Melissa J. Durkee, Beyond the Guantánamo Bind: Pragmatic Multilateralism in Refugee Resettlement, 42 Colum. Hum. Rts. L. Rev. 697 (2011), https://digitalcommons.law.uw.edu/faculty-articles/233
Colubmia Human Rights Law Review
A group of detainees remains in the detention facility at the U.S. naval station in Guantánamo Bay, Cuba (“Guantánamo”) almost a decade after the facility began to hold suspected combatants arrested in connection with the U.S. conflict in Afghanistan. As U.S. officials have acknowledged, in many cases these supposed combatants turned out to have no connection to al Qaeda or terrorism. Many were foreigners who had fled home countries to escape persecution and lived as undocumented aliens in Afghanistan or Pakistan. When the United States began its military campaign in Afghanistan and offered bounties for the arrest of terrorists, the foreigners were swept up and handed over. The United States unwittingly became the custodian of a population of refugees in Guantánamo: detainees who fear return to home states with documented histories of human rights abuses such as Algeria, Libya, Syria, China, Tajikistan, and Uzbekistan.
The unwitting imprisonment of refugee detainees placed the U.S. executive in a bind: It could either repatriate the detainees to home states where they would face persecution or torture—which would be illegal, morally repugnant, and politically consequential—or resettle them in the United States—which Congress has prohibited and which would ignite a political firestorm. Rather than choosing either unfortunate option, the executive has engaged in a difficult, secretive, and politically charged process through which it peddles refugee detainees for resettlement to potential host countries around the world. While the executive has been able to resettle a number of the refugee detainees, several dozen still remain at Guantánamo in early 2011, almost a decade after the detention center opened.
This Article asserts that the U.S. approach to resettlement of Guantánamo’s detainee refugees is fundamentally flawed. By exploiting loopholes to defend detention and exclude the refugee detainees from protection under domestic and international refugee law, the United States sacrifices the moral goods at the heart of those laws. Moreover, the United States undercuts its own political goals by alarming and alienating the foreign states on whose help it depends, making the approach ultimately ineffective at accomplishing U.S. ends.
Setting aside the question of whether the United States could be coerced or incentivized to deal with Guantánamo’s refugee detainees in an ideal manner, this Article proposes a third way between full compliance with domestic and international law and the current U.S. approach. The United States should request assistance from the United Nations High Commissioner for Refugees (“UNHCR”), the organization responsible for supervising and coordinating international refugee protection under conventions to which the United States is a party. The Article further asserts that it is within the UNHCR’s mandate to assume responsibility for resettling the refugee detainees and that UNHCR facilitation would solve many of the legal, moral, and political problems of the current U.S. approach.
Part II of this Article describes the factors at play in Guantánamo’s refugee detainee problem: the identity of the detainees, U.S. resettlement policies, and the challenge of resettlement in practice. Part III critiques the current resettlement process on legal, moral, and political grounds. Part IV proposes a UNHCR-brokered resettlement process, and addresses anticipated critiques of such an approach. Part V situates this proposal in the larger debate regarding state circumvention of refugee convention requirements.