Dutch Proposal to Try Guantánamo Detainees

By John Barham, International Editor

The Dutch government has approached the United States with an unorthodox proposal to try detainees being held without trial at Guantánamo Bay.

Richard Gerding, counselor for police and judicial affairs at the Dutch Embassy in Washington, D.C., said his government has suggested to the United States that these suspects could be transferred for trial at the International Criminal Court at The Hague. “We don’t know the nature of these people,” he said, "but at least [the court] can say if they are dangerous international terrorists.”

The U.S. military is holding over 300 prisoners at Guantánamo Bay, but fewer than a dozen of them have ever been charged with a crime and none have been convicted. The government says it will bring charges against 70 detainees and try them before military commissions. But that would still leave several hundred prisoners who are not scheduled to stand trial.

U.S. officials say the detainees are enemy combatants, although their lawyers claim they are innocent farmers, traders, or drivers. Most were captured in Africa, Asia, and Europe, far from the battlefields of Afghanistan or Iraq.

Gerding says United States' reaction to the Dutch proposal has been cool. “There’s not been much feedback from the U.S. government. The State Department says that this is something that might work in the long run,” he said. “Perhaps it might work for a new administration looking for a way out of the problem.”

The U.S. Supreme Court ruled last year that military commissions the government had set up to try detainees were unlawful, since Congress had not authorized their creation. Congress then passed the Military Commissions Act, which denies any non-U.S. citizen declared an “enemy combatant” the right to seek judicial review of the basis for their arrest under the doctrine of habeas corpus.

Many detainees say they were tortured or wrongfully arrested, which could make it hard to win a conviction in a conventional court. Human rights campaigners say that only a handful of the Guantánamo prisoners are even high-ranking Al-Qaeda or Taliban members.

The United States has released approximately 445 detainees from Guantánamo since 2002, leaving approximately 330 still being held there. However, the Pentagon said that “at least” 30 former Guantánamo detainees returned to fight after they were released from detention.

The Pentagon said, “Some have subsequently been killed in combat in Afghanistan.” It added, “These former detainees successfully lied to US officials, sometimes for over three years. Many detainees later identified as having returned to fight against the U.S. with terrorists falsely claimed to be farmers, truck drivers, cooks, small scale merchants, or low level combatants.”


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