Survival: Global Politics and Strategy, vol. 51, no. 1, February–March 2009, pp. 5–12
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President-elect Barack Obama’s announcement that closing the US detention facility at Guantanamo Bay, Cuba, would be among his priorities has raised hopes among Europeans. Reform of the detention system may be perceived as a first step towards the renewal of closer transatlantic ties, in line with the wider expectations of European governments and domestic publics towards the new US administration. Apart from the symbolic value, reform of US detention policy would also have the practical benefit of facilitating transatlantic cooperation in areas where it is most crucial: intelligence-sharing, transnational law enforcement and the conduct of multinational military operations.
European governments will also need to rethink their own approach to detention. Their reaction to US detention policies has encompassed both critical rhetoric and tacit acceptance (and sometimes assistance). These European governments have, however, not done enough to face up to the problem themselves.
Failure, blame and shame
The George W. Bush administration’s spectacular mistakes regarding its detention policy after 11 September arose, according to critics, from a mixture of political and legal incompetence, strategic ignorance and moral laxity. Although European governments disagreed with Washington on many aspects of the status and treatment of detainees in the so-called ‘war on terror’, that the topic developed into such a contentious and sensitive issue largely stifled attempts within and among European states to clarify their own approach to detention.
European engagement with the question of detention started rather late. Bush’s announcement in early 2002 that terrorists and insurgents captured in Afghanistan would enjoy only the most minimal protections, if any, under the Geneva Conventions and customary international law led to widespread criticism in Europe. Yet European states contributing to the International Security Assistance Force (ISAF) in Afghanistan were slow to provide an alternative approach to detention. This changed only after allegations in early 2004 of ill-treatment and abuse of detainees in Guantanamo and in Abu Ghraib prison in Iraq. Europeans were faced with a dilemma: on the one hand, transferring detainees to US forces did not seem a viable option; on the other, running detention facilities under European control did not appear to be feasible, not least due to limited troop numbers and resources. The eventual solution was to hand over responsibility for detention to the Afghan government. With ISAF’s expansion (now under NATO command) to the whole of Afghanistan starting in 2005, NATO established an operational plan according to which detainees had to be transferred to the Afghan authorities within 96 hours of their arrest. Several European states subsequently concluded separate memoranda of understanding with the government of Afghanistan regulating the details of these transfers.
The new policy was explicitly designed to avoid transfers of detainees from European forces to the United States – a stark illustration of the transatlantic gap in counter-terrorism policies that had developed since 11 September. It shifted the problem to the Afghan authorities, who at that time largely lacked the capabilities and infrastructure required to deal with this new task. Continuing reports about ill-treatment and disappearances of detainees in...
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Sibylle Scheipers is Director of Studies, Oxford Leverhulme Programme on the Changing Character of War.
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