A Case Study of the Guantanamo Ex-Detainees Seeking Asylum in Central Asia
In 2014, Kazakhstan received five Guantanamo Bay former detainees as part of a bilateral resettlement agreement with the USA. These detainees, of Yemeni and Tunisian origin, were transferred as asylum-seekers due to a risk of persecution in their countries of origin. Though Kazakhstan is a party to the 1951 Convention Relating to the Status of Refugees since 1998, its policy towards refugees has been rather restrictive and it has never had a national refugee resettlement programme.
Drawing upon the analysis of legal scholarship, policy materials and state practice, this paper explores to what extent this ad hoc asylum privately negotiated between states can be regarded as an efficient durable solution for resettled Guantanamo asylum-seekers in Kazakhstan. It also examines to what extent and under what conditions bilateral resettlement agreements could promote more efficient refugee protection in regions with less developed asylum practices. The paper concludes that bilateral agreements have a strong potential to expand protection space and raise refugee protection standards in states with developing asylum systems and should be used strategically.
1 While regional refugee protection frameworksexist in Europe, Africa, and Americas, a similar framework has so far failed to be set up in Asia, the region that has been continuously hosting the largest refugee population.
2 Moreover, the availability of a regional protection framework does not always result in effective cooperation and more efficient refugee protection: as one of the most recent examples of a failure to cooperate under a regionalframework can be citedthe EU’splan to relocate refugees among EU member-states under the 2015 emergency relocation schemes.
3 The last remaining way to deal with asylum-seekers and refugees isthrough bilateral agreements. Bilateral agreements in managing migration are not new, such as readmission agreements. Yet, in the past five years,a new type of bilateral agreements (including memoranda of understanding) isin the course of development: an agreementfor transfer and permanent settlement of refugees that aims specifically at finding a durable solution for refugees in a third country. The most well-known of such bilateral agreements that are publicly available are the 2011 Agreement between Australia and Malaysia, 2014 MOU between Australia and Cambodia5and the 2016 EU-Turkey deal.
There is also another distinct group of bilateral resettlement agreements: the bilateral agreements of the United States of America (the US) with some 30statesin the world on resettlement of the Guantanamo asylum-seekers.
The impact of these bilateral resettlement agreements on protection of human rights of Guantanamo asylum-seekers and raising protection standardsin resettlement states with less developed asylum practices so far havegained limited scholarly attention.
Thus, this paper exploreswhether bilateral refugee resettlement agreements can promote more efficientrefugee burden-sharingand durable solutions for refugees and raise refugee protection standards in states will less developed asylum practices. On the one hand,it might be easier for states to achieve cooperation on a bilateral than a multilateral level given that less individual states’interests need to be balanced out. On the other hand, such bilateral agreementsshould follow certain principles and safeguards to ensure a meaningful and durable solution for refugees. The discussion willbebuilt around four parts. Part One will discuss why some of the Guantanamo detainees may have refugee claims and will provide an overview of the countries that entered into bilateral resettlement agreementswith the US to host the ex-detainees. Part Twowill provide an analysis of one particular resettlement agreement between the US and Kazakhstan, a country with afairly new asylum system developed under the Refugee Convention regime. This Partwill analyse the compliance of the US-Kazakhstan refugee resettlement agreementwith international refugee law. Part Three will consider the implementation of the bilateral agreementin Kazakhstan. In particular, this Part will consider whether the legal status and treatment of the Guantanamo asylum-seekers is compliant with international refugee law and the national refugee legislation of Kazakhstan. This Part will further provide conclusions whether the US-Kazakhstan bilateral agreement may have resulted in a durable solution for the Guantanamo ex-detainees and could be regardedasan efficient burden-sharingmechanism. Part Five will discuss broader implications of the use of privately negotiated bilateral resettlement agreementsand the safeguards that should be included in such agreementsto ensure a virtually durable solution for a refugee problem. The paper will conclude with a discussion of the bilateral resettlement agreements’ potential to expand refugee protection space in new regions if used in a strategic manner. The legality of bilateral agreementsfrom the perspective of the US law and policy as well as the discussion of the US’s responsibility for creating multiple refugee situations will not be the focus of this paper. Rather the paper will approach the issue of the Guantanamo asylum-seekers fromthe following perspective: the US as an individual country has faced a need to resettle several asylum-seekers to whom it is not able to provide protection in its territoryand approached other states for their assistance and cooperation in refugee burden-sharing.
Guantanamo Detainees: Undesirable in the US and Non-Returnable to Home CountriesThe US detention facility in Guantanamo Bay, Cuba, was established in 2002 after the September 2001 terrorist attacks in the US and the subsequent US-led ‘war on terrorism’ in Afghanistan. The detention centre was meant for detentionand interrogation ofterrorism suspectsand alleged.
It is important to note that the US is a party to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
As of August 2016, 124 Guantanamo detainees have been resettled to 30 states spanning all geographic regions, including 18 states in Europe (Bulgaria, Belgium, Estonia, France, Germany, Hungary, Ireland, Italy, Latvia, Portugal, Slovakia, Spain, Switzerland, Albania, Bosnia and Herzegovina, Georgia, Montenegro, and Serbia), 3 states in Africa (Ghana and Senegal), 3 states in South America(El Salvador and Uruguay), 4 states in the Middle East (Oman, Qatar, Saudi Arabia, and United Arabs of Emirates), 1 statein Asia (Kazakhstan), 2 island-states in the Atlantic Ocean (Bermuda and Cape Verde) and 1 island-state in the Pacific Ocean (Palau).31As can be observed, these countries represent a diverse range of democratic and authoritarian regimes and are at various levels ofsocio-economic development. While most of the states are parties to the Refugee Convention and have quite developed asylum procedures, a few resettlement states are not parties to the Refugee Convention and its Protocol (e.g. Oman, Saudi Arabia, Qatar, and UAE) or may have little experience in effective integration of refugees. Despite the obvious differences, all these states agreed to support the US in its goal to find a safe third country for Guantanamo asylum-seekers.
