Rights groups suggest that two Guantanamo detainee transfers carried out over the past month appear to have violated international law.
WASHINGTON — Even as President Barack Obama’s renewed efforts to shutter the detention center at Guantanamo Bay, Cuba, are now picking up speed, some close observers of the process are worried that the government is applying inadequate or imbalanced safeguards in deciding how to go about moving detainees cleared for transfer.
In particular, rights groups suggest that two transfers carried out over the past month appear to have violated international law. In early December, the Pentagon announced the repatriation of two Algerian men, Djamel Saiid Ali Ameziane and Belkecem Bensayah, both of whom had formally requested that they not be sent back to Algeria. Ameziane in particular has stated that he feared persecution if he were to be repatriated, either from the government or from militant groups.
Legal advocates say any decision to go ahead with forced repatriations would have broken a widely accepted provision in international human rights law called non-refoulement, a concept that bars the transfer of individuals to any state where they may face persecution, particularly torture.
“This repatriation was done against [Ameziane’s] will, so we’re still very concerned about his future in Algeria and, importantly, about a decision that goes against international human rights norms,” Francisco Quintana Garcia, a lawyer representing Ameziane, told MintPress.
“This is a very serious breach on the part of the United States. The idea of non-refoulement offers specific protections against the possibility of torture, and clearly specifies that you cannot be returned to a country where you have fear of being persecuted or tortured.”
On Dec. 10, two U.N. special rapporteurs likewise warned that they were “deeply concerned” that the life of Ameziane, in particular, could be in danger. They also brushed aside a Pentagon statement that U.S. officials had received assurances from Algerian counterparts that the two men would not be harmed. The special rapporteurs noted that “diplomatic assurances are unreliable and ineffective in protecting against torture and ill-treatment.”
Both Ameziane and Bensayah are from religious minority communities in Algeria, and separately fled the country during the early 1990s as a civil war raged. Bensayah settled in Bosnia with his family, where he was eventually arrested on suspicion of trying to blow up U.S. and U.K. embassies. He was sent to Guantanamo after Bosnian officials found him innocent and handed him over to the U.S. Bensayah’s lawyers say his family still lives in Bosnia and will not move to Algeria.
Meanwhile, according to Garcia, over subsequent years Ameziane lived, and tried unsuccessfully to obtain permanent residence, in several Western countries before eventually ending up in Afghanistan and Pakistan amid the NATO-led war. In Pakistan in 2002, Ameziane was reportedly detained and sold by bounty hunters to the U.S. military, though the Pentagon has linked him to al-Qaida.
While he was subsequently sent to Guantanamo as a prisoner of war, Ameziane was never charged with any crime. Neither was Bensayah. And while both were formally cleared for release in 2008, they have since languished in detention as the U.S. has tried to decide how to proceed with cases.
The situation underscores an ongoing quandary for the Obama administration as it ramps up efforts to close the Guantanamo prison. Officials tasked with the closure are now being forced to navigate between U.S. laws that continue to prohibit the transfer of Guantanamo detainees to the U.S., potentially problematic repatriation options, and third countries that have proven reticent to take in former detainees, regardless of their current status.
Today 155 detainees remain in Guantanamo, some 70 of whom have been cleared for transfer by U.S. security and intelligence agencies, many for several years. Yet recent months have seen the transfer of 11 detainees, an uptick that is being widely lauded by rights groups.
The process follows on a renewed pledge by Obama in May to close the prison complex. Since then, the administration has appointed two special envoys to oversee the closure and formally begun a regularized process of review of transfer eligibility and status for each detainee.
In mid-December, the president signed an annual defense appropriations bill that significantly freed up the government to transfer Guantanamo detainees to either their home or third countries. Shortly thereafter, the Pentagon announced the transfer of three Uyghur detainees, religious minorities from China that the U.S. had been concerned could face persecution if they were repatriated. Following what was reportedly an extensive process of negotiation beset by Chinese diplomatic pressure, Slovakia agreed to take in the three men.
Ameziane’s legal defense team says the Uyghur deal was important from a humanitarian perspective, but expresses confusion as to why such options were not extended to the Algerians. Indeed, these lawyers and other advocacy groups have suggested that several countries, particularly Luxembourg, had intimated that they would offer refuge to Ameziane, who has also applied for asylum in Canada, where he has family.
“It’s ironic that the U.S. agreed to resettle the Uyghurs based on fear of persecution, but showed no similar concern for the two Algerians,” J. Wells Dixon, a senior staff attorney with the Center for Constitutional Rights and a lead lawyer for Ameziane, told MintPress.
U.S. officials counter that the Algerian transfers abided by both domestic laws and international obligations and only followed an intensive evaluation process. They also emphasize that, contrary to reports, no other viable resettlement options were available.
“We conduct a thorough, case-by-case review of each potential transfer and consider all available credible information in our determination as to whether a potential transfer can be implemented consistent with our humane treatment policy. The process undertaken for these two transfers was no different,” Ian Moss, a spokesman for the State Department’s office of the special envoy for the closure of Guantanamo, told MintPress.
“While detainees may have a range of reasons for not wishing to return to their countries of origin – including a desire to avoid prosecution – it is our practice to repatriate detainees when this can be done consistent with our security and humane treatment standards. These practices are designed to guard against the transfer of individuals to other nations to face torture.”
Moss also notes that 16 other Guantanamo detainees have been transferred to Algeria in past years, and that the U.S. has received no indication that any of these individuals have been mistreated, either by the state or others.
Particular focus continues to be placed on Ameziane’s situation in part because he holds a unique status, as the first Guantanamo detainee to have his case accepted by an international human rights body.
In 2008, the Inter-American Commission on Human Rights, a Washington-based pan-regional body representing nearly three-dozen members throughout the Americas, took up Ameziane’s case, in part based on allegations that Ameziane had been water-boarded while in U.S. detention. In August of that year, the IACHR granted two international injunctions (known as precautionary measures) calling on the U.S. to ensure that Ameziane was neither mistreated in U.S. custody nor that he was sent to any country where he may be tortured or otherwise persecuted.
On Dec. 19, the IACHR released a lengthy statement condemning the repatriation “against Djamel Ameziane’s will and in violation of international human rights law” and noting that the U.S. had “disregarded” the IACHR precautionary measures. An IACHR representative told MintPress it has not yet been decided whether the Commission will continue to pursue any aspects of the case.
According to Ameziane’s legal team, now that the transfer has gone forward there is evidence to suggest that concerns over his treatment were founded.
“Ameziane left Guantanamo the way he arrived at Guantanamo – bound, gagged, shackled and tied to the floor of a cargo plane,” Dixon, Ameziane’s lawyer, told MintPress. “When he arrived in Algeria, he was handled pretty roughly by Algerian authorities and was put into secret detention. During this period, he was interrogated, and when he wasn’t being interrogated he was held in horrific prison conditions. He became very sick as a result of those conditions.”
U.S. officials have stated that this initial holding period is standard procedure in Algeria. Yet Dixon says that while Ameziane was released after 12 days, on Dec. 16, he continues to be targeted by Algerian security forces.
“He has now been released but he remains under judicial control, which means he has to report to the authorities periodically,” Dixon said. “But he has no documents, no means of support, and he’s harassed by the police when he goes out. He’s not doing very well, and U.S. authorities bear full responsibility for what happens to him.”
Dixon says Ameziane could now face a lengthy trial, though on what offenses remains unclear.
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