until October. Its unclear whether the next time it convenes the proceedings will transpire any differently than what weve observed. If history is any indication, the answer is, unfortunately, no. Like Sisyphus, doomed to perpetually push the same boulder up the same hill every day, there’s a kind of “road to perdition” aspect to all this.

When we weren’t in court (which was the vast majority of time), we met with counsel for both the defense as well as the prosecution, and both were very generous with their time. We also sat in on two press conferences. This reminds me of my largest takeaway from the week: How press conference content is delivered and how the media seems to perceive and process it.

As it stands now, the defense and their attorneys, who are arguing for liberty and American values, are in sole position of the moral high ground, despite the fact they are representing individuals alleged to have killed nearly 3,000 people.


 As it stands now, the defense and their attorneys, who are arguing for liberty and American values, are in sole position of the moral high ground, despite the fact they are representing individuals alleged to have killed nearly 3,000 people.


When not discussing the detainees’ trial and/or treatment, we have time to take in the setting. The water around Gitmo is amazing, with two and three different shades of blue. In the absence of a city setting, the skies at night are filled with stars, and with a certain type of plankton in the water there, it almost looks like fireflies are dancing under water. But then the reality of where we are returns.

During the day, our escorts continue to drive us around Gitmo — mostly to the dining facility or navy exchange store. We meet locals who talk about what a safe place Gitmo is for raising a family, which is an odd thought, especially as I see a little girl, eyes beaming, leave the exchange with a new doll. Afterward we pass green energy sources while traveling to meet with a defense counselor in an office of the Gitmo gym. It occurs to me then that Gitmo is an onion of sorts, with layer upon layer of the surreal.

Despite the time and cost expended on this place thus far, the American people don’t realize the commissions really haven’t even started. They don’t realize how much more is still to come, how long that will take and how expensive it will be, at least if detention and commissions remain at Gitmo.


Despite the time and cost expended on this place thus far, the American people don’t realize the commissions really haven’t even started. They don’t realize how much more is still to come, how long that will take and how expensive it will be, at least if detention and commissions remain at Gitmo.


For example, the 9/11 trial won’t be for at least another year. Then, the appeals that are certain to follow will take more than a decade. Now consider that the detainee population at Gitmo ranges from as young as 30 to as old as 67. That means that the U.S. may be detaining members of al-Qaida for 50 years to come. And at a staggering cost.

According to recent government reports, the cost per year to operate just the detention facilities at Gitmo is $454 million a year (and so far has cost the U.S. more than $5 billion). That breaks down to $2.7 million per detainee per year. Compare that to the roughly $78,000 a year to incarcerate someone in a maximum security prison in the U.S.

In anticipation of increasing medical needs of the aging detainees, the Department of Defense is requesting about $11 million for a medical facility best equipped to offer geriatric care for aging al-Qaida members from now until beyond 2050.

Does the U.S. really want to continue down that path? And, more important, does it even recognize the path it’s on? — C.J.

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Camp X-Ray: From Cuban Refugees to Al-Qaida & Taliban Detainees

Guantanamo overview SMU Dedman School of Law Prof. Chris Jenks visited Naval Station Guantanamo Aug. 11-15. This is the fourth blog of the series.

Before the 9/11 attacks, if someone knew about Naval Station Guantanamo Bay it was likely for one of two reasons:

  • The 1992 movie “A Few Good Men,” in which Jack Nicholson, playing the part of Marine Col. Nathan Jessup assigned to Gitmo, spoke of eating breakfast “300 yards from 4,000 Cubans trained to kill me” and whether Tom Cruise could or couldn’t handle the truth.
  • The role Gitmo played as refugee camps, first for Haitians and later for Cubans from 1991 to 1996.
refugees

Haitian refugees, 1991

While “A Few Good Men” was entertaining, Gitmo’s role as a refugee camp was more significant, since it established the conditions for future detention of al-Qaida and Taliban members.

In 1991, a military coup d’etat in Haiti prompted thousands of Haitians to flee the country in hopes of reaching the U.S. The U.S. Coast Guard intercepted some 41,000 of them and redirected them to Gitmo. As a result, the U.S. constructed a series of camps at Gitmo to house the refugees while considering the Haitians’ asylum claims.

The U.S. deemed many of the refugees to be economic migrants, not political refugees, and returned them to Haiti. Even more controversial was the status of the refugees who qualified for asylum but were denied entry into the U.S. because they were HIV-positive. This generated considerable backlash, and ultimately litigation. It wasn’t until late 1993 that the Clinton administration agreed to close the camp and allow the remaining Haitian refugees to enter the U.S.

Refugee camp at Gitmo, 1990s

Refugee camp at Gitmo, 1990s

About a year after the detainment camp closed, it was reopened, this time for an influx of Cuban refugees. After a series of anti-government protests in Havana, Fidel Castro allowed anyone wanting to leave Cuba to do so. Some 100,000 Cubans did just that, and headed to Gitmo on homemade rafts, boats, even inner tubes — traveling there by sea to avoid the landmines separating Gitmo from the rest of Cuba. (Interesting aside: Both the U.S. and Cuba have planted 55,000 mines along the perimeter of Gitmo, making it the largest minefield in the western hemisphere and second-largest in the world [Korea being the largest]. In 1998 President Clinton directed the removal of U.S. mines. The Cubans have yet to remove their mines.)

With the U.S. again in the business of housing and processing refugees at Gitmo, a series of camps were built. The military, ever fond of the phonetic alphabet, named the first camp “Alpha,” then “Bravo,” “Charlie,” etc. There were camps for families, camps for single men, camps for kids without parents. There was even a camp for those who caused problems in the other camps: Camp X-Ray.

Camp X-Ray, 2002

Camp X-Ray, 2002

Unlike the communal-style refugee camps, Camp X-Ray was a tougher confinement facility, with barbed wire atop chain link fences, guard towers and chain-link housing areas for the refugees. After the Cuban refugee crisis was resolved, the U.S. closed the camps in 1996. But fast-forward to January 2002 — three months after the U.S. invasion of Afghanistan following the 9/11 attacks: With the U.S. fighting in Afghanistan, and in the process capturing enemy belligerents, the question of where to house the detainees arose. The answer, for reasons we may never fully understand, was Gitmo.

So, here we are.

Capturing enemy belligerents is part and parcel of armed conflict. Each side’s military may capture and detain the other side’s combatants for the duration of the conflict. And typically, housing those who are captured away from the battlefield doesn’t pose a problem. During World War II, America housed hundreds of thousands of German and Italian prisoners of war in camps in the U.S.

In this case, real problems arose when the U.S. unwisely (and incorrectly) decided that no part of the Geneva Conventions applied to or protected members of al-Qaida and the Taliban. The Geneva Conventions form the basis of military regulations, training and manuals for detention operations, so excluding them created both a legal and practical void, one later recognized as incorrect or impermissible by the U.S. Supreme Court.

The U.S. military filled this void with “enhanced interrogation techniques” that allowed for a variety of actions against the detainees, including stripping them of clothes, 24 straight hours of interrogation and stress-inducing exploitation of their phobias. Even worse, the CIA introduced a host of other techniques that included waterboarding, per the guidance of the Department of Justice. While some of this mistreatment occurred outside Gitmo, some of it most assuredly occurred at Gitmo, beginning at Camp X-Ray.

guantanamo2

Detainees at Gitmo’s former Camp X-Ray

One of the iconic images from the “Global War on Terror” (above) shows detainees at Camp X-Ray, which the U.S. initially utilized to hold al-Qaida and Taliban detainees for four months. (So now if you see the upcoming movie “Camp X-Ray,” starring “Twilight” actress Kristen Stewart, and hear about the plan to house detainees there for eight years, you’ll know that’s not correct.)

During this time the U.S. purportedly so abused Saudi detainee Mohammed al-Qahtani, who allegedly tried to participate in the 9/11 attacks, that he was left in a life-threatening situation. This led to the first U.S. government acknowledgment of torture at Gitmo. And it raises the difficult issue of what to do with al-Qahtani. Since 2002 and the short-lived use of Camp X-Ray, the U.S. has built a series of more permanent (and more expensive) “camps” to house al-Qaida and Taliban detainees.

The U.S. is well past the chain-link fence origins of Camp X-Ray: “Camps” are now state-of-the art facilities similar to maximum-security prisons in the U.S. Depending on each detainee’s security classification and how “compliant” that person is, current conditions at Gitmo include allowing them access to DVDs, television and a new $744,000 soccer field.

Meanwhile Camp X-Ray, while closed, still exists. Well, kind of. The U.S. government had planned to demolish it but a federal district judge ordered it preserved as potential evidence of cruel, inhumane, degrading treatment or torture of the detainees once housed there. Currently Camp X-Ray is slowly rotting away in the Cuban heat.

Camp X-Ray

Camp X-Ray’s deterioration

While the U.S. has released or transferred more than 600 detainees, some 149 remain. Some are being tried by military commission, some are awaiting military parole-type hearings, and some have been cleared for transfer but can’t leave due to issues between the U.S. and the country where they would go. And then there are those whom the U.S. has no plans to transfer or prosecute. — C.J.

Next Up: Military Commissions and the Road Ahead: The Cost of Justice.  

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Guantanamo: Why the U.S. Has a Naval Base in Cuba

guantanamo

1st Marine Battalion raising the U.S. flag at Guantanamo Bay on June 10, 1898

Guantanamo_Bay_mapSMU Dedman School of Law Prof. Chris Jenks is visiting Naval Station Guantanamo Aug. 11-15. This is the third blog of the series.

Naval Station Guantanamo Bay (“Gitmo,” for short), at the southeastern tip of Cuba, is not only the United States’ oldest overseas military base but it’s also the only one to exist in a country with which the U.S. does not have diplomatic relations.600px-Guantanamo

The story behind the U.S. presence there dates to the 1898 Spanish-American War.

Given U.S.-Cuban relations now, it’s worth remembering our country’s invasion of Cuba at that time was in support of a Cuban insurgent movement rebelling against their colonial occupiers: Spain. Following the war, the U.S. helped establish the new Republic of Cuba. In turn, in 1903 Cuba agreed to lease 45 square miles of area now comprising Gitmo in exchange for $2,000 in gold coins per year. In response the U.S. agreed to use Gitmo as a coaling and naval station, and also allow free passage of vessels engaged in Cuban trade.

Three decades later the agreement was further outlined in the 1934 “Treaty Between the United States of American and Cuba” signed by President Roosevelt and his Cuban counterpart. As part of the revised terms, the payment (rent, actually) was recalculated on what $2,000 in 1903 gold coins would be worth in 1934, or roughly $4,085 — a fixed amount the U.S. has paid ever since.

Given our countries’ mutual dislike of each other, how this treaty manages to exist as-is lies in the treaty itself, specifically Article III, which notes that the treaty is to remain in effect “[u]ntil the two contracting parties agree to the modifications or arrogations.” So in essence the U.S. has a rent-controlled lease with a mutual break-up clause.

Following the Communist revolution and Fidel Castro taking power in 1959, Cuba’s attitude toward the U.S. and its Gitmo lease has changed, to put it mildly. Specifically, the Cuban government has refused to cash its U.S rent checks for more than 55 years. Castro literally has stuffed the un-cashed checks in his desk drawer (though he does acknowledge accidentally cashing one in 1959).

In early 1961, the U.S. terminated diplomatic and consular relations, with President Eisenhower issuing a statement that the termination had “no effect on the status of our Naval Station at Guantanamo. The treaty rights under which we maintain the Naval Station may not be abrogated without the consent of the United States.”

The U.S.-sponsored Bag of Pigs invasion of Cuba that same year and the Cuban Missile Crisis in 1962 didn’t exactly improve relations between our countries. Accordingly, it’s interesting to think that during those two dangerously dramatic events there were several thousand U.S. service members stationed at Gitmo, which Castro called “a knife stuck in the heart of Cuba’s dignity and sovereignty.”

In 1964, in response to the U.S. fining Cubans for fishing too close to Florida, Castro cut off Gitmo’s water supply for three days. (Apparently sponsoring an invasion of Cuba didn’t warrant turning off the water, but Cuban fishermen being fined crossed the line.) Castro then turned the water back on, but claimed the U.S. had been stealing the country’s water. Afterward, Gitmo’s base commander John Bulkeley devised a simple solution to that: He cut off Gitmo’s water supply lines from Cuba. Out of necessity this led to Gitmo becoming self-sufficient, ultimately creating its own systems to collect and convert sea water to fresh water. [Military history aside: Vice Admiral Bulkeley had received the Medal of Honor in World War II and commanded the PT boat that evacuated Gen. Douglas MacArthur from the Philippines.]

Over the years, many military and diplomatic escalations have occurred between the two countries. And while political difficulties continue, the military relationship has stabilized. But this wasn’t always the case.

Early on, the Cuban military began throwing rocks onto the tin roofs of the U.S. Marines’ sleeping barracks, prompting the Marines to build a 40-foot high fence. The Cubans then hung metal objects on the fence to clatter in the wind, prompting the Marines to add barbed wire to the fence. Both sides then erected ever-taller flagpoles, with Cuba technically winning that competition by planting a giant flagpole on a significant ridge.

In addition, the Cubans also enlisted a high-powered spotlight to shine into the windows of the Marines’ barracks. In turn, the Marines erected a giant tent as a light shield. (Or so the Cubans thought.) Thirty days later, when the Cubans turned on the spotlight, the Marines dropped the tent, revealing a giant Marine Corps globe and anchor symbol on a concrete slab. Needless to say, the Cubans turned off their spotlight.

Cuba began availing itself of the media to complain about the U.S. presence at Gitmo. In the mid-1970s the Cuban Ministry of Foreign Affairs published an 86-page booklet, “Guantanamo: Yankee Naval Base of Crimes and Provocations.” Shortly thereafter, during a 1977 Barbara Walters interview with Castro, discussion of the 1934 treaty led the Cuban leader to argue “when one mentions an undetermined length of time in a legal contract, it’s understood that it means 100 years.” Regardless, both Cuba and the U.S. understand that the agreement will continue to exist until both sides agree to modify or repeal it.

More recently the Cuban government has complained to United Nations human rights organizations that the U.S. use of Gitmo as a detention facility is itself a human rights violation. That’s a rather odd complaint coming from Cuba, since while Gitmo is used to hold al-Qaida and Taliban detainees, Cuba first used the place to detain thousands of Cuban “excludables” or refugees. — C.J.

Next Up:
Camp X-Ray: From Cuban Refugees to al-Qaida and Taliban Detainees

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Life at Camp Justice, Guantanamo Bay

Camp_Justice_2SMU Dedman School of Law Prof. Chris Jenks is visiting Naval Station Guantanamo Aug. 11-15. This is the second blog of the series.

Escorts for the Office of Military Commission separate the various entities — prosecution, defense, victims’ families, media, non-governmental organizations (NGOs) —to take them to different sections of the base. For some of us that means Camp Justice.

Camp Justice, and indeed all of Naval Station Guantanamo Bay, can seem a bit surreal at times.

The camp was set up as a temporary facility, with a series of hardstand tents and living trailers set atop asphalt, but it’s existed more than 10 years now.

What one thinks of the setup is a matter of perspective. When compared to a civilian home or hotel room, it’s not great. But when compared to regions of military deployment like Iraq or Afghanistan, it seems fine.

Tents newestOur escorts tell us members of the media are also at Camp Justice but staying in a different section. They also tell us that if NGO reps want to interact with the media or vice versa, they can do so only via request from the escorts, which I find odd.

Stranger still is when our escorts tell us to avoid the U.S. military members on the base — if we “don’t bother them, they won’t bother you.” What a missed opportunity for the NGOs to learn about the U.S. military while in a deployed setting.

For the groups staying at Camp Justice, there’s a tent for males and a tent for females, each with seven beds, some lighting, a few power outlets and a small refrigerator. And while there are some plywood partitions, it’s definitely communal living.

About 100 yards away are segregated laundry, bathroom and shower trailers which weren’t as well equipped as the ones I used while deployed in Bosnia and Iraq in 1994 and 2004, respectively.

Sinks and showers, for example, have only one knob — on and off. So when you turn on the water it’s initially freezing but then starts to warm up — before becoming scalding. I think the conditions are more austere at Gitmo than elsewhere because no one envisioned the need for these “temporary” facilities to last so long, especially given everything at Gitmo being difficult to acquire (water and power, for instance) due to the strained relationship between the U.S. and Cuba.

Behold the “banana rat”

The oddest thing about the tents and trailers is they’re kept FREEZING cold. Not quite meat-locker cold, but close. The reason? To discourage nocturnal visitors, namely the “banana rat.” Technically they’re rodents, not rats, but it’s more important to know that Guantanamo has an overabundance of them.

After the first teeth-chatteringly cold night (during which we expect furry visitors) many of my fellow NGO reps ask our escorts to take them to the Navy Exchange so they can buy sleeping bags. (Shout-out to the National Institute of Military Justice for leaving me a sleeping bag in advance.) At least one NGO rep spent the week sleeping in a winter coat, even with a sleeping bag. Not exactly what you expect when visiting the Caribbean in August.

The advantage of tent living at Camp Justice is that they’re right by the Military Commissions Courtroom. The disadvantage is that they’re near nothing else, most notably, food. As a result our escorts drive us around the base to find something to eat. Meals are generally at the Navy dining facility a couple of miles away. And at each meal the NGO members are confronted with the military’s dress code.

Some in the military believe that after 10 years of combat operations, basic appearance standards have slipped. That backlash has led to “attire guidelines” and positioning of a service member (henceforth known as “the fashion police”) at each dining facility to ensure compliance. All of this is baffling to the NGO reps.

During one visit to the dining facility the fashion police initially denied a female NGO rep entrance because she was wearing pants without pockets (which is prohibited because … ?). Another trip the fashion police denied entry to a male NGO rep because he was wearing a plain white V-neck shirt. But once we manage to run the fashion gauntlet, we appreciate that the food in the dining facility is good and cheap.

cactusDuring our drives around Gitmo I’m surprised by how brown and desert-like the area is, complete with cactus.

Finally, in terms of things I didn’t expect at Naval Station Guantanamo Bay, Cuba, the military by necessity is utilizing a host of green energy sources.

There are four large wind turbines, which provide a quarter of the base’s electricity.

wind turbines

vehiclePlus, many of the street lamps at Gitmo are solar powered. But my favorite example of sustainability there is the use of not just electric cars, but electric cars with a solar panel mounted to the roof. — C.J.

 

Next up: How and why the U.S. has a navy base in Cuba.

 

 

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Jenks’ tweets from #Gitmo

Watching military commissions @Gitmo is akin to watching a slow-moving train wreck. And the wreck has an endless number of cars.

As @SMU Prof. Chris Jenks (@ChrisJenks_SMU) finishes his upcoming blog reports for @SMULawSchool about military proceedings at Guantanamo, check out some of his recent tweets.

chris jenks (ChrisJenks_SMU) on Twitter

 

 

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Down the Rabbit Hole: Notes From Camp Justice, Guantanamo Bay

Camp_Justice

SMU Dedman School of Law Prof. Chris Jenks is visiting Naval Station Guantanamo Aug. 11-15:

The only way to reach Naval Station Guantanamo Bay Cuba, also known as “Gitmo,” is via a U.S. military flight from Andrews Air Force Base (AFB) in Maryland, just outside Washington D.C. The government operates a flight from Andrews AFB to Gitmo on Saturday mornings and from Gitmo to Andrews Saturday afternoons.

Our passenger terminal group could jokingly be referred to as a “Star Wars bar scene” — an extremely eclectic mix of folks who would not normally interact. There are military and civilian attorneys and paralegals for the prosecution, defense and convening authority. There are family members of those killed on 9/11. And there are representatives from a wide range of non-governmental organizations, many human rights-based, and the media.

Having served in the U.S. Army for 20 years I’m accustomed to how the military operates. So I wasn’t terribly surprised by the requirement to be at the passenger terminal before 6 a.m. — for a flight departing at 10 a.m. Many of the others here aren’t fully embracing their introduction to the time-honored military practice of “hurry up and wait.” (I’m confident they’ll have many opportunities to practice.)

Air Force One, Andrews Air Force Base

Air Force One, Andrews Air Force Base

Despite an unfortunate lack of any food, and more importantly, no coffee, there are worse places to sit around than Andrews AFB. Our view on this day is Air Force One, which was there awaiting the arrival of President Obama.

We eventually do all the normal things done at an airport, just with the military. We receive a boarding pass, go through security, load a bus and drive along the tarmac.

The first-timers to Gitmo, me included, weren’t sure what kind of plane we would be on. Turns out flights to Gitmo are on Sun Country Airlines, a civilian U.S. airline. We’re told to sit anywhere on the plane after the first seven rows, which are reserved for 9/11 victims’ family members. Because there were so many victims (2,976) the family members who want to observe proceedings enter a lottery from which a small number are chosen to visit Gitmo for a week.

Other than flying on an airline no one had ever heard of, the roughly three-hour flight was uneventful. We land in Cuba, “the pearl of the Antilles,” at a small military airfield, Guantanamo Naval Air Station.

Wide Shot Models

Historic plane models and photos at the Guantanamo naval base airport are not to be touched. See sign below.

WarningAs we leave the plane to head to a nearby hanger to be checked on or off yet another list, we’re hit with a wave of tropical heat but fortunately there’s considerable breeze. Inside the hangar are models of planes and historical photographs — along with the first clue that the military may be taking the Uniform Code of Military Justice (UCMJ) a bit too seriously; see the sign at left. (Sadly, my efforts to goad a representative of the ACLU into violating the prohibition to prove its overreach were not successful.)

Flag on Hill

Tall U.S. flags fly around the naval station, where an old cannon represents the base’s Spanish-American War origins.

We load into vans and head to a ferry, which takes us from one side of Guantanamo Bay to the other. As we approach Naval Station Guantanamo Bay we see the first of the exceedingly tall and large U.S. flags that fly around the base. We also see an old cannon, harkening to the base’s origins following the Spanish-American War, which I’ll write more about later.

Once we reach the other side it’s a short drive until we reach our destination, the Expeditionary Legal Complex, where the military commissions take place. — C.J.

Military CommissionsNext up: Life at Camp Justice.

 

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Prof. Chris Jenks at Guantanamo

SMU Dedman School of Law Assistant Professor Chris Jenks, director of the Criminal Justice Clinic, is visiting Naval Station Guantanamo in Cuba Aug. 11-15 on behalf of the National Institute of Military Justice. Prof. Jenks will observe military commission proceedings involving detainees alleged to have planned the 9/11 attacks — and will blog about the experience.

Prior to joining SMU, Prof. Jenks worked at the Pentagon as a Judge Advocate, serving as chief of the U.S. Army’s international law branch. As a military prosecutor he was lead counsel on the Army’s first counter-terrorism case, a fully contested classified court-martial of a National Guard soldier who attempted to aid the al-Qaida terrorist network.

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