Closing Guantanamo: what responsibility for the EU?

Recently, there have been heard some voices arguing about a certain “collective responsibility” of the US and the European States. The arguments in favour of it, thus including an EU responsibility, besides the US primary responsibility [1], count the fact that the anti-terror war created by the Bush Administration was carried out in cooperation with European states, under the umbrella of NATO. Consequently, even if it was not started by European States, they have certainly tolerated it. The US Government has also asked the European assistance to help them close the prison.

The EU’s help would encompass the receipt of detainees that are not able to return to their home country for “substantial risk of torture” and are “cleared for release” [2], meaning that they would not be prosecuted or executing their sentence in the EU. This would imply that they would enjoy the freedom of movement, unless some restrictions would be imposed on them, as stated by the Council [3]. It should be mentioned that the above cited restrictions would follow the usual rules, like issuing a residence permit that does not confer a right of free movement within the Schengen area or deciding that the residence permit would not allow the holder to travel into the State’s territory on the basis of the permit, in areas where the State considers that the person would be a threat to public policy or national security. Besides these two conditions, the detainees should want to be transferred to Europe.

Since all the EU nationals previously held at Guantanamo have already been received by their countries, “no obligation stemming from the general international law would compel European States to accept the remaining Guantanamo detainees”. Consequently, the EU Member States responsibility would be mainly moral, in the sense that they would not only promote at an international level the respect for human rights, but would also support the US to find a mean to close the prison. And the EU showed its willingness to do this in 2002, when the EU Member States coordinated the reception of third country nationals in the form of Common Position 2002/400/CFSP concerning the temporary reception by Member States of certain Palestinians.

After one year since President Obama took office, there were 240 detainees in the Guantanamo prison. To date, there are 174 detainees remaining, out of which 36 have been recommended by a US government-created taskforce to be prosecuted and 48 to be held indefinitely as enemy combatants. As far as the EU is concerned, 24 detainees were received in approximately 10 European countries, but none by the US, although during all the dialogues that formed the cooperation between the EU and the US, the EU tried to put forward the idea that if the EU was to take some former detainees, the US should do so as well.

Unfortunately, the situation where the US does not receive any detainee cleared for release or in order to be trialed in a federal court is going to be implanted, since the US Congress voted a catch-all spending bill that prohibits the use of any funds coming from the defense budget, to transfer or release individuals detained in Cuba or to build a facility for them, on US soil. In this situation, the Republicans used a strategic move, by attaching these Guantanamo provisions to a spending bill for military pay and benefits, obliging President Obama to sign it, because of the importance of authorizing appropriations for, among other things, the US military activities in 2011.

Besides the funds obstacle, the spending bill also imposes some conditions on the US Secretary of State, conditions that make the transfer of detainees to third countries almost impossible. The most difficult ones to be fulfilled are to ensure that the individual cannot take action to threaten the US and that he cannot engage or reengage in terrorist activity, being known that the recidivism rate was one-in-four.

Even if the above mentioned prohibition expires in September 2011 and even if what the Congress did was an encroachment on the authority of the Executive branch, by determining when and where to prosecute terrorist suspects, the reality is that, in fact, in the US there is no willingness to close a detention center which is not at all in line with the international principles of the respect of human rights and prosecution guarantees. President Obama is still willing to close the detention center and he has made some changes to the detention policies, such as providing access to lawyers to the detainees and the possibility to challenge their detention. But this does not at all mean that the practice of indefinite extralegal detention would come to an end. And this practice is the key factor that impedes the positive progress with this issue. The detainees that make impossible the closure of the detention facility are the ones who cannot be tried due to insufficient evidence or evidence obtained by unlawful means, but that are too dangerous to be released. And in this issue the EU or its Member States have no mean to help or assist.

All the aspects mentioned above, about the US detention policy and the fact that the Congress made it impossible to close the Guantanamo Bay detention facility makes that any EU or its Member States’ responsibility, even moral, disappear. Taking into account that the EU has at least received approximately 24 detainees and the US none and adding the reluctance to receive any Guantanamo detainee for any reason on US soil, we could affirm that the EU and its Member States did a sufficient share.

We could have spoken about a EU responsibility in the case where in the detention center it would have been many detainees cleared for release that would have not found a place to go and the US should have found a host country for them. In this case, the European countries could have helped. But since the main reason for which the facility is not being closed lies somewhere else, in an area where the EU has no competence, basis for interference or power, we can only hope that President Obama will find a way to challenge the Guantanamo provisions adopted in March, this year, and that this stain in the US counter-terrorism policies will be soon cleaned.


Diana Cocoru


[1] Conclusions of the Council and of the representatives of the Governments of the Member States on the closure of the Guantanamo Bay Detention Centre”, JHA, Luxembourg, 4th of June 2009.
[2] Commission/Counter-Terrorism Coordinator, “Joint Commission/Counter-Terrorism Coordinator information paper on the closure of the Guantanamo Bay detention center”, 27th of February 2009
[3] Counter-Terrorism Coordinator, „Additional information related to the Joint Commission/Counter-Terrorism
Coordinator information paper on the closure of the Guantanamo Bay detention Centre”, 5th of March 2009

To go further :
- Guantanamo Review Task force, final report, January 22, 2010.
- Council of the European Union, Counter-Terrorism Coordinator information paper on the closure of the Guantanamo Bay detention Centre” : 27th of February 2009 information paper and 5th of March 2009 information paper



Photos Credits (c) European Parliament / Official White House Photo by Pete Souza, 2009