Most recent exchanges about accepting or not accepting released Guantanamo Bay internees into Australia are ahistoric. They often merely repeat the same factual, conceptual and legal mistakes and misapprehensions that have often bedevilled public “debate” about Guantanamo in general and the case of David Hicks in particular.
When in doubt go back to the law
Proponents of varying views are either unaware, or ignore, that those interned at Guantanamo Bay are not suspected criminals (nor indeed mostly innocent victims) somehow being wrongly “held without charge for years”.
They are instead captured belligerents being lawfully interned until the relevant war ends under that specialist body of international humanitarian law (IHL) known as the Laws of Armed Conflict (LOAC).
The US Supreme Court has confirmed this several times over recent years. The first round of military commission criminal trials that a small number of internees also faced was struck down by the US Supreme Court based on LOAC being the specialist body of international law applying — and the internee's consequent status and associated protections under Common Article 3 of all four Geneva Conventions.
Opponents of Guantanamo are particularly fond of citing the results of this and subsequent Supreme Court rulings but not to acknowledge their full or partial basis in LOAC.
In a war LOAC internees — whether conventional prisoners-of-war (PW) under the Third Geneva Convention or other types of internee (such as terrorists) who do not qualify for PW status but are still covered under Common Article 3 — can and usually are so interned until the relevant war ends.
They can also be released earlier, either outright (as with Mamdouh Habib) or on LOAC parole. The decision to do so is the responsibility of a tribunal convened by the authorised detaining power under the Third Geneva Convention. In the case of the US, they describe these as Combatant Status Review Tribunals (CSRT).
Then look at the logic of the numbers
Only about 20 (around two per cent) of the 800 or so ever interned at Guantanamo also face separate criminal charges under US or international criminal law for terrorist offences or war crimes.
As with David Hicks, their eventual release from internment under LOAC must wait until their separate criminal trials are over, one way or the other.
The US can and probably will legally re-classify many of these particular internees as solely remand or criminal prisoners, as applicable, and eventually transfer them to US federal prisons.
For most of the remainder, since 2003 CSRTs have regularly reclassified Guantanamo internees and around two-thirds of those ever interned have been released — not least because some should not have been transferred there from detention centres in Afghanistan and Iraq in the first place.
Release is only justified where internees are no longer a belligerent in the war concerned, or no longer a dangerous belligerent and therefore no longer a threat to the international community.
Generally this is because they have renounced their allegiance to the Taliban or a terrorist organisation such as Al Qa’eda.
Around 40 of those released from Guantanamo are known, however, to have illegally renewed their belligerency and have subsequently been killed or recaptured in the Iraq and Afghanistan wars. The actual number is probably greater but still a small minority of those processed and released.
International law remains universal even when it is inconvenient
Guantanamo has always been an interim and often far from ideal solution while international law catches up with new developments in international practice, especially concerning the lawful internment of captured belligerents (such as terrorists) who do not qualify as prisoners-of-war under the Third Geneva Convention.
In the case of terrorists, they fail to qualify because, among other things:
they are not commanded by a responsible authority able to take valid international responsibility for their actions; and
their methods involve serious breaches of IHL such as indiscriminate attacks on non-combatants, the torture and murder of prisoners, the mutilation of bodies and general disregard for the principle of non-combatant immunity.
What many critics of Guantanamo tend to ignore is that there will continue to be both a legal responsibility and a practical need to intern at least some of the belligerents captured in a war, somewhere, until the relevant war ends.
Guantanamo may be soon closed but the legal and practical obligations, and moral dilemmas, involved under IHL do not somehow magically evaporate. Nor should they in a civilised world.
Those released from internment under LOAC usually go home (whether on parole or not).
The problem with around 40 Guantanamo internees is that some countries (China, Saudi Arabia, Yemen, etc) have either refused to take their citizens back (especially the paroled ones), or are not known for their adherence to IHL. Sending released internees back to potential mistreatment or worse in such a country contravenes customary international law (especially the non-refoulement rule).
Resettling them in third countries is obviously an option because for legal, humanitarian and strategic reasons the problem is an international humanitarian one, not solely a US matter as some have oddly maintained.
Processing released internees is little different to processing any asylum seeker, except where a CSRT has recommended their release on parole under LOAC until the relevant war (in most cases the Afghanistan one) ends.
But even then, any breach of their LOAC parole, including renunciation of it, makes them liable for re-internment.
Politically it hard to see such re-internment occurring often, and only in the most serious circumstances. The threat of it, however, would be an important legal constraint on the parolee and a strong contributor to their non-belligerence, broader compliance with IHL and, in our case, Australian law generally. Where and how such re-internment would occur, and perhaps by whom, are also issues, especially if the internment camp at Guantanamo is closed.
Inconsistency and hypocrisy
It is therefore doubly unfortunate and frankly illogical that the most vehement opposition to accepting released Guantanamo internees has come from some longstanding Guantanamo critics.
In many cases this stance has highlighted the hypocrisy, fragility and ideological motivation of their former stances regarding Guantanamo.
First, on both sides of politics — particularly towards the extremes — the ones who have previously claimed the most humanitarian credentials now seem to be the ones adopting the most rejectionist stances.
Second, some have long claimed that those interned at Guantanamo Bay must be released from LOAC internment because they are not involved with Islamist terrorism or, if they were, would not now resume their belligerency if released. Many of the same people are now claiming that it would be far too dangerous for Australia to consider accepting any internees as asylum seekers. This stance is surely inconsistent at best and oxymoronic in most cases.
Third, many unfortunately make no distinction between the different categories of releasable internees and the different security threats involved. Internees released absolutely, for example, would not generally constitute the same risk, or the same legal and practical monitoring and supervision difficulties, as those released on LOAC parole (where control orders would probably be necessary).
Fourth, most continue to ignore LOAC as the specialist body of IHL applying. They offer no moral or practical alternative to the time-tested Geneva Convention principle and practice of interning those belligerents captured in war to prevent them rejoining the fight. They also ignore that not having some civilised method, and somewhere, to intern those captured in war only encourages and immorally sanctions their illegal killing at the point of capture or soon afterwards.
Finally, most US allies in the Afghanistan War, for example, have been happy to hand over captured Taliban personnel and Al Qa'eda terrorists to Afghan imprisonment and US internment respectively. In Australia's cases, we also long maintained a ridiculous legal fiction that the ADF was not capturing anyone in battle but that those we captured were somehow always nabbed by any accompanying US troops — even if only a solitary US individual among many Australians.
Close Guantanamo but what then?
The closing of Guantanamo Bay means many chickens come home to roost.
This is not just a US problem because we have all been fighting the war in Afghanistan.
Moreover International Humanitarian Law, including LOAC, is universal in its applicability to those interned and those doing the capturing and interning.
When Guantanamo is closed, some internees will still need to be interned somewhere because their release would contravene the LOAC and wider IHL responsibilities of the USA as the authorised (and delegated) detaining power, and various US allies as capturing powers, under the Third Geneva Convention.
Too many ignore that Guantanamo has always been an interim solution to a vexed series of IHL problems that will not go away with its closure.
- What to do with belligerents captured in a war who do not qualify to be prisoners-of-war under the Third Geneva Convention but who are covered by Common Article 3 of all four Conventions?
- How should they be interned, what protections do they have and what are the rights and responsibilities of the detaining power?
- How do you lawfully fight a war against those resorting to terrorist methods that deliberately contravene IHL and who regard your adherence to such law is a vulnerability to be ruthlessly exploited rather than respected or reciprocated?
- How can the international community encourage and enforce compliance with IHL (including LOAC) in such circumstances?
The terrorist alternative to treating prisoners in accordance with IHL is to torture, murder and mutilate those captured. This is surely much worse in intent, scale, degree and detrimental humanitarian ramifications than anything perpetrated, however mistakenly or even wrongly, at Guantanamo.
IHL in general, and LOAC in particular, only move forward when those who comply with them (even at some military cost) are rewarded and those who disregard or reject them are punished.
The reverse is happening at present. International attention (and much public debate in Australia) is not concentrating on the transgressors in proportion to the intent, extent or contempt embodied in or by their transgression.