JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that until the United States is prepared to acknowledge that it has a continuing responsibility for some of the Guantanamo detainees once they have been released and shows a willingness to resettle at least some in the US, the future for many will remain deadlocked....
he future of 17 Chinese nationals of Uighur ethnic origin at Guantanamo Bay and the increasing efforts of the US to persuade various countries around the world to agree to accept them for resettlement starkly highlights some of the intractable legal issues US policy towards Guantanamo Bay detainees has created. The Guantanamo Uighurs, ethnically Turkic Muslims who populate the northwest of China, have been detained since early 2002. They had left China for Afghanistan in 2001 fleeing persecution from Chinese officials, only to have their village bombed in mid-October 2001 by allied forces during Operation Enduring Freedom, after which they travelled to Pakistan where they were arrested by local security forces and turned over to the US military. There has never been any credible evidence that the Uighurs actively supported either the Taliban or Al Quaeda, and while the US maintains that in 2001 they attended a militant training camp in Afghanistan, the evidence for this claim appears flimsy. It is therefore not surprising that once the US Combatant Status Review Tribunal began reviewing the basis for ongoing detention of Guantanamo detainees, that the Uighurs were among the first who were cleared for release. However, unlike many of the detainees that were allowed to leave Guantanamo from 2004 onwards the Chinese nationality of the Uighurs has been a significant issue.
The Uighurs have been engaged in ongoing conflict with Chinese authorities over the status of their region and have faced religious persecution and efforts to integrate them into the wider Chinese population. Following demonstrations in February 1997 Amnesty International reported examples of serious human rights abuses against the Uighur peoples including arbitrary detention, unfair trials, torture, and executions. The Chinese government has used the term 'separatism' to refer to the activities of the Uighurs, and has actively sought the return of some Uighurs who live outside of China on suspicion of committing terrorist acts. Further reports that some Uighurs were tortured and executed after their return to China post 9/11 caused the United States to become wary of repatriating the Guantanamo Uighurs back to China and to this day it has refused to accede to any Chinese requests of this kind. This has placed the US in a particular quandary as effectively the Guantanamo Uighurs have been recognised as refugees entitled to asylum protection because they face 'a well-founded fear of persecution' as provided for under the Refugees Convention.
This dilemma for the Obama Administration has become all the more urgent in light of the commitment given to shut Guantanamo down by January 2010. Notwithstanding multiple efforts to secure the transfer of the Uighurs to safe third countries, Albania's 2006 decision to take five of the detainees has been the only offer to date. Whilst Canada rejected a US request in early June, Australia and Germany are still considering their positions. On June 9, Palau, a small north Pacific island country which has a Compact of Free Association with the US, announced that it had agreed to resettle some of the Guantanamo Uighurs. Ultimately some form of deal may be concluded with Palau agreeing to resettle up to ten of the Uighurs, and Australia and Germany taking the remainder.
One of the issues which third countries need to consider when assessing these requests is how China may respond. In early June, the Chinese Embassy in Canberra indicated in a statement that they considered the "Chinese terrorist suspects" held at Guantanamo Bay to be "members of the terrorist group East Turkestan Islamic Movement" and they "should be handed over to China for proper handling according to law". That the US agreed to a Chinese request to cosponsor the inclusion of the East Turkistan Islamic Movement on the State Department list of terrorist organizations in the wake of the September 11 terrorist attacks, has only succeeded in further clouding the status of the Guantanamo Uighurs, though there does not appear to have ever been any direct allegation that the detainees were responsible for any terrorist incident in China prior to 2001. As Palau does not maintain diplomatic relations with China, it may be somewhat immunised from any Chinese backlash if it accedes to the current US request. A possible $US 200 million aid package for Palau is no doubt another factor.
Part of the resistance which the US has met with its resettlement overtures has been due to its apparent reluctance to accept that it too has some level of responsibility towards the Uighurs. Notwithstanding successful District Court rulings that the Uighurs should be released, both the Bush and now the Obama Administration have blocked legal efforts by the Uighurs to be released in the US. Plans were well advanced in May to relocate some of the Uighurs to Virginia, but after a Congressional backlash, those plans were scuttled.
The Uighurs are of course not the only Guantanamo detainees whose resettlement after release is at issue. There are approximately 50 current detainees who are eligible for release under plans developed by the Obama Administration and US allies have been approached to assist in their resettlement. Notwithstanding a 4 June EU information-sharing agreement about Guantanamo detainees, the EU position remains that resettlement assistance will only be provided following formal a EU-US agreement providing levels of assurance as to the human rights of the former detainees, and also financial commitments towards their ongoing needs. Such an agreement will only be possible if the US is prepared to make certain concessions, of which the most important is an acceptance that it has a continuing responsibility for some of the Guantanamo detainees once they have been released and that it shows commitment to those responsibilities including resettling some within the US. It increasingly appears therefore that until the US is prepared to acknowledge that 'Charity begins at home' then the future for many Guantanamo detainees cleared for release will remain deadlocked. Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University, Canberra, Australia.