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European Union willing to help resettle detainees from Guantanamo, wants new legal collaboration

The Council of the European Union

The Council of the European Union

Reuters is reporting:

European Union member states are ready to help resettle detainees freed from the U.S. detention center at Guantanamo Bay in Cuba, the EU said on Monday.

A joint statement by Brussels and Washington said the EU backed the decision by the United States to close the detention center and set out a framework for cooperation under which member states would be able to receive released detainees.

The Joint Statement reads:

Joint Statement of the European Union and its Member States and the
United States of America on the Closure of the Guantanamo Bay
Detention Facility and Future Counterterrorism Cooperation, based
on Shared Values, International Law, and Respect for the Rule of Law
and Human Rights

1. The European Union and the United States share fundamental values of freedom, democracy, and respect for international law, the rule of law and human rights. We, the leaders of the European Union and the United States of America, refer to the longstanding tradition of humanitarian assistance that is shared by the European Union and its Member States and the United States of America, our commitment to security, and our deep and abiding friendship. Efforts to combat terrorism should be conducted in a manner that comports with the rule of law, respects our common values, and complies with our respective obligations under international law, in particular international human rights law, refugee law, and humanitarian law. We consider that efforts to combat terrorism conducted in this manner make us stronger and more secure.

Closure of Guantanamo

2. We note the positive actions taken by the President of the United States of America when he
ordered the closure of the Guantanamo Bay detention facility by January 22, 2010.

3. We welcome the determination of the United States of America to close the facility together with
other steps taken, including the intensive review of its detention, transfer, trial and interrogation
policies in the fight against terrorism and increased transparency about past practices in regard to
these policies, as well as the elimination of secret detention facilities.

4. We reaffirm that the primary responsibility for closing Guantanamo and finding residence for the
former detainees rests with the United States.

5. However, we also recall the request made by the Government of the United States to assist it in finding residence for some of those persons cleared for release from the Guantanamo Bay detention facility, who the United States has determined it will not prosecute, and who for compelling reasons cannot return to their countries of origin, but have expressed the wish to be received by the one or the other EU Member State or Schengen associated country.

6. We take note of the commitment of the United States to develop a new and more sustainable approach to security-related issues and of the thorough review of US policies initiated by President Obama’s Executive Orders of January 22, 2009. Against this background and in the expectation that underlying policy issues will be addressed, the EU and its Member States wish to help the US turn the page. In this context, certain Member States of the European Union have expressed their readiness to assist with the reception of certain former Guantanamo detainees, on a case-by-case basis.

7. Within this context, we express our satisfaction with the following framework for the possible
reception of certain individuals currently held at the Guantanamo Bay detention facility in Member
States of the European Union:

• Decisions on the reception of former detainees and the determination of their legal status
fall within the sole responsibility and competence of a receiving EU Member State or
Schengen associated country.

• As a result of EU rules relating to an area without controls at the internal borders, a
decision of one Member State to accept a former detainee has implications for others and
that, consequently, cooperation among Member States is necessary, whatever the
individual decisions of the Member States on the subject matter might be. These
implications have been addressed by Conclusions of the Council and the representatives
of the Governments of the Member States of June 4, 2009. We note that these
conclusions refer to a mechanism among EU Member States and Schengen partners on
the exchange of information concerning Guantanamo former detainees.

• When considering the reception of a specific former detainee on the territory of a
Member State, the United States of America will share with that Member State all
available (confidential and other) intelligence and information concerning that person
relevant in order to allow it to take an informed decision and conduct a proper security
assessment.

• The US and EU Member States will keep each other informed of any relevant
information which comes to light after the transfer of an ex-detainee.

8. We note that the United States will consider contributing to the costs incurred by EU Member
States in relation to receiving ex-detainees on a case-by-case basis.

9. Other issues related to the reception of ex-detainees will be addressed bilaterally between the US and the Member States concerned.

Future counter-terrorism cooperation, based on shared values, international law, and respect for the rule of law and human rights

10. Based on the new course in US counter-terrorism policy initiated by the executive orders of 22 January 2009, and in the expectation of further changes in US counter-terrorism policy as a result of the ongoing policy reviews, we reaffirm that respect for the rule of law and our respective obligations under international law, including international human rights, refugee, and humanitarian law makes us more secure and strengthens us in the fight against terrorism. With a view therefore to deepening transatlantic cooperation on counter-terrorism and justice and home affairs matters more generally, we will pursue such cooperation on the basis of the following understandings:

• Taking into account that the action against international terrorism raises important legal
questions, we recognize the importance of deepening our dialogue on international legal
principles relevant to combating terrorism. In particular, we will continue working
together in semi-annual meetings involving the Legal Advisers to the Foreign Ministries
of the European Union member states (COJUR), representatives of the General
Secretariat of the Council of the European Union and the European Commission, and the
U.S. Department of State Legal Adviser, with the objective of furthering an improved
mutual understanding of our respective legal frameworks, and developing common
ground from which we can work more effectively in combating terrorism
.

• Depending on the outcomes of the US policy review processes we might explore,
including in the context of our regular dialogue among Legal Advisers, the possibility of
developing a Set of Principles that might serve as a common reference point within the
context of our shared efforts to counter terrorism
.

11. Building on shared values and in a spirit of mutual respect, reciprocity and partnership, the EU
and the US seek to deepen transatlantic cooperation in the area of freedom, security and justice,
including cooperation in the fight against terrorism and also other areas such as judicial cooperation
in criminal matters, tackling cross-border crime, facilitating free and secure travel, and exchanging
data for law enforcement purposes while ensuring high standards of personal data protection. (emphasis added)

Note the cooperation on legal frameworks related to terrorism. This strikes me as a good place to begin efforts to develop new principles that could serve as a basis for a new Geneva Convention. If a consensus could be reached within the EU that could be an excellent beginning for developing an agenda for a new Conference.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.