Most prisoners held at Guantanamo are desperate to return home. But a small number are so fearful of what awaits them in their country of origin that they would choose indefinite custody at Guantanamo over repatriation.
This group of doubly unfortunate prisoners includes the Uighurs, members of a Muslim minority from western China, as well as a number of Tunisians, Libyans, and Algerians. The men claim that they would face torture or other serious abuse if sent back to their home countries.
Until recently, the Obama administration had not forcibly repatriated anyone from Guantanamo. Rather than carrying out involuntary returns, it had found safe third countries to resettle detainees who feared persecution at home. These included men from China, Egypt, Libya, and Syria, among others.
But some ten days ago, the Obama administration set a worrying precedent. Without holding a fair legal proceeding to assess the detainee’s claimed fear of return, the administration transferred Aziz Abdul Naji back to his home country of Algeria.
Algerians at Guantanamo
Naji had been held at Guantanamo since 2002. His lawyers said that he had told them that he did not want to return to Algeria under any circumstances because he feared persecution from both the Algerian government and Islamist militants. He was not the only Algerian detainee to express fear at being forcibly returned to Algeria; indeed, one has said he would rather spend the rest of his life in US custody than return to Algeria. Of the eight Algerians who remain at Guantanamo, five have reportedly claimed that they fear abuse if returned.
Algerian human-rights groups say that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links.
The US government claims, in contrast, that detainees can be returned to Algeria safely. US officials say that the country’s human rights record has improved significantly over the past decade, even though the US State Department’s annual human-rights report on Algeria acknowledges that allegations of torture are still prevalent.
Diplomatic Assurances
The US has a legal obligation not to send people to countries where they would face torture. According to the Convention against Torture, which the US ratified in 1994, no one can be sent to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture or other ill-treatment. The Committee against Torture, the international expert body that monitors compliance with the Convention against Torture, said in 2006 that the United States “should always ensure that suspects have the possibility to challenge decisions of refoulement [return].”
In court filings in cases involving Algerian detainees, US officials have argued in favor of returns by claiming that the Algerian government has provided so-called “diplomatic assurances” to the United States. But these assurances — which consist of unenforceable promises to treat returned detainees humanely — do not provide an effective safeguard against torture and ill-treatment.
During the Bush presidency, Human Rights Watch documented that detainees who were sent home to Russia and Tunisia suffered abuse despite diplomatic assurances from the receiving countries that they would treat the returned men humanely.
The Need for an Individualized Assessment
Some 26 Algerians were originally held at Guantanamo. Before Naji’s involuntarily return, ten Algerians had voluntarily returned to Algeria. Most of these men were held incommunicado for 12 days after return by the Algerian Department of Intelligence and Security (DRS), as permitted under Algerian law. None of the men reported that they were physically abused while in custody.
The government subsequently charged several of the returned men with being members of a foreign terrorist organization and tried them in criminal court. All were acquitted. (Another detainee, Ahmed Belbacha, who remains at Guantanamo, was tried in absentia in November 2009 and sentenced to 20 years in prison. Under Algerian law, Belbacha has the right to a new trial upon his return to Algeria.)
Although the Algerian detainees who were returned voluntarily to Algeria have not reported serious abuse, this does not provide a firm basis for determining how future returnees will be treated. Some of the men who returned voluntarily were elderly, in ill health, or had wound up at Guantanamo as cases of mistaken identity. Some of the remaining detainees at Guantanamo, though never charged by the United States with any crime, might be perceived by the Algerian government as more dangerous than those who previously returned.
Although Naji sought to assert his claim of feared ill-treatment before a federal court, his petition was denied at the district and appellate level, and the Supreme Court refused to stay his transfer pending further appeal.
The Algerians who currently remain at Guantanamo should be granted access to a fairer procedure. If someone would rather stay at Guantanamo than go home, he should be given the chance to explain why in a proper legal setting.
JOANNE MARINER is a human rights lawyer based in New York and Paris.
