Snapshot: Guantanamo Bay

The Military Detention Centre at Guantanamo Bay, Cuba, was established more than twenty years ago to hold individuals captured in the US’s so-called War on Terror. The Detention Centre opened in January 2002 under the Bush Administration, with the first twenty individuals captured in Afghanistan and Iraq. Since then, around 780 men have been detained at the facility. As of August 2025, fifteen detainees remain at Guantanamo, some held without concrete evidence against them.  

What are the main legal issues?   

The continuous violations of detainees’ fundamental rights at the detention centre have been well-documented for decades. The main legal challenges include the legal status of the site and the transfer of detainees. 

Legal status  

The legal status is ambiguous. Located outside US territory, the competence to exercise jurisdiction in this area is established on a case-by-case basis. The US Constitution does not apply to aliens outside the US, leaving the detainees with little recourse to challenge the lawfulness of their detention.   

Arbitrary detention

In 2008, Muhammad Rahim al-Afghani was the last person sent to the detention centre. Some of the current detainees have been staying there for at least fifteen years, and several have not been tried by an appropriate court. While all US administrations claim that the detentions were lawful and appropriate under the 2001 Authorisation for Use of Military Force (AUMF), fundamental human rights obligations are not being respected. Detainees’ qualification as ‘enemy combatants’ used as the sole justification for their indefinite detention is not an accepted status under international humanitarian law and cannot justify indefinite detention. However, the status of the detainees has been reviewed by the Periodic Review Board – an administrative interagency body responsible for such reviews – their detention is based on the law of war, although the so-called War on Terror does not meet the criteria of an armed conflict under international law. Therefore, the ongoing, indefinite detention without a fair trial remains unlawful and was defined as arbitrary detention by UN Special Rapporteurs, a practice prohibited under international customary law. 

Right to a fair trial

Many detainees have spent years without being tried within a reasonable time. While their right to habeas corpus – the right to challenge the lawfulness of one’s detention before a court – was recognised by the US Supreme Court in 2008 in Boumediene v. Bush, it was never fully granted in practice. Under the International Covenant on Civil and Political Rights, the US is obliged to respect the right to fair trial and safeguard due process procedural guarantees. However, the indefinite detention of individuals without trial before an independent and impartial tribunal or court of law constitutes a violation of their right to a fair trial, as do reported convictions without sufficient evidence. 

Transfer of prisoners

On 6th January 2025, the US government announced the transfer of eleven Yemeni detainees to Oman. They had long been approved by the Periodic Review Board for transfer, with one receiving clearance as early as 2010. Due to the ongoing instability in Yemen, they were legally barred from returning, necessitating the US to seek other States willing to accept these men. While transferring detainees from Guantanamo, the US must comply with IHRL obligations, including the principle of non-refoulement, which prohibits the transfer of individuals to any country where they would face a real risk of torture, cruel, inhuman, or degrading treatment or punishment. This recent transfer illustrates the complex challenges driven by security and diplomatic considerations associated with the transfer of prisoners.  

Why does this still matter? 

The ongoing operation of Guantanamo demonstrates continuous violations of detainees’ fundamental rights. Since its establishment, indefinite detention without a fair trial has lacked a sufficient legal basis. This situation underscores the need for concerted action by all states, NGOs, and legal advocates to demand the closure of Guantanamo. All states should facilitate the transfer of detainees to ensure former prisoners can rebuild their lives in safety and dignity. This enduring situation perpetuates impunity and risks normalising human rights violations of under the pretext of counter-terrorism. 

This article represents the views of the author(s) solely. ICCT is an independent foundation, and takes no institutional positions on matters of policy unless clearly stated otherwise.

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