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Guantanamo Bay: which role can European Union play?

pdf mise en ligne :10 03 2008 ( NEA say… n° 47 )

ASILE > Eurodac

The 28 February 2008 there was a joint public hearing held at the European Parliament by the Civil Liberties Committee and the Human Rights Subcommittee on “Guantanamo Bay”. Debate focused on how detainees' rights had been eroded, the importance to transfer trials to Federal Courts given that military commissions failed, what should be done for those still in custody and in particular whether the EU might play a role in resettling detainees cleared for release but that cannot be returned home because they would likely face torture or other abuse.

Jennifer Daskal, Senior Counterterrorism Counsel at the Organization “Human Rights Watch”, started the debate with a brief history of  Guantánamo, explaining the context and the reason why the US has chosen this place to held some kinds of detainees and then discussing on their legal status. 


The first time that 20 detainees landed on the military base in Guantánamo was in 2002, but over the next several months hundreds of detainees joined them: some of them were associated with the Taliban or Al Qaeda in Afghanistan, others had been picked up in places as Gambia, Thailand and Bosnia. The US held them under the label “enemy combatant” in a place chosen because beyond the reach of any US courts, physically abusing some of them and ignoring basic precepts of international law. The detainees was denied the access to lawyers or family members; most of them had no charge and no opportunity to challenge the basis of their detention in any U.S. Federal Court. 

Moreover it has learned that only a small minority of them were combatants involved in any fighting, most were picked up far from any battlefield, sold for bounties or turned over by Pakistani forces or others. Despite any rules of international law, the US decided that Al Qaeda members and associates were not entitled to any Geneva Convention protections, placing them outside both the laws of war and human rights law. The other detainees, picked up in Gambia, Bosnia, Thailand, were held under the same “enemy combatant” label, based on the administration’s expanding notion of a global “war” on terror. 

In 2004, in response to a legal challenge brought by 14 Guantánamo detainees, the US Supreme Court ruled that detainees should have right to habeas corpus[1] to challenge their detention in US Federal Courts and to be released if the detention is found  to be unlawful.  

In reply the Bush administration assigned to a panel of military officers the task to determine whether the detainees were in fact “enemy combatants” - a system which the administration now claims is an adequate substitute for independent court review, whereas this procedures are hardly independent or fair. The detainees in fact are not provided lawyers, are faced with secret evidence that they are unable to confront, are given only the most cursory summary of the allegations against them and have in all cases been denied requests to bring in outside witnesses to help establish their innocence. Secondly, in December 2005 Congress passed a law prohibiting Guantánamo detainees from bringing any future habeas claims and in 2006 these restrictions was expanded and applied retroactively to already pending cases. 

The Supreme Court declared the military commissions illegal under US and international law, but the Congress passed the “Military Commissions Act”, authorizing them. 

The Commissions formally bar the use of evidence obtained under torture, in practice they allow evidence obtained through cruel and inhumane interrogations, without any opportunity to confront the accuser or to establish the evidence’s unreliability and taint.  

The need for independent Court review is now acute, because the administration has not followed the rules from the beginning, separating out the prisoners of war from the civilians accused of terrorism crimes, failed to provide the basic due process protection to which they are entitled and denied them any opportunity to contest their detention. 

Ms Daskal invoked therefore the help of the European Parliament and the EU Member States to restore  habeas corpus on the principle that civilians cannot be arrested and detained simply on the executive’s say so and to move all the trials to federal court. 


At the moment 275 detainees still remain in Guantánamo. They fall into three categories:

- those who have already been cleared for release or transfer but cannot be returned  home because they would likely face torture or other abuse;
- those the United States wants to try;
- those who the US says are too dangerous to release yet cannot be tried. 

This last category, which counts the 50 to 150 detainees, is the hardest to deal with. US wants to detain them on predictions of future dangerousness, even if they cannot be tried because of the lack of incriminating evidence. The solution should be the release of these detainees through US, European Parliament and Member States’ cooperation. They should work with detainees’ home countries to mitigate the risk of their release, press them to lawfully monitor returned detainees’ activities and to prosecute any of them who commit a criminal act.      


Stephen E. Abraham described to MEPs his experience as a US army intelligence officer and lawyer, notably his work as a member of the Office for the Administrative Review of the Detention of Enemy Combatants.  His scepticism at the removal of detainees' rights had grown, leading him to conclude that the CSRT process "was little more than an effort to ratify the prior exercise of power to detain individuals in the war against terror".  He spoke of the support he had subsequently received from people who showed "an unwillingness to quietly submit to an erosion of fundamental human rights". 


The other area of discussion was what to do with the prisoners whom the Americans would willingly release (around 30) but who fear for their safety in their countries of origin, which are ruled by brutal regimes. According to Emi MacLean of the US Center for Constitutional Rights, "these men are faced with an impossible choice: to be detained indefinitely in the US extrajudicial prison camp at Guantánamo Bay or to be repatriated to countries in which they face certain torture or persecution". The answer, she believed, was for Europe to open its doors to these "few stranded refugees" that have been cleared and have some family link in an European country.
In 2006 Albania – one of the poorest countries in Europe – has been the only country that has accepted six detainees from Guantánamo who could not safely be returned to their home country. In August 2007 the British government also called for the release of five non-nationals currently detained in Guantanamo and stated that it would accept them into the UK.  

At the moment Sweden is considering the asylum application of Adel Al-Hakim, a Chinese Uighur who was detained at Guantánamo until the middle of 2006 when he was brought by the United States to Albania. Mr Hakim has a sister living as a refugee in Sweden – his only family outside of China. 

US never accepted any detainee from Guantánamo even if declared cleared and sent some detainees to Libya despite verifiable fears of torture or even execution if he were forcibly returned there. “European intervention is necessary to ensure that individuals are not transferred to torture!” 


While MEPs did not, overall, question the facts as set out by the guest speakers, Ewa Klamt (EPP-ED, DE) after having reminded that the European Parliament has decided to close Guantánamo, preferred to stress the democratic nature of the US, pointing out that the three leading presidential candidates all believed "Guantánamo should be closed", so things were "moving in the right direction".  Referring to the possible resettlements of detainees in Europe she wondered "why should the EU be obliged to solve problems that the US did not want to resolve itself?"  


Claudio Fava (PES, IT) like the other MEPs was really disappointed for the absence of Mr Bellinger (Legal Adviser of Department of State Washington) and especially deplored Council’absence “who rarely pays attention to European Parliament’s recommendations”. He proposed to Jennifer Daskal to send an European Delegation to visit Guantánamo in order to verify the real conditions of detainees, given that the few information recorded were based on the interviews held by Red Cross, as Emi McLean declared. 

Subcommittee vice-chair Sarah Ludford (ALDE, UK) believed the aim must be for the European Union to "help the US to close Guantánamo Bay" by "putting its money where its mouth is", i.e. by taking in some of the endangered detainees.  Ana Gomes (PES, PT) argued that the "complicity" of some Member States in sending individuals to Guantanamo in the first place was probably inhibiting their readiness to take in refugees now.   


Giusto Catania (GUE/NGL, IT) underlined European State Members’ responsibility. They permitted the transit of many detainees bound for Guantánamo, allowing secret flights on their own territories. Some interrogatories were held by Americans and Europeans police forces both and during the fact-finding mission on CIA it was discovered that European Councils and Member States’ Prime Ministers had discussed with U.S.A about rendition[2] and the managing of secret prisons owned by CIA. on different European countries’ territories (above all East Europe). According to Giusto Catania the Member States had the moral obligation to make these documents public in order to inform the public opinion. 


Marios Matsakis (ALDE, CY) rightly stressed that the two main problems that European Union had to face concerned the protection of European citizens from potential terrorist attacks but at the same time to guarantee fundamental rights to all human beings; “moreover the boundary line between these grave problems is really subtle”. 



Many MEPs, including subcommittee chair Hélène Flautre (Greens/EFA, FR), Claudio Fava (PES, IT), author of the EP's report into alleged illegal CIA flights, Marios Matsakis (ALDE, CY) and Giusto Catania (GUE/NGL, IT), were critical of the Council of Ministers for not attending the hearing.  Mrs Flautre proposed that she and Civil Liberties Committee chair Gérard Deprez (ALDE, BE), co-sign a letter to the Council regretting its absence. Disappointment was also voiced that the Commission's DG JLS (Justice, Freedom and Security), the US state department and the UK foreign office had sent no representatives. 


Guantanamo Bay 



Number of current prisoners: 227

Number of prisoners cleared for release by the US Military but still in prison: at least 80

Number of regular criminal trials or courts-martial held in Guantanamo Bay: 0

Number of prisoners charged before a military commission, a process with allows use of secret evidence and evidence gained from torture: 12

Number of prisoners of Guantanamo currently facing a possible death sentence: 6

Number of prisoners currently held in isolation : Approximately 240

Number of prisoners who have never seen a lawyer: Approximately 130

Number of juveniles imprisoned in Guantanamo, according to US military data: 60

Percent of people in Guantanamo not even accused of (let alone charged with) a hostile act against United States or its allies: 55%

Percent of people in Guantanamo not alleged by United States to be Al Qaeda fighters: 92%

Total number of people held at some time in Guantanamo: 776

Number of people released from Guantanamo: 499

Number of prisoners currently being force fed in Guantanamo: 8, all of whom have been on hunger strike for over one year

Number of prisoners who have died in Guantanamo Bay: 5

Number of family visits to Guantanamo Bay: 1 (David Hicks, Australia)



- European Parliament resolution of 12 December 2007 on the fight against terrorism (FR) (EN)

- Call for the resettlement of  Guantánamo detainees from « high risk countries » into EU countries (EN)

- FIDH: European Parliament passes resolution which calls on European Union to resettle  detainees who fear torture in their countries of origin; UN Special Rapporteur report released on same day also calls for safe resettlement of men at Guantánamo (EN)

- AMNESTY INTERNATIONAL: Guantánamo detentions set for legal showdown  (EN)

- CENTER FOR CONSTITUTIONAL RIGHTS: European countries responding to the refugee crisis at Guantánamo frequently asked questions (EN)

- Reprieve documents (EN)

- Written submission by Jennifer Daskal Senior Counterterrorism Counsel Human Rights Watch (EN)

- Written submission by Lt. Col. Stephen Abraham, US Army Reserves (EN)

- Written Submission by Emi MacLean Center for Constitutional Rights (CCR) US Member League of the International Federation for Human Rights (FIDH) (EN)

- Human Rights Watch: Move New Guantanamo Cases to Federal Courts. (Jawad and Al-Darbi to be Charged by unfair Military Commissions)

- Center for Human Rights and Global Justice: surviving the Darkness, Testimony from the US "Black sites".

[1] Habeas corpus is the mechanism that allows detainees to challenge the lawfulness of their detention in an independent and impartial court. 

[2] Extraordinary rendition and irregular rendition are terms used to describe the apprehension and extrajudicial transfer of a person from one state to another, and the term torture by proxy is used by some critics to describe situations in which the U.S. has purportedly transferred suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture. The US program has raised a series of moral, judicial, and political allegations, prompting several official European Union investigations. A June 2006 report from the Council of Europe estimated 100 people had been kidnapped by the United States Central Intelligence Agency (CIA) on EU territory and rendered to other countries, often after having transited through secret detention centers ("black sites") used by the CIA in cooperation with other governments. According to the European Parliament report of February 2007, the CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of article 3 of the United Nations Convention Against Torture. A large majority of the European Union Parliament endorsed the report's conclusion that many member states tolerated illegal actions of the CIA and criticized several European governments and intelligence agencies for their unwillingness to cooperate with the investigation.  




Francesca SOMMELLA  

Università degli Studi di Napoli "L'Orientale"