The Guantanamo refugees no one wants

The Guantanamo refugees no one wants

* Donald Rothwell
* June 15, 2009

The Chinese Uighurs are caught in a legal tangle not of their making.

THAT the Atlantic island territory of Bermuda has agreed to resettle four of the 17 Chinese nationals of Uighur ethnic origin who had been held at Guantanamo Bay, does little to diminish some of the intractable legal issues US policy towards detainees has created. This dilemma for the Obama Administration has become all the more urgent in light of its commitment to shut Guantanamo by January 2010.

Notwithstanding multiple diplomatic overtures, other than Bermuda, only Albania's 2006 decision to take five and the tiny Pacific archipelago of Palau's recent decision to assist have been the only other offers to date. Australia has now been approached for the third time in just over a year to consider taking up to 10 of the Uighurs.

The Federal Government has yet to respond with Foreign Minister Stephen Smith indicating the request will be assessed on a "case-by-case" basis. Germany, which has a Uighur community in Munich, has also been considering a similar US request.

The Guantanamo Uighurs, ethnically Turkic Muslims who populate the north-west 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. They then 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-Qaeda, 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 began reviewing the basis for ongoing detention of Guantanamo detainees, 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 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 people — 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 sought — on suspicion of committing terrorist acts — the return of some Uighurs who live outside of China.

Further reports that some Uighurs were tortured and executed on their return to China after the 9/11 terrorist attacks caused the US to become wary of repatriating the Guantanamo Uighurs 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 because they fear persecution and are entitled to protection under the Refugees Convention. Any handing over of the Uighurs to China would be a clear violation of international law.

One of the issues that third countries need to consider when assessing these requests is how China may respond. Earlier this month, the Chinese Embassy in Canberra indicated to Radio Australia 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". While Stephen Smith responded by noting that "from my point of view, we put to one side any hypothetical view that a different or a third nation might have", the Chinese position cannot be totally irrelevant for Australia.

Part of the impasse is also due to the failure of the US to accept that it too has some responsibility towards the Uighurs. Notwithstanding successful US 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 those plans were scuttled after a Congressional backlash.

Fifty Guantanamo detainees, including the Uighurs, are now eligible for release under plans developed by the Obama Administration and the US is courting close allies to assist in their resettlement. The EU position is that assistance will only be provided once a formal EU-US agreement is reached, which provides levels of assurance as to the human rights of the former detainees, and also financial commitments towards their ongoing needs.

The US will need to make important concessions for any agreement is to be concluded; the US must accept that it has an ongoing responsibility for some Guantanamo detainees who were wrongfully held and that it is prepared to resettle some, including the Uighurs, in the US.

Australia would be well within its rights to make similar demands.

However, until the US is prepared to acknowledge that "charity begins at home" then the future for the Guantanamo Uighurs will remain deadlocked.

Donald Rothwell is professor of international law at the ANU college of law.