Why Guantánamo Detainees Should Have Access to COVID Vaccines Part I: Law of Armed Conflict and Good Policy

The Department of Defense has recently suspended its plan to administer coronavirus vaccines to detainees at Guantánamo, according to a statement by Pentagon press secretary John Kirby over the weekend. This reversal is concerning in several different respects, not least of which is the extent to which it appears to be bending to feigned outrage by some Republican politicians and commentators (none of whom appear to understand—or care to understand—any of the backstory). As a legal matter, the U.S. obligation to provide the vaccine to those detainees who want it is not a close call. It is required by the law of armed conflict, as we detail in Part I. As a policy matter, the suspension of the vaccination program is highly counterproductive and unethical. As we detail in Part II, the pause puts at risk the lives not only of detainees, but also U.S. servicemembers and civilians working at the military base. It also threatens to further delay the ongoing proceedings before the Guantánamo military commissions, the slow pace of which has been a consistent source of criticism from many of the same politicians and commentators now criticizing the Biden administration for, among other things, trying to speed things up.

At bottom, with only 40 detainees still being held at Guantánamo, the economic and logistical costs of providing the vaccine to any detainee who wants it are minimal (more than 1.1 million doses of the vaccine are being administered in the United States each day). The legally, ethically, and morally appropriate course of action is for the Biden administration to resume its plan to administer the vaccine to any detainee who wants it as soon as is reasonably possible.

I. The Law of Armed Conflict Obligates the U.S. to Vaccinate Detainees

As one of us argued in an earlier Just Security article, States that engage in wartime detention have an obligation to provide their detainees with adequate medical treatment.

Those held at the U.S. base on Guantanamo Bay are held as detainees in a non-international armed conflict (NIAC) between the United States and al Qaeda and its associated forces.   Such detainees are entitled to some of the protection provided in the 1949 Geneva Conventions—the Conventions created after World War II to establish the basic ground rules for armed conflict. Specifically, detainees in a NIAC are entitled to the protections established in Geneva Conventions’ Common Article 3 (“common” because it appears in all of the four Conventions)—as the U.S. Supreme Court expressly held in 2006 in Hamdan v. Rumsfeld.  Common Article 3 provides a broad and non-derogable guarantee of proper detainee treatment: “Persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” It also specifies that the “wounded and sick shall be collected and cared for.” Moreover, the most recent Commentaries by the International Committee of the Red Cross as to Common Article 3 makes plain, “Caring for the sick may also entail taking preventive measures to ensure the basic health of the population, including vaccinating people against infectious diseases” (emphasis added).

There are additional obligations laid out in Additional Protocol II (APII). Unlike the four main Geneva Conventions, the United States has signed but not ratified APII. However, in 2011 the Obama Administration urged the U.S. Senate to ratify the Protocol (which was first submitted to the Senate in 1987 by President Ronald Reagan) “to reaffirm our … compliance with legal standards,” declaring that “[a]n extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions.”  Professor Eric Jensen, formerly a special counsel to the General Counsel of the Department of Defense, has written that in doing so, “President Obama is declaring APII to be CIL [customary international law] and applying its provisions as binding on the United States, regardless of the Senate’s advice and consent.” In other words, as Jensen and others suggest, the Administration accepted APII as creating legal obligations for the United States. A leading coursebook on the law of armed conflict thus explains, “U.S. practitioners must assume that the content of AP II applies during NIACs, and that in accordance with presidential statements, these provisions apply to any NIAC within the scope of common Article 3.”

What are those obligations? APII elaborates on the protections in Common Article 3.  In particular, Article 5 extends to “[p]ersons whose liberty has been restricted” the right “to the same extent as the local civilian population, [to] be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict” (emphasis added). Hence detainee treatment is tied to the standard enjoyed by the local civilian population, but that treatment may not fall below the basic, fundamental guarantees of humane treatment. Article 5 also provides that, “Their physical or mental health and integrity shall not be endangered by an unjustified act or omission” (emphasis added).  This makes clear that if the civilian population is receiving the vaccine, the detained population must as well, and that an act of omission—such as withholding a vaccine—would violate the legal obligations of the detaining state. That is particularly true at Guantanamo, where many detainees would classify as Tier 1 vaccine candidates based on their age and/or prior medical conditions.

The Department of Defense’s Law of War Manual reflects a view of U.S. obligations that is consistent with APII, noting (at section 8.6), “Detainees shall be afforded, to the same extent as the local civilian population, safeguards as regards health and hygiene and protection against the rigors of the climate and the dangers of the armed conflict.” In addition, it provides that, “The obligation to afford safeguards as regards health and hygiene would include taking sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics.”  This basic understanding of the law of armed conflict is also reflected in the military manuals of U.S. partner forces.  For example, the United Kingdom Manual on the Law of Armed Conflict provides that internees and detainees are entitled to “health and hygiene safeguards … to the same extent as the civilian population.” It provides, as well, that “the detaining power must take all measures necessary to prevent epidemics and to ensure that camps are kept clean, sanitary and healthy.” Similarly, the Netherlands Manual provides, “As regards hygiene, the requisite measures must be taken to ensure a good state of health in the camps and to prevent epidemics.”

II. Policy Arguments for Vaccinating Guantánamo Detainees

Legal obligations aside, offering COVID vaccines to the Guantánamo detainees is also sound policy—in at least three distinct respects: First, as with any detention facility, a failure to vaccinate prisoners puts everyone working at the facility—from guards to clerical workers to custodians—at unnecessary risk. And unlike most stateside prisons, at Guantánamo, many—if not most—of these personnel are uniformed servicemembers. If nothing else, then, offering vaccines to Guantánamo detainees is a way of protecting those tasked with guarding them—a matter on which we all should have common cause. As Dr. Gregg Gonsalves, Assistant Professor in Epidemiology of Microbial Diseases at Yale School of Medicine, told Just Security,

We vaccinate to protect not just ourselves but those around us—in the context of a raging pandemic, we are indeed all in this together. Those incarcerated at Guantánamo need to be vaccinated because we don’t withhold medical care ethically from anyone under our protection and because just vaccinating the staff at the facility leaves an important reservoir of the virus there among the prisoners. Vaccinating everyone is best public health practice.

Second, vaccinating Guantánamo detainees—perceived, rightly or wrongly, as the worst of the worst—sends a powerful message about the new administration’s values, and its commitment to the rule of law even, if not especially, in cases involving terrorism suspects. Medical workers at the U.S. base have already begun vaccinating the 6000 residents on January 8. It would be unconscionable—and illegal—not to extend those vaccinations to the 40 detainees as well. Indeed, to put the numbers in perspective, it amounts to eighty doses of a vaccine, which is 0.007% of the daily total of vaccines administered in the United States.

But even for those who find these policy arguments unavailing, offering vaccines to the Guantánamo detainees may actually help to speed up the military commissions—which, as one of us has documented in detail, are stuck in a series of procedural quagmires that COVID has only exacerbated. Indeed, on Monday, the parties in the newest case before the commissions—involving three defendants charged for their role in 2002 and 2003 bombings in Indonesia—agreed to a 40-day delay in the initial arraignment of the defendants, at least largely to accommodate COVID-related travel and logistical complications. That’s why, per Carol Rosenberg’s reporting, the plan to offer vaccines to the Guantánamo detainees appears to have originated with the Pentagon and military commission prosecutors—who, understandably, are looking for any way to reduce some of the delays that COVID has introduced to the already much-delayed trials of the 9/11 defendants, the alleged mastermind of the USS Cole bombing, and so on.

This last point demonstrates why the outrage expressed by Republican politicians and commentators over the weekend is so hypocritical. It’s not just that offering vaccines to the Guantánamo detainees is the right thing to do legally, morally, and ethically; it’s also being pursued at least in part to accelerate the government’s ability to try and convict a subset of the detainees—some of whom have been in pre-trial proceedings for nearly a decade. Contra suggestions that the Biden administration is thereby “putting terrorists first instead of America first,” it’s actually putting the rule of law first—something that fell far too out of favor over the last four years.

 

Editor’s note: See also Why Guantánamo Detainees Should Have Access to COVID Vaccines Part II: Federal Law and DoD Policies

Photo: John Moore/Getty Image

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).