FAQs: Resettlement and Refugees at Guantanamo

EUROPEAN COUNTRIES AND THE REFUGEE CRISIS AT GUANTÁNAMO FREQUENTLY ASKED QUESTIONS

NEED FOR HUMANITARIAN PROTECTION

1. How many men detained in Guantánamo cannot safely return to their home countries?

The total number of prisoners known to fear return to their home countries is approximately 50. In addition, another 9 men may have repatriation fears.

2. What countries are Guantánamo’s refugees from?

Those in need of humanitarian protection are from diverse countries with recognized records of abuse of minorities, political prisoners, and other “undesirables.” Detainees who fear return include some from Algeria, China, Jordan, Libya, Palestinean Occupied Territories, Russia, Somalia, Sudan, Syria, Tajikistan, Tunisia and Uzbekistan. In some countries, the dangers of repatriation are individualized such that some nationals can safely return while others cannot. In other countries, all nationals would be at great risk if returned. Many traditional receiving countries of asylees, including the United States, regularly welcome refugeess from these countries because of their human rights records.

3. Why are these men unable to return home?

Like refugees worldwide, some of the prisoners held at Guantánamo left their country of origin long before they were abducted by the United States because they were at risk of persecution in their country of origin, based on, for example, their religious beliefs, political activities or ethnicity. In some cases, the risk on return is increased because of the detainee’s incarceration in Guantánamo and/or his application for asylum. One man’s father, a prominent lawyer, was tortured and killed by government forces and his family was subjected to continuous harassment until they fled their country and were granted asylum in an EU country. The man was abducted and transferred to Guantánamo after fifteen years in his country of asylum. While in Guantánamo, he was threatened by security officials from his home country. Another is a Libyan who had fled Libya over a decade prior to his abduction. He was living with his Afghan wife and daughter when he was abducted and transferred to Guantánamo. Despite substantiated and undisputed fears of torture if forcibly repatriated to Libya, and despite his family in Afghanistan, the U.S. government has twice tried to transfer this man to Libya. For both of these men, and the several dozen others at risk, there is a likelihood that if returned to their home countries, they would be at risk of persecution.

4. Will the U.S. send individuals to countries with a known record of human rights abuse and where detainees have a verifiable fear of return? Has the U.S. done so?

The U.S. has already sent nearly forty men who had been imprisoned at Guantánamo to countries with a known record of torture and human rights abuse. These countries include Libya, Russia, Tunisia and Uzbekistan. While not all of these men had particularized fears of repatriation, the United States has not instituted a process to determine whether an individual does have reason to fear return. There is mounting pressure on the United States to implement a process to determine where individuals fear repatriation and cease transferring individuals to torture in violation of international law.

5. Is there evidence of the persecution of former detainees when they have been sent home from Guantánamo to countries known to abuse human rights?

Yes. For example, the U.S. sent one man to Libya in December 2006. He has reportedly been detained without trial since his return despite a promise by the Libyan government to release him and provide treatment for a medical condition. No one outside of the Libyan government has been able to communicate with him since his return so his conditions and treatment remain unknown. Previously, the U.S. sent a detainee to Uzbekistan, a regime particularly notorious for its persecution of observant Muslims. The U.S. repatriated seven detainees to Russia despite fears of return. Their mistreatment upon return has been documented. And, in June 2007, the U.S. repatriated two Tunisians even though one had previously been convicted in absentia. Since their return, they have been subjected to prolonged solitary confinement, physical abuse and threats against themselves and their families.

6. Do some of these men have ties to particular European countries?

A small number of Guantánamo’s refugees have a prior tie to a European country. For instance, some have applied for or been granted refugee or asylee status by a European country, have resided in a European country for a long time, or have established family ties.

7. Has the U.S. agreed to take any of these men into the United States?

No. The U.S. has allowed men to remain indefinitely detained for years after even the U.S. has acknowledged their eligibility for release, and the U.S. has been willing to repatriate individuals to countries despite verifiable and undisputed fears of torture or persecution upon their return. But the U.S. has consistently been unwilling to accept Guantánamo’s refugees within the U.S., asserting that a collection of laws – together termed the “material support bar” – prevents the U.S. from accepting refugees who have been tarnished by the label “enemy combatant.”2 In many ways, the U.S. is a prisoner of its own unjustifiable virulent rhetoric: because of the creation of Guantánamo and the years of its justification by high-ranking officials, the U.S. has vehemently resisted offering entry of detainees within its territory. However, the U.S. government now recognizes the great need for the humanitarian protection of detainees who must be released, but who cannot be repatriated.

8. What happens to the men at Guantánamo who cannot safely return home?

Because of governmental inaction, men who cannot safely be returned home are currently trapped in Guantánamo even though there is no basis for their continued incarceration, or they are forcibly repatriated despite the risk of torture or persecution upon return. Almost all are in solitary confinement 23 hours a day with no known endpoint to their detention.

ROLE OF EUROPEAN COUNTRIES IN THE REFUGEE CRISIS AT GUANTÁNAMO

9. Why should European countries consider offering humanitarian protection to former Guantánamo detainees who cannot safely return to their home countries?

All the individuals at risk if forcibly returned have been detained for years without charge or trial and, absent the intervention of international actors, face an even bleaker future. As with any other humanitarian disaster, Guantánamo’s man-made refugee crisis requires the diligent and collaborative efforts of the international community. As evidenced by the U.S. government’s own records, most of these men were wrongly detained and present no threat to the United States or any other country.They must not face the impossible choice of continued indefinite detention or forcible repatriation to torture or other persecution.

10. What legal principles govern the decision to offer protection to a refugee from Guantánamo?

The humanitarian protection of Guantánamo’s refugees is consistent with the principle of nonrefoulment, a fundamental principle of international law and the domestic law of most States. Nonrefoulment – or the prohibition against transfer of an individual to torture or persecution – is a binding obligation deriving from several sources of law including the Convention relating to the Status of Refugees (the Refugee Convention); UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or punishment (Convention Against Torture); international human rights law; and the European Convention on Human Rights (ECHR).4 The overriding objective of the legal obligations imposed on contracting States is to offer protection to refugees at risk. The principles embodied in these treaties are empty of meaning unless European countries intervene when they are being violated or threatened.

RESPONDING TO CONCERNS

11. Would accepting refugees from Guantánamo pose a national security risk?

Many in Guantánamo were civilians arrested in the turmoil of the war in Afghanistan and were sold to U.S. forces for a bounty.5 A U.S. Central Intelligence Agency (CIA) report in 2002 even acknowledged that “a substantial number of the detainees appear to be either low-level militants . . . or simply innocents in the wrong place at the wrong time.”6 Upon the release of their nationals, governments have discovered the truth of this CIA acknowledgement that many of the detainees were guilty merely of being “in the wrong place at the wrong time.” The vast majority of the more than 400 detainees who have been repatriated have been released to freedom either immediately or after a short period of

12. What is the significance of being “cleared for release” by US authorities?

The distinction between being “cleared for release” and “not cleared for release” is largely a distinction without a difference. “Cleared for release” refers to the outcome of the annual Administrative Review
Board (ARB) process. Officially, a detainee’s status as “cleared for release” means that the detainee is “no longer a threat.” However, a detainee does not need to be cleared in order to be released. Indeed, it has been far more common for detainees not cleared to be repatriated,7 and many prisoners not technically cleared have been repatriated and subsequently released, thu signifying that there is no evidence that would justify a continued detention.

OFFERING HUMANITARIAN PROTECTION TO GUANTÁNAMO’S REFUGEES

13. What can a European country do in order to respond to the refugee crisis in Guantánamo?

European countries can play a crucial role in resolving the humanitarian crisis at Guantánamo. The most urgent need is for States to offer to accept refugees currently incarcerated and to employ diplomatic pressure to the United States to encourage the release of detainees and the closure of the prison at Guantánamo.

14. What status is appropriate for Guantánamo refugees upon their entry into a third country?

European countries may consider receiving detainees from Guantánamo as refugees or asylees or with some form of temporary entry and an application for refugee status can be facilitated thereafter. Other detainees might qualify for family reunification or another legal status in the country, depending on family ties or prior residence.

15. How and why should a person be assigned to a particular “receiving country”?

Where there are links, such as prior residence or family ties, it would be logical for refugees to be relocated to countries where such links exist. Other considerations for determining the country of relocation would include shared language or culture or the presence of groups of the person’s nationality or ethnicity which can provide support to the former detainee.

16. What prosecutorial and/or judicial measures can or should a receiving country take, if any, upon accepting a refugee from Guantánamo?

European countries can take the measures they typically use in processin a refugee claimant.

17. What are the obligations of a receiving country towards a refugee from Guantánamo?

The Refugee Convention, in addition to affording refugees protection from refoulement, contains provisions regarding non-discrimination (article 3), freedom of religion (article 4), personal status (article 12), access to courts (article 16), employment (article 17), housing (article 21), public education (article 22), social security (article 24), free movement (article 27), travel documents (article 28) and expulsion (article 32).