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Caught Between a Rock and a Hard Place: US Must Ensure Safety Upon Release for Guantánamo Prisoners

For many prisoners, release does not equate with freedom and can be the beginning of new misadventure, further persecution and incarceration.

Nine prisoners held at Guantánamo Bay were released in December 2013, out of a total of 11 prisoners released over the past year. All were held without charge or trial and had long been cleared for release. This was not the only good news as the prison camp enters its twelfth year with 155 prisoners remaining; on 26 December, President Obama signed into law the National Defense Authorization Act (NDAA) 2014. Section 1035 of this law makes it easier for the US Secretary of Defense to transfer prisoners to other countries, but not to the US mainland.

For many prisoners, however, including the four who were released in 2013 to Algeria, release does not equate with freedom and can be the beginning of new misadventure, further persecution and incarceration. In spite of assurances by both the Bush and Obama administrations that prisoners would not be repatriated to countries where they face a risk of torture or persecution, and international legal obligations and treaties the US is bound by, in practice, this has not always been the case.

Djamel Ameziane, 46, and Belkecem Bensayah, 51, were repatriated involuntarily to Algeria in early December. Both men had fled the civil war there in the 1990s. Bensayah was arrested in Bosnia, and hoped to return there to his wife and two daughters. Ameziane had unsuccessfully applied for asylum before 2001 which led him to seek refuge in Afghanistan. He had an asylum claim pending in Canada, where he hoped to join members of his family; as an ethnic Berber, he also feared persecution on racial grounds. He had previously been offered resettlement by Luxembourg in 2010, and other countries.

Shortly before their release, Bensayah’s lawyer Robert Kirsch rebuked the then planned repatriation and called it “the most callous, political abuse of these men.” He also told the Wall Street Journal that the repatriation was being hastened “so that the administration can show progress on its troubled campaign to close the offshore prison.” Following his client’s release, Ameziane’s lawyer J Wells Dixon, from the Center for Constitutional Rights (CCR), criticised the US government for not releasing his client to a safe country, stating, “President Obama has given short shrift to Ameziane’s concerns about his fear of persecution and shown callous disregard for his human rights.”

Djamel Ameziane is the only Guantánamo prisoner whose case the Inter-American Commission on Human Rights (IACHR) has intervened in thus far, with a lawsuit pending against the United States government (Ameziane v United States) for its human rights abuses against him, and in which the IACHR had issued precautionary measures to stay any forced repatriation under non-refoulement obligations. The IACHR called the “forced transfer” a “violation of the principle of non-refoulement, which prohibits transfers and deportations of individuals to countries where they may run the risk of being tortured.”

UN special rapporteurs have also voiced concern about Ameziane’s fate in Algeria, drawing “attention to previous cases of forced returns to countries with a proven record of torture.” In 2010, UN special rapporteurs expressed similar concerns when Barack Obama forcibly repatriated other Algerians to their home country, and its reliance on diplomatic assurances by states that torture.

Indeed, Abdul Aziz Naji, who was forcibly released in July 2010, “disappeared” upon return; he was later indicted on terrorism charges and sentenced to three years following a trial his lawyers slammed as unfair. An amputee, he remains in prison and does not receive adequate medical treatment for his ailments. “Disappearance” upon return is a standard procedure for the Algerian authorities, followed by released or “administrative detention”, a form of judicial control: Ameziane and Bensayah were released on 16 December after 11 days. Nabil Hadjarab, 34, and Motai Sayab, 37, who were voluntarily repatriated at the end of August 2013 were released on 7 September under administrative detention.

Algeria is not the only state that prisoners are at risk in if and when returned there. In March 2004, seven of the eight Russian prisoners held at Guantánamo Bay were returned home, following diplomatic assurances by the Russian authorities. They were all arrested upon return and charged, but later released in June 2004 due to a lack of evidence. The harassment continued. Four years later, in March 2007, Human Rights Watch (HRW) published a report The Stamp of Guantánamo, setting out the abuses – beatings, arrest, harassment the men and their families have faced since their return. Possibly the worst case of post-return persecution of any former Guantánamo prisoner is that of Rasul Kudaev, who has been beaten, tortured and detained since 2005 and currently faces a life sentence for alleged involvement in an attack against a Russian military installation. Ruslan Odizhev was shot dead by the military in 2007, who claimed that he was armed, resisted arrest and had “returned to terrorism”. Others have gone into hiding for their safety or sought asylum abroad. Largely from persecuted ethnic minorities, they were already at risk and some had left Russia for this reason. At Guantánamo, they were never charged or tried, and were cleared for release as early as 2002.

The real fear of persecution and risk of torture many prisoners face, as well as those who are stateless, such as the handful of Palestinian prisoners, has seen around 50 prisoners resettled by third states. In spite of this generous offer, sometimes following pressure by the US, release to a third country can also have its drawbacks. Polly Rossdale, from Reprieve’s Life After Guantánamo project states that an issue in some third countries “is that they may not have well-established statutory systems in place for welcoming refugees and ensuring integration. Rather than being seen as a humanitarian issue there is a tendency to continue to see their resettlement as a security question.”

A refugee community tragically caught up in the US’ “war on terror” while fleeing racial and religious persecution in China are the 22 ethnic Uighur prisoners. In 2008, a US federal judge ordered the remaining 17 men (5 had been sent to Albania earlier), not considered combatants or any threat to the US, to be released and allowed to resettle in the US; some US communities had agreed to welcome them. Instead, a dozen of the men who were offered temporary asylum in Bermuda, El Salvador, Switzerland and Palau, remain in a precarious situation and are often isolated linguistically and culturally. Most of the countries they are in are very poor and it has not been easy to rebuild their lives. China, which considers them “terrorists” even though a US judge ruled in 2008 that they had been “unlawfully detained”, continues to harass them in host countries, and puts pressure on states not to accept them as refugees. Some are reported to have, however, been given permanent refuge.

The last three Uighurs were released to Slovakia on 30 December 2013; the Pentagoncalled the release and resettlement, “a significant milestone in our effort to close the detention facility at Guantanamo Bay.” Commenting on the release to Slovakia, and previously on possible resettlement in Costa Rica, Judge Ricardo Urbina who made the 2008 judgment stated, “I’m not sure that this outcome is real compensation for what happened […] Maybe there were better choices than the United States, but I didn’t hear it. I waited to hear it.”

The US and Slovak authorities have not indicated whether this is a permanent resettlement. In early 2010, in a “gesture of solidarity”, Slovakia agreed to resettle three prisoners. Upon release, they were under the impression they would be resettled; instead, they were sent to an asylum detention centre whose conditions they claimed were “worse than Guantánamo”. Six months later, they went on hunger strike to draw attention to their plight and following international awareness, their situation improved. Two men have since returned to their countries following the Arab Spring in 2011, feeling that the security situation would be safe enough for them following regime change: Adel Al Gazzar was promptly arrested and imprisoned upon his return to Egypt in 2011 for a conviction made in absentia in 2002. He has since been released and reunited with his family. Rafiq Al Hami returned to Tunisia and his family. The third man, Polad Sirajov from Azerbaijan, remains in Slovakia.

Closing Guantánamo is not an option, it is imperative. The ramifications of the extralegal regime it has created, particularly for international law, international relations and the impact on the lives of those affected will continue long after it closes. The immediate objective in putting an end to this “misguided experiment” is releasing those whom the US has long been in a position to.

All of the 11 transfers made in recent months were under the restrictions of the NDAA 2013. As stated by the CCR, in 2014, Barack Obama “should focus his attention on the 79* men – half of the remaining population – who have been approved for release for years, the majority of whom are Yemeni, as well as the men who may be cleared by the new Periodic Review Board.” In spite of an announcement in May 2013 to lift a moratorium imposed in 2010 on returns to Yemen, not a single Yemeni prisoner has been released.

Arguments over where to send prisoners and the risk they pose to the US are often moot; the majority have homes and families they would gladly return to. In the latter case, advocates of the “recidivism” argument are clearly oblivious to the terrorism-propagation powers of Barack Obama’s drone warfare programme, and that the vast majority of prisoners have not been convicted. Over the past 12 years, the US has squandered too many opportunities to offer the prisoners a fair trial to assess what risk, if any, they pose.

Although the closure of Guantánamo is long overdue, and the prisoners have largely been held for over 12 years without charge or trial, the US administration must ensure the safety upon release and well-being of prisoners. As stated by Djamel Ameziane’s lawyer, “new legislation is not needed to close Guantanamo. What’s needed is a comprehensive, sensible plan by the Obama administration that ensures respect for the human rights of the detained men. […] The Obama administration must do better than treat detainees as numbers on a spreadsheet, whose lives are occasionally ruined for minimal, short-term political gain.”

Recent actions by the US authorities, and the officials appointed to carry out the task of closing Guantánamo, are indeed welcome, positive moves, but they must not add insult to 12 years of injury to the life, dignity and human rights of those involved. Other states must play their part and step up their efforts to demand the repatriation of their citizens. The State Department and Pentagon envoys chosen by Barack Obama in 2013 to work on the closure of Guantánamo have recently stated that “The U.S. has made real progress in responsibly transferring Guantánamo detainees”; nonetheless, this must not be at the expense of further violations of its international law obligations.

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