The possible surrender of the two British residents to Spain, Al Banna and Deghayes, requested to the UK by the judge of the Audiencia Nacional Baltasar Garzón, has created a situation of incomprehension on the part of some human rights defenders and well-known British intellectuals and artists, who have supported them by paying the high fees demanded by the Westminster court for their release. Once again, the defence of human rights and terrorism intersect and raise questions about the limits of the fight against terrorism.
In early 2003, Jordanian national Jamil Al Banna and Libyan national Omar Deghayes, refugees and British residents, were held in Guantanamo Bay prison in Cuba for their alleged links to Al Qaeda. The Pentagon alleged that Al Banna carried out recruitment and financing activities for Al Qaeda and that Deghayes had strong ties to the terrorist organisation. They posed a high international security risk to the United States.
In August 2007, the appointment of Gordon Brown as Tony Blair's successor, the reorientation of British policy not to intervene on behalf of non-UK nationals, as well as the new US strategy of gradually repatriating Guantánamo inmates to their countries of origin, favoured the intensification of negotiations between the two governments to release five British residents, including al-Banna and Deghayes. They finally returned to the UK on 19 December 2007 after spending more than five years in Guantánamo without being formally charged or facing trial. However, on their arrival in London they were not released, as many had expected, as the Spanish Audiencia Nacional had issued a European arrest warrant for them.
Judge Baltasar Garzón asked the United States to extradite him in 2003 for his alleged links to an Al Qaeda cell in Spain. This request, made by the Spanish government in early 2004, was never answered by the US authorities. Three years later, after the two citizens had been authorised to return to the UK, Judge Garzón requested a rogatory commission to take their statements and on 19 December 2007 issued a European arrest warrant for their arrest and surrender.
They were arrested under the 2000 Anti-Terrorism Act on suspicion of committing, preparing or instigating acts of terrorism. The police spokesman added that "the case will be investigated in accordance with UK law". After appearing in court, they were released with a high level of caution, and heavy monitoring of their movements by security forces was judicially authorised.
On 6 March 2008, the Audiencia Nacional (National High Court) notified the order annulling the provisional detention of Al Banna and Deghayes and cancelling the Euro-order issued. The main reason for the cancellation is the medical reports sent by the British authorities indicating that the physical and psychological deterioration suffered in Guantanamo would not allow them to participate in a criminal trial with full guarantees. These reports, analysed and endorsed by two Spanish forensic experts, state that "the physical sequelae cannot be disputed and that the psychological ones seem perfectly related to the events described; that the post-traumatic stress situations and the depressive syndrome mark a before and after in the life and psyche of those affected. Recovery is uncertain and in many cases impossible.
In legal reasoning no. 5, Judge Baltasar Garzón states that "it has been the stay in conditions of degradation and lack of rights in the secret prisons and in Guantánamo that has produced a serious deterioration in the mental state of the defendants to date, and without prejudice to the fact that the facts were prior to and unrelated to this detention, which makes it impossible, as inhumane, to continue with compliance with the European arrest warrant.
Guantánamo prison in Spanish jurisprudence
This is not the first time that Spain has requested the extradition of Guantánamo prisoners: there are two previous cases, that of Hamed Abderraman Ahmed and that of Lachen Ikassrien, who, after being extradited and tried in Spain, were released.
The Supreme Court ruling of 20 July 2006 puts an end to the trial of Hamed Abderraman Ahmed, known as the "Spanish Taliban", a Ceuta native tried for the crime of collaborating with a terrorist organisation. He was arrested in Afghanistan, handed over to the United States and transferred to Guantánamo where he was imprisoned for two years. Sentenced by the Audiencia Nacional to six years' imprisonment and special disqualification as a member of a terrorist organisation, the Supreme Court decided to release him in an interesting ruling based on the nullity of the evidence and the violation of the right to the presumption of innocence.
Particularly relevant is the court's doctrine of considering Guantánamo a legal "limbo" devoid of any justification. For this court, the evidence carried out in Guantánamo and subsequently taken into account in the oral trial ("police interview" of the Spanish agents of the UCIE and subsequent police statement) lacks evidentiary value as it considers all the actions carried out in Guantánamo to be completely null and void. The court states that "the detention of hundreds of people, including the appellant, without charge, without guarantees, without control and without limits, guarded by the US army, constitutes a situation that is impossible to explain, let alone justify, from the legal and political reality in which it is embedded. It could well be said that Guantánamo is a veritable "limbo" in the Legal Community [...]".
It is also important to note that the presumption of innocence has been violated. According to the court, "neither the motivations that the appellant had for going to Afghanistan, nor the activities that he carried out there, allow the judgement of certainty obtained by the National High Court to be reached, as the conclusions drawn by the court of first instance are not to be found in the source of evidence from which it claims to have analysed them in view of the examination of that statement carried out by this Court of Cassation. The conviction does not by far exceed the standard of a "judgment beyond reasonable doubt" which is required for any conviction, as has been repeatedly stated by the European Court of Human Rights, the Constitutional Court and the Chamber itself".
The case of Lachen Ikassrien is similar, although he is a Moroccan national, who was handed over by the US authorities to the Spanish justice system by virtue of the extradition request of Court no. 5 of the Audiencia Nacional for the crime of membership of a terrorist organisation. Lachen Ikassrien was imprisoned in Guantánamo under another name and a fingerprint comparison made it possible to determine that he was the person for whom there was a warrant for arrest and surrender for membership of an armed gang or terrorist organisation in the "Operation Dátil" case of November 2001.9 He was linked to an Al Qaeda cell in Spain and to having held conversations with its leader, Eddin Barakat Yarkas, alias "Abu Dahdah".
On 18 July 2006, Ikassrien was handed over to the Spanish authorities. Nine days later, the fourth section of the Criminal Division of the National High Court ordered his release at the request of the prosecution, as the prosecution based its accusation on evidence similar to that which was annulled in the judgment acquitting Hamed Abderraman Ahmed.
During the trial, the prosecution maintained the charge of eight years' imprisonment for membership of the Spanish Al Qaeda cell. However, the Audiencia Nacional acquitted him after finding no evidence of his participation in the terrorist organisation and after annulling the tests carried out in Guantánamo, where he was held for more than three years.
The chamber established that no lawful evidence had been used to prove that a criminal offence had been committed. It also annulled the telephone conversations and police investigations carried out in Guantanamo on the grounds that "they do not have sufficient guarantees to be considered proper statements by a detainee, since there is no documentary evidence that the accused was informed of his rights".
The reasons for the European Arrest Warrant and surrender
The object of the request for the surrender of Al Banna and Deghayes was their membership or relationship with the cell led by Eddin Barakat Yarkas, Abu Dahdah, and the attribution of a crime of membership of a terrorist organisation. The Euro-warrant is a confidential document that cannot be accessed in order to know its content, although it must be based on a crime (including membership of a criminal organisation and terrorism) and must contain relevant information on the criminal act.
However, according to some sources, the indictment explained that they formed part of the network of international contacts that the Spanish cell had in various countries, that they provided support and cover for the organisation's cells, that they recruited members to send them to training camps in Afghanistan and that they cooperated in everything necessary for the terrorist organisation's activities. The recent order closing the indictment that released al-Banna and Deghayes insists that al-Banna, alias Abu Anas, was a member of al-Qaeda in Madrid between June 1996 and July 2001.
The Al Qaeda cell led by Abu Dahdah was the first Al Qaeda cell to be tried in Spain by the Audiencia Nacional. It was a complex process due to the number of people involved and the evidentiary diversity, although the indictment issued by Judge Garzón included the history, objectives and structure of Al Qaeda, as well as the evidence that determined the indictment of the members of the cell.
The Audiencia Nacional, in a lengthy sentence, sentenced 18 of the 24 defendants and Abu Dahdah to 27 years in prison (15 for conspiracy to commit a terrorist offence and 12 for membership of a terrorist organisation), for leading the Al Qaeda cell in Spain and for participating in the attacks of 11 September 2001. The court argues that Abu Dahdah "knew of the sinister plans for immediate execution that had been finalised by Said, Ramtzi and Emir Atta, of which he was aware, and assumed them as his own, being promptly informed of the preparations that preceded the attacks on the World Trade Center Towers in New York, and the court continues: "in the preparation of this account we have considered powerful evidence".
However, the Supreme Court did not consider this evidence as strong and reduced the sentence of Barakat, Abu Dahdah, to 12 years in prison in judgment 556/2006, and acquitted three of the other defendants for lack of evidence.
The court states that "the discovery of the telephone number - the only proven element linking Barakat to Said (terrorist of the Hamburg cell) - only allows us to glimpse that both knew each other, although this fact is not sufficiently important in itself to deduce that Barakat knew the plans for the imminent and serious terrorist attacks that Atta and Ramzi were going to commit [...]". Regarding the second piece of evidence, based on telephone conversations, the court points out that "they are not su?cient enough to deduce that the accused knew of the specific plans for the air attacks and participated in some way from Spain in their execution". Therefore, in accordance with the presumption of innocence in Art. 24.2 of the Constitution, the court acquitted him of the conviction of conspiracy in the 9/11 attacks.
Exceptional cases in Guantánamo: refugees, stateless persons and nationals of countries in conflict
Since the US government initiated the policy of transferring Guantánamo prisoners to their countries of origin or to third countries, numerous prisoners have been transferred. Approximately 305 detainees still remain in Guantánamo.
It is difficult to know with certainty either the total number of persons transferred or the nationality of all of them, or even the place of detention. In 2002 there were 434 detainees of 35 different nationalities in Guantánamo. In October 2005 the number increased to 520 detainees, and from 2002 to September 2005 some 264 persons were reportedly transferred to countries such as Pakistan, Russia, Morocco, the UK, France and Saudi Arabia, among others.
There are currently some cases in Guantánamo of people who, although they are not considered "enemy combatants", have not yet been released. These are detainees who, because they have lost their nationality, or because the US government considers that their countries of origin do not meet the appropriate conditions due to human rights violations or other circumstances, have not been able to be transferred to any country.
According to human rights organisations, several ethnic Chinese Uighur detainees are reported to be held in Guantánamo because of the risk that they may be subjected to torture upon return to their country. The US would be violating the principle of non-refoulement if it were to approve their return. The solution to this case, which was already raised in 2004 by Secretary of State Colin Powell, was to find a safe third country that would agree to admit them.
However, most countries believe that, since they disagree with the existence of Guantánamo, they should not be the ones to seek a solution to a problem they did not create, but that the US should be the one to create the right conditions and take responsibility for the return of all illegally detained detainees. In this regard, Secretary of State Condoleezza Rice's legal adviser, Condoleezza Rice, said: "In general, most countries simply don't want to help us".
Only one country, Albania, has agreed to receive five Chinese Uighur nationals. Other identified cases are those of a person who has lost his nationality or of detainees whose transfer has not been accepted by any country. For these cases, human rights organisations are calling for an urgent and lasting solution, which should include the option of obtaining refugee status. To achieve this, the US government should collaborate with the United Nations High Commissioner for Refugees (UNHCR).
The return of Guantánamo detainees is a very complex process. There are people from Afghanistan, Sudan, Tunisia, Uzbekistan and Yemen, among others. Investigations prior to rendition are being delayed in these countries because in some cases they refuse to accept them or because there are no guarantees that human rights will be respected. In some specific cases the US government has returned detainees on the basis of a commitment to the host country not to violate the returnee's rights and not to be persecuted ("diplomatic assurances"), but these conditions have not always been respected.
The case of al-Banna and Deghayes, refugees in the UK, was eventually resolved by a change in British policy to intercede on behalf of its citizens and people with legal ties to the country prior to arrest and subsequent detention in Guantánamo. This favourable solution for all parties and for human rights defenders in no way means that the British government has diminished its measures to ensure national security. It only means that they have assumed their responsibility for people who were lawfully resident in their country before their unlawful detention.
Despite continued international pressure for its closure, the reality is that the Guantánamo prison continues to operate six years after its creation. Numerous reports and articles have explained the effects on the lives of the hundreds of detainees who have been held there, the conditions of detention and the legal conditions of the so-called "enemy combatants".
Interestingly, the report on the situation in Guantánamo by five UN Special Rapporteurs includes solid and documented information on the legal framework and legal conditions of the detainees, the conditions of detention, and the religious freedom and the right to physical and mental health of the detainees.
The report adds conclusions and recommendations highlighting the illegality and continued violation of international human rights law taking place in the prison and recommends its closure as soon as possible.
In relation to the transfer of detainees, the report notes that the US government should avoid extradition or return cases to countries where there is a risk of torture (in violation of Art. 3 of the Convention against Torture and Art. 7 of the International Covenant on Civil and Political Rights), and should ensure that all victims of torture or inhumane treatment are fairly and adequately compensated.
The European Union and the Council of Europe have also reiterated their concern about the situation of Guantánamo detainees and the need for its closure. The Council of Europe adopted Guidelines on Human Rights and the Fight against Terrorism in 2002, which stressed "that it is in crisis situations such as those caused by terrorism that respect for human rights is most necessary and vigilance must be even greater", including in the section on judicial procedures that "a person accused of terrorist activities should benefit from the presumption of innocence".
The presumption of innocence is also mentioned in the European Convention on Human Rights (Article 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
The Spanish sentences of citizens who have passed through this "legal limbo" demonstrate that the Spanish justice system guarantees human rights in the fight against terrorism and that the presumption of innocence is one of the fundamental rights of the constitutional order, a right that has also been repeatedly recognised by the European Court of Human Rights.
If this is accepted, should the trials against Hamed Abderraman Ahmed and Lachen Ikassrien not have taken place for the sole reason that they were detained in Guantánamo, and by the same token, should Al Banna and Deghayes not be handed over to Spain (if the appropriate medical conditions had been met), despite the fact that the Audiencia Nacional presumes, on the basis of evidence, that they are linked to the Al Qaeda cell in Spain?
The fact that they have been held in Guantánamo prison in legally and humanely unjustifiable conditions does not mean that none of those who have been there have committed any crime, and that their illegal detention in the US base has exonerated them from any suspicion or link with terrorist actions. It seems logical that they should one day be compensated for their illegal imprisonment in Guantánamo, but it would also be necessary that if they have been linked to or have committed terrorist acts of any kind (recruitment, financing, instigation, etc.) they should be brought to trial and answerable to the appropriate courts.
However, if they were eventually released from Guantánamo without any charges after years of harsh interrogation, perhaps their links to al-Qaeda were not based on such solid evidence. However, the National Court's order cancelling the Euro-order indicates that "there are rational indications that support the participation of Al Banna, alias Abu Anas and Deghayes in alleged criminal activities", and adds "that the Spanish judge's claim has nothing to do with the imprisonment of the accused in Guantánamo, being rather, and this is why the corresponding extradition was requested at the time, the only possibility of subjecting them to a criminal process and a fair trial". For this reason, if the Audiencia Nacional had finally upheld the surrender order to Spain, the Spanish courts would be able to determine, as they have done before, whether Al Banna and Deghayes have always been innocent, or whether it was the pressure on Guantánamo that would have rendered them innocent.
Source; LuisaBarrenechea, international consultant, FRIDE. www.fride.org