122 | Towards the Closure of Guantanamo
299. On December 5, 2013, Djamel Ameziane and Belkacem Bensayah, Algerian nationals
who also feared persecution in Algeria, were forcibly transferred to their home
country. Ian Moss, a spokesperson for Clifford Sloan, the State Department’s Special
Envoy for Guantanamo’s closure, is cited as defending the government’s decision
saying the detainees’ fears of persecution were unsubstantiated. Mr. Moss was also
quoted as stating that resettlement in another country was not a “viable” option and
that the United States was “satisfied that the Algerian government would continue
to abide by lawful procedures and uphold its obligations under domestic and
international law in managing the return of former Guantánamo detainees.” 365
According to Ameziane's representatives, however, he was awaiting a reply from
the government of Canada to his request to resettle in that country. In 2010
Luxembourg had allegedly offered to receive him, and other countries had extended
offers for Djamel Ameziane to settle in their respective territories. The IACHR
issued a press release expressing concern at this action absent due consideration of
the principle of non-refoulement. 366 Once transferred to Algeria, Mr. Ameziane was
reportedly held in secret detention until December 16, 2013.
300. In the case known as “Kiyemba II,” ten Guantanamo detainees filed habeas corpus
petitions challenging their transfer based on the fear of torture in their home
country. In April 2009, the DC Circuit Court reversed a ruling of the District Court
requiring the government to give a detainee’s counsel 30 days’ advance notice of the
detainee’s transfer from Guantanamo. The court of appeals held that the judiciary
may not review executive branch decisions regarding when or where to transfer
detainees. By holding this notice requirement invalid, the court of appeals held that
a detainee has no right to challenge his transfer based on his fear of torture or
persecution and took away almost all of the authority of District judges to supervise
when and where detainees are moved out of Guantanamo. 367 In March 2010, the
Supreme Court denied certiorari to review the case. Subsequent attempts to
reverse that ruling have been unsuccessful.
301. Forced transfers of Guantanamo detainees who present claims of fear of
persecution or of being subjected to torture or other cruel, inhuman or degrading
treatment or punishment, are a breach of precautionary measure 259/02 and also a
violation of the United Nations Convention Against Torture, ratified by the United
States in 1994. The detention facility at Guantanamo Bay must be immediately
365
366
367
The New York Times, Two Guantanamo Detainees Are Involuntarily Repatriated to Algeria, December 5, 2013.
Available at: http://www.nytimes.com/2013/12/06/us/politics/two-guantanamo-detainees-are-involuntarilyrepatriated-to-algeria.html
IACHR Condemns Forced Transfer of Djamel Ameziane from Guantanamo to Algeria, Press Release No.
103/13, December 19, 2013.
See in this regard, American Constitution Society blog, “Kiyemba II – Cruel and Unusual Punishment
Determined Constitutional,” March 24, 2010. Available at: http://www.acslaw.org/acsblog/node/15653;
SCOTUSblog, New challenge to Kiyemba II by Lyle Denniston, Augut 24, 2010. Available at:
http://www.scotusblog.com/2010/08/new-challenge-to-kiyemba-ii/; and Lawfare, Another Cert Petition to
Get Munaf and Kiyemba II Before the Justices, September 23, 2011. Available at:
http://www.lawfareblog.com/2011/09/another-cert-petition-to-get-munaf-and-kiyemba-ii-before-thejustices/
Organization of American States | OAS
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