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European Union; United States: Cooperation in Closing Guantanamo Bay

(June 30, 2009) Since U.S. President Barack Obama announced the closing of the detention facility at Guantanamo Bay in his Executive Order of January 22, 2009, several Member States of the European Union have expressed an interest in taking in detainees. However, EU Member States cannot act alone. Even though decisions involving the reception and the determination of the legal status of former Guantanamo detainees fall within the purview of each EU Member State, such decisions may have consequences beyond the borders of the receiving state in light of the elimination of controls within the Schengen area. (The Schengen area consists of the territory of 22 EU Members and 3 non-EU Members, Norway, Iceland and Switzerland; travelers who legally enter the Schengen area are not subject to border controls within the area.) Consequently, the EU Members jointly concluded that a collective approach to taking in detainees was necessary.The EU has created an “enabling environment” for the reception of detainees that has several components:

  • an information exchange mechanism;
  • a joint statement of the EU, its Member States, and the United States on future counterterrorism cooperation; and
  • contribution to the Detention Policy Task Force.

With regard to the first component, on June 4, 2009, the Council of Justice and Home Affairs adopted a mechanism to share information pertinent to public security and safety between Member States and Schengen–area associated countries and to take appropriate steps, if warranted. The information sharing will take place before and after receiving a former detainee, taking into account relevant EU and national legislation on privacy and personal protection data and fundamental rights and freedoms. All information relevant to a decision on receiving a detainee will be communicated to the respective ambassadors.

The second aspect contains a joint EU-U.S. statement issued on June 15, 2009, on the Closure of Guantanamo and Future Counterterrorism Cooperation. It is a non-binding political statement that asserts the significance of commitment and respect for international law, human rights, and the rule of law in combating terrorism. Both partners emphasize that the United States has the main responsibility for closing the detention center and finding places of residence for former detainees. The financial aspects of transfer and reception of detainees will be handled on a bilateral basis between the U.S. authorities and the individual EU Members. Moreover, both partners expressed their commitment to cooperate closely in the fight against terrorism.

The third component refers to closer cooperation and consultation with the Detention Policy Task Force established by the Obama administration. The EU intends to contribute to the review of U.S. policies of indefinite detention without a trial and to share its opinions on international law principles that are applicable to counter-terrorism measures. (Factsheet, EU Council Secretariat, The European Union Ready to Help US in Closing Guantanamo (June 15, 2009), available at