Survival: Global Politics and Strategy, vol. 51, no. 3, June–July 2009, pp. 55–70
Law and Order by Nigel Inkster and Robert Whalley
Fighting al-Qaeda: The Continuing Transatlantic Divide by Matthew C. Waxman
Closing Guantanamo and Investigating the Past: Chances for Renewing Transatlantic Ties? by Sibylle Scheipers
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The reluctance of European countries to assist the US government with the closure of the Guantanamo Bay detention facility by accepting some of the remaining 240 inmates risks being seen in the United States either as an exercise in European Schadenfreude (the Americans created this mess and it now behoves them to fix it); or as another classic example of European readiness to shelter beneath a US security umbrella without themselves being willing to do any of the dirty work needed to ensure their own safety. But the reality is that for all EU states, a decision to accept Guantanamo detainees means confronting a complex array of operational, legal and political issues which collectively will prove hard to resolve.
For European states the problems associated with accepting Guantanamo detainees start with the confused and opaque circumstances in which the inmates came to be there. The absence of any clear operational or evidential criteria for the initial detentions and the complete absence of due process from the moment of arrest make it impossible to determine with confidence whether the detainees are hardcore terrorists, foot soldiers or just people who happened to be in the wrong place at the wrong time. Moreover the presumption, which will be hard to refute, is that any Guantanamo inmate will have been subjected to conditions amounting to cruel, inhuman or degrading treatment within the scope of Article 3 of the European Convention on Human Rights. Every state signatory of the convention is bound by the absolute prohibition of such treatment; no derogation from Article 3 is permitted. Given this background, no detainee could be subjected to trial for alleged terrorist offences committed prior to his Guantanamo incarceration; no European judge would countenance this since it would be regarded as ‘fruit of the poisoned tree’. Nor could such a person realistically be sent back to his country of origin for fear that he would on return be subjected to treatment which would violate Article 3; it is highly unlikely that a European judge would sanction such a course unless the most stringent guarantees were in place. Moreover, if the detainee had, prior to his detention, any vestigial claim to residence in the country receiving him, it would be open to him to take legal action against that state for having failed adequately to protect his rights under the convention. Apart from being intrinsically undesirable, such an action might serve as a rallying point for domestic extremist groups who could be expected to use it as fuel for the single narrative.
There are between 60 and 70 Guantanamo inmates believed to be guilty of terrorist offences and whom the US administration intends to try once an appropriate alternative to military tribunals can be determined. This leaves some 170 inmates who either need to be allowed to enter the United States, be sent back to their countries of origin or resettled in third countries willing to receive them. Within the United States there is much domestic resistance to the...
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Nigel Inkster is Director of Transnational Threats and Political Risk at the IISS. He served in the British Secret Intelligence Service (SIS) from 1975 to 2006, and spent seven years on the Board of SIS, the last two as Assistant Chief and Director for Operations and Intelligence.
Robert Whalley is an IISS Consulting Senior Fellow. Previously he was Director for Counter Terrorism and Intelligence at the Home Office.
Matthew C. Waxman is Associate Professor, Columbia University Law School; Adjunct Senior Fellow, Council on Foreign Relations; and Member, Hoover Institution Task Force on National Security and Law. Previously he served as Principal Deputy Director of Policy Planning at the US State Department (2005–07) and as Deputy Assistant Secretary of Defense for Detainee Affairs (2004–05).
Sibylle Scheipers is Director of Studies, Oxford Leverhulme Programme on the Changing Character of War.
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