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Closing Guantanamo: Is Europe Ready?

Sibylle Scheipers

President-elect Barack Obamas announcement that closing the US detention facility at Guantanamo Bay, Cuba, would be among his priorities has raised hopes among Europeans.1 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 administrations 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.2 Although European governments disagreed with Washington on
many aspects of the status and treatment of detainees in the so-called war
Sibylle Scheipers is Director of Studies, Oxford Leverhulme Programme on the Changing Character of War.
Survival | vol. 51 no. 1 | FebruaryMarch 2009 | pp. 512 DOI 10.1080/00396330902749608

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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. Bushs 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;3 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 ISAFs 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.4 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 the Afghan prison system, release for bribes and frequent prison riots and prison breaks suggest that this situation has not changed much over the past few years. European NATO states (and Canada) could not agree on a single joint memorandum of understanding with the Afghan government. It appears that ideas on how to deal with the possibility that

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detainees could be transferred to third states via the Afghan authorities, and with the pitfalls related to the Afghan prison system, were too different.5 At the same time, allegations of the involvement of European states and their officials in US detention practices, first and foremost the so-called extraordinary renditions, became public. These ranged from allegations against Romania and Poland about harbouring secret detention facilities to other states allowing stopovers of rendition planes on their territory.6 While public scrutiny of this involvement is indispensable and should be regarded as proof of a healthy democratic debate, it had the side-effect of branding the issue of detention as predominantly associated with illegality and culpability. This, in turn, seems to have led many European policymakers and officials to shy away from tackling the topic up front. As a result, pragmatic opportunities to enhance the European approach to detention, such as capacity-building in Afghanistan, are often ignored.

From monitoring to capacity-building It is a common and undisputed principle that states have a legal obligation to avoid transferring individuals in their custody to torture.7 In addition, most European states regard their obligations under the European Convention for Human Rights as prohibiting transfers to situations where a detainee could face the death penalty. The memoranda of understanding concluded between European states and the government of Afghanistan include provisions to that effect. Most provide for monitoring mechanisms of transferred detainees in Afghan custody and for International Committee of the Red Cross access to these individuals. In addition, they require notification before a detainee can be transferred to a third state and stipulate that transferred individuals are not to be subjected to the death penalty. These provisions have had mixed results. On the one hand, there have been allegations of torture of individuals transferred to Afghan custody. European officials became alert after the Canadian Afghan detainees scandal broke in early 2007. The initial memorandum of understanding between Canada and the government of Afghanistan had not stipulated access to and monitoring of transferred detainees, and reports about abuse in Afghan custody emerged.8 On the other hand, British forces suspended

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detainee transfers to the Afghan authorities after two previously transferred individuals seemed to have disappeared in the Afghan prison system in 2007. Eventually, the disappearance turned out to be a bureaucratic mistake and the individuals were found.9 That this incident resulted in a temporary suspension of detainee transfers shows that the monitoring system is working properly and that the British forces and officials are taking their legal obligations seriously. Yet, in the wider context of prison reform in Afghanistan, the situation looks much bleaker. Apart from the risk of torture and disappearances, the Afghan prison system is beset by a plethora of problems stemming from insufficient capabilities and resources. For all the criticism of US detention policies, compared to European states Washington has proven more resourceful and determined in tackling the problem of Afghan prison reform. It has rebuilt large parts of Pul-e-Charki prison near Kabul, whereas European funding for such purposes has been desultory. The United Nations Office on Drugs and Crime (UNODC) has rehabilitated one block in Pul-e-Charki prison and a prison in Kabul with Italian funding. The UK has also provided funding for Pul-e-Charki. However, Afghan prison facilities are still notoriously overcrowded and far from meeting minimal standards. Frequent prison riots are the result.10 The security of the prison facilities is poor as well: about half of all prison breaks worldwide in the past three years occurred in Afghanistan, with approximately 1,000 fugitives, half of them alleged to be involved in the insurgency.11 A report about the largest prison break on 13 June 2008 at Sarposa prison near Kandahar concluded that the political sensitivities attached to the issue of detainees had inhibited efforts to improve the facilitys security.12 Corruption and the release of prisoners for bribes is another widespread problem.13 While corruption is endemic in many administrative branches in Afghanistan and will likely persist for many years, the large-scale failure to provide training for the Afghan National Police did nothing to decrease corruption in Afghan prisons. Initially, Germany was the lead nation for police reform, but handed this responsibility to the EU

Afghan prisons are notoriously overcrowded

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in 2007, having made no visible progress.14 Police reform continues to be an area in which the multinational coalition in Afghanistan has not lived up to its promises, as has been reform of the judiciary, initially under Italian leadership. Given that failures in police training and judiciary reform not only lead to poor detention conditions and corruption, but also increase the likelihood of ill-treatment in Afghan custody, it should be obvious that monitoring mechanisms are not sufficient to ensure that European states live up to their legal obligations regarding transfers to torture.15 The more nervous governments have become, however, about allegations of torture in Afghan custody, the less emphasis they have placed on improvements in detention conditions. This means that Europeans are missing an important opportunity for long-term improvement of rule-of-law structures in Afghanistan. Due to its significant security presence, ISAF remains in a position to help the Afghan government, but once ISAF forces pull out, this window of opportunity will close.

Closing Guantanamo European governments have not yet seized the opportunity afforded by the change of administration in Washington to clarify their expectations about detention reforms. Two requirements are particularly relevant: first, the Detainee Treatment Act, which in effect puts detainees held by the Department of Defence under Common Article 3 of the Geneva Conventions, should be extended to cover the CIA. Second, standards for security detention, both in theatres of military operations and on US territory, will need to be clarified. While security detention is legally permissible and has been practised by NATO forces in Kosovo, it should be conducted within a legal framework providing for adequate appeal and review procedures.16
The difficulties the Obama administration faces with respect to closing the detention facility at Guantanamo may provide an opportunity for Europeans to communicate these requirements while building a new foundation for transatlantic cooperation in the area of detention. Despite the fact that most European governments welcome plans to close Guantanamo,

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they have been remarkably silent with respect to the question of the fate of the individuals detained there. While some will face prosecution in the United States, most will have to be released or transferred, with the familiar problems of avoiding transfers to torture and, at least from the current US view, obtaining certain security assurances. So far only Albania and Sweden have accepted former Guantanamo detainees who are not their nationals. Portugals recent offer to resettle a number of Guantanamo detainees and its call on other European states to follow this example may be a model for others, but how other European governments will react remains to be seen.17 Past experience indicates that their security concerns frequently outweigh their humanitarian motives. For instance, the German government refused to readmit former Guantanamo inmate Murat Kurnaz, a German resident with Turkish citizenship, onto German territory for several years before he was finally allowed to return in 2006. This reflects the stigma attached to Guantanamo inmates even if allegations against them fail to be substantiated after lengthy periods of detention.18 By following the Portuguese example, European countries would increase the chances that Washington would at least listen to their requirements for future cooperation. However, if they insist Guantanamo is a problem that the United States should solve on its own, they miss the opportunity to explore the potential for future cooperation in an area that affects many aspects of counter-terrorism.

Acknowledgements
The author would like to thank Ashley Deeks for her helpful comments on earlier drafts of this article.

Notes
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See, for instance, a letter from Portuguese Foreign Minister Luis Amado on the occasion of the 60th anniversary of the Universal Declaration of Human Rights, 10 December 2008, http://www.mne.gov. pt/mne/pt/noticias/200812101640.htm.

See, among others, Philippe Sands, Torture Team: Deception, Cruelty and the Compromise of Law (London: Allen Lane, 2008); Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008).

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It is unclear to what extent European forces in Afghanistan handed over detainees to the United States before 200405. Given that US forces were the only ones that had (and have) in-theatre detention facilities, at Bagram airbase and in Kandahar, it seems likely that transfers occurred. Such transfers were probably few, since the ISAF mandate was initially limited to Kabul and European states deployed relatively few troops under the Afghanistan-wide mandate of Operation Enduring Freedom. Amnesty International, Afghanistan Detainees Transferred to Torture: ISAF Complicity?, 13 November 2007, ASA 11/011/2007, available at http://www. unhcr.org/refworld/docid/473969ab2. html. The same applies to Canada. The US has reportedly also concluded a memorandum of understanding with the Afghan government. Interviews with Legal Advisor, German Ministry of Defence, Bonn, March 2007, and with NATO Legal Advisor, Mons, January 2007. Dick Marty, Alleged Secret Detentions and Unlawful Inter-state Transfers involving Council of Europe Member States (Strasbourg: Council of Europe, 2006). For the UK case in particular see the documents compiled by the All Party Parliamentary Group on Extraordinary Rendition, http://www. extraordinaryrendition.org/. Relevant legal sources are the Convention Against Torture and, for European states, the European Convention on Human Rights. Paul Koring, Amnesty Slams Canada over Afghan Detainees, Globe and Mail, 21 February 2007.

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Phone interview with former Foreign and Commonwealth Office adviser in Helmand, December 2008. See for example Kirk Semple, 8 Prisoners Die in Uprising at Afghan Prison, International Herald Tribune, 5 December 2008. Interpol pushes Afghanistan to record terrorist prisoners, Agence FrancePress, 19 September 2008. Nils N. French, The Sarposa Prison Break, Canadian Army Journal, vol. 11, no. 2, Summer 2008, pp. 815. Sami Yousafzai and Ron Moreau, Afghan Prison Blues, Newsweek, 11 February 2008. According to German General HansChristoph Ammon, head of the German Special Forces, this failure was due to insufficient funding and an inappropriate training approach. Judy Dempsey, German General Breaks Silence on Afghanistan, International Herald Tribune, 30 November 2008. Poor police training is widely believed to increase the likelihood of torture and ill-treatment. The EU endorses the provision of effective police and judiciary training as one of the core instruments in its efforts to prevent torture in third countries. See Guidelines to EU Policy towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Luxembourg: General Affairs Council, 9 April 2001). The Dutch forces seem to work on this assumption as well, since they are reported to transfer detainees only to those Afghan forces that they themselves have trained.

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16

See Ashley Deeks, Administrative Detention in Armed Conflict, Case Western Reserve Journal of International Law, vol. 40, no. 3, 20082009 (forthcoming). 17 Letter from Portuguese Foreign Minister Luis Amado on the occasion of the 60th anniversary of

the Universal Declaration of Human Rights. 18 See Laurel E. Fletcher and Eric Stover, Guantanamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Former Detainees (Berkeley, CA: Human Rights Center, 2008).