76.
The US government has however accelerated the pace of transfers to third countries with
23 transfers in 2014 and 11 between January and 31 August 2015, and has reportedly
secured commitments from a dozen countries to accept nearly half of the remaining
detainees designated for transfer.
77.
Nevertheless, six years after President Obama’s first commitment to close the detention
facility, 116 detainees remain detained, 106 of them are detained without charge and 54 of
them have been designated for transfer. The United States will continue to be acting in
violation of international standards by holding these detainees in arbitrary detention, unless
significant changes are promptly made to US transfer practices.
78.
The PRB creates a greater opportunity for release by circumventing existing legislative
restrictions. It determines whether the continued detention of detainees is necessary to
“protect against a continuing significant threat” to US national security, and designates
those detainees who can be transferred. While the accelerated pace of PRB reviews in 2015
is welcome, it will not suffice to significantly progress toward the closure of Guantánamo
at this rate. Only two detainees have been released following a favourable review. ODIHR
is worried that the PRB is primarily shifting detainees to another detention classification
and, in some instances, can be used to detain indefinitely and without trial individuals who
are determined to pose a significant threat to national security.
79.
Delays in the ongoing cases before military commissions, with no scheduled starting dates
of trial, further complicate the closure of Guantánamo as the detainees cannot currently be
transferred to the US for detention or trial.
80.
The situation of Yemeni detainees, 38 of whom have been designated for transfer for years,
remains one of the primary challenges to closing Guantánamo. Restrictions on their
repatriation based on their nationality and the political situation in their country may
constitute a violation of the principle of non-discrimination. Despite the lifting in 2013 of
President Obama’s moratorium preventing any transfer to Yemen, no detainees have been
subsequently transferred there. Finding solutions to the repatriation of Yemeni detainees or
their resettlement elsewhere, as a matter of extreme urgency, is key for the US government
to demonstrate its commitment to the closure of the detention facility.
81.
The resettlement of the Yemeni detainees, but also of detainees who may face a risk of
torture or ill-treatment if repatriated, is critical to the closure of Guantánamo. ODIHR
commends the 15 OSCE participating States which have resettled Guantánamo detainees,
while calling on all OSCE participating States to contribute to these efforts.
82.
Human Rights safeguards related to the closure of Guantánamo: non-refoulement.
Under both international human rights and international humanitarian law, the principle of
non-refoulement prohibits expelling, returning or extraditing an individual to another state
where there are substantial grounds for believing that the person would be subjected to
torture or ill-treatment.
22
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