Editor’s note: This essay is an edited version of a longer thesis. For the complete version, including source material, send an e-mail to info [at] mantlethought.org.
Of the 779 prisoners who have been held at Guantanamo Bay prison since it opened in 2002, 164 remain. In total, 605 have been released or transferred (including one to the U.S. for trial). Some of these prisoners were given plea deals. Nine have died in custody.
Of the 164 who remain, 84 have been cleared for release, and yet they remain in the island penitentiary. These cleared detainees, a majority of whom have never been charged, are being held hostage by politics in Washington, D.C. They remain, battling the legal minefields created around their capture, detention, and interrogations.
The majority of the remaining Guantanamo detainees are Yemeni; the rest are from a broad spectrum of countries with a dominant Muslim population. While some of prisoners await trial, others are deemed too dangerous to face justice in a court of law for a variety of legal reasons, including the fact that some of the evidence against them has been compromised.
How to resolve the Guantanamo situation? Could restorative justice help expedite the closing of the notorious prison? This reconciliation mechanism, discussed below, may very well be a legal pathway to overcoming hitherto insurmountable obstacles.
In successive years, American legislators have made it nearly impossible for the president to move detainees anywhere outside of Guantanamo Bay. A provision in the 2012 National Defense Authorization Act (NDAA), for example, explicitly prohibits the president from using funds to bring Guantanamo detainees to American prisons. In addition, the NDAA stipulates that a home or other country willing to take a released prisoner must be able to secure the detainee from “reentering” terrorist activities. Furthermore, the receiving country should be in compliance with the widely shared treaty obligations under the Refugee and Torture Conventions. These restrictions reveal some of the legal difficulties associated with closing Guantanamo.
And yet, by President Barack Obama’s own admission, keeping Guantanamo open is not a sustainable option. In a major national security speech he gave on May 23, 2013, Obama stated (emphasis added):
During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists wherever we can.
The glaring exception to this time-tested approach is the detention center at Guantanamo Bay. The original premise for opening Guantanamo—that detainees would not be able to challenge their detention—was found unconstitutional five years ago. In the meantime, Guantanamo has become a symbol around the world for an America that flouts the rule of law. Our allies won’t cooperate with us if they think a terrorist will end up at Guantanamo.
In recent developments, the Pentagon reviewed hearings for 69 detainees who have neither been cleared nor charged. On November 19, 2013, the Senate also voted to ease restrictions on repatriating and allowing transfers of detainees to the U.S. for trial, detention, and/or medical treatment. The bill remains stuck in the Senate.
What is Restorative Justice?
Dan Van Ness, an esteemed scholar in the field of restorative justice, provides a continuum of attributes to help analyze and define whether an intervention or model is minimally, moderately, or fully restorative.
Van Ness’s attributes of restorative processes are:
Inclusion (vs. exclusion)Balance of interests (vs. single interest)Voluntary practices (vs. coercive practices)Problem-solving orientation (vs. reprisal)
Van Ness’s attributes of restorative outcomes are:
Encounter (vs. separation)Amends (vs. harm)Reintegration (vs. ostracism)Whole truth (vs. legal truth)
The United Nations’ Basic Principles on the Use of Restorative Justice Programs in Criminal Matters (hereafter “The Principles”) emphasizes that “restorative justice is an evolving response to crime that respects the equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders, and communities.” The Principles note that “restorative justice gives rise to a range of measures that are flexible in their adaptation to established criminal justice systems and that complement those systems, taking into account legal, social, and cultural circumstances.”
The Principles then define “restorative process” as “any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing, and sentencing circles.”
The Principles also set the conditions of use and operation of restorative justice programs. There are several examples, of which one is particularly relevant to the situation at Guantanamo: discussions in restorative processes that are not conducted in public should be confidential, and should not be disclosed subsequently, except with the agreement of the parties or as required by national law.
Further important principles of restorative justice can be found in the Restorative Justice Consortium: Principles of Restorative Processes (2004). Among them is the provision that “Adequate time must be given to participants to decide whether to take part and to consult with others, if they wish.”
Proponents of restorative justice argue that, in the aftermath of an offense, restorative justice is concerned not with punishing offenders, but with repairing harm caused by crime. They emphasize that restorative justice requires that key decisions about how the crime should be responded to must not be taken by state officials and legal professionals alone. Others directly affected by the wrongdoing should take an active part in deciding what should happen in the aftermath of an offense.
Can Restorative Justice Work at Guantanamo?
While some Guantanamo detainees have ties to and responsibilities in terrorist activities against the United States, some of the prisoners are innocent. Sadly, most of the prisoners, if not all, have been denied basic guarantees of the rule of law. Some were tortured. In this context, the restorative justice process might be the best way to bring justice for all involved.
Restorative justice has been used successfully in situations involving terrorism before. South Africa, Northern Ireland, and Cyprus, to name three prominent examples, succeeded in convincing fighting factions that there is life beyond the conflict for the parties involved, as well as for their communities. Militants put down their arms, made sincere efforts to halt atrocities, and set the foundations for a prosperous, future-oriented community.
Arguably, restorative justice is on the rise in the United States, at both state and federal levels. Legislation such as House Bill 13-1254 (The Restorative Justice Pilot Project) in Colorado or the Youth PROMISE Act (Youth Prison Reduction Through Opportunities, Mentoring, Intervention, Support, and Education Act) are cases in point.
Outside the United States, a recent review of the literature on restorative justice in Islamic Penal Law by Mutaz M. Qafisheh of Hebron University of Palestine argues that Islamic law, as one major legal line, can be part of and contribute to international standards of restorative justice.
In view of the fact that the majority of the remaining Guantanamo detainees are Yemeni, a conversation between this author and a representative of the United Nations Development Program (UNDP) Rule of Law Unit in Yemen in April 2013 reveals further insights:
Restorative justice is understood by most Yemeni citizens.Culturally, Yemenis are also familiar with and indeed demand the notion of retributive justice. This is particularly the case because of the tribal system in Yemen, which values retribution as a mean to ensuring security, and because of the Shar’ia rules, which are predominately based on retribution. Parts of Yemeni society are burdened with a legacy of injustice, and both the tribal and Shar’ia rules put the victim or the victim’s family at the heart of the retribution, meaning that accountability is established and then it is for the victim to choose whether to pardon, reconcile, or seek retribution. During this process, mediation efforts are made to convince the victim and/or the family of the victim to reconcile or pardon.In the current political climate, it is often found that those who support the immunity granted to the former president [of Yemen] and his officials stress the pardon and reconciliatory approach in both tribal and the Shar’ia rules. Opponents stress that reconciliation or a pardon can only be decided upon once accountability is determined. It is common belief in Yemeni society that justice/accountability are preconditions for reconciliation. Another important factor is the establishment of facts about the past and reparations (as restorative justice elements).Restorative justice is definitely something that is in line with Yemeni culture, but only if there is accountability, apologies for past mistakes, and assurances on non-repetition.In this regard, previous counter-terrorism efforts by the Yemeni government vis-à-vis “terror detainees” in Yemen have failed because justice was not an essential component of those efforts. The detainees saw those efforts as a trade off where a detainee is guaranteed release if he relinquishes any links with the thinking of al-Qaeda. While terrorists are known to publicly own their crimes, these detainees insisted that they had committed no crime with al-Qaeda and that their arrest and detention was wrongful. Instead of getting justice, they felt that they had to accept whatever was offered from the authorities as a solution. Any efforts on restorative justice involving Yemeni detainees of the “war on terror” must avoid past mistakes.On a related note, Yemeni authorities plan to establish Independent Human Rights Institutions in Yemen, a plan generally accepted by all stakeholders.
Confronting the Past (and Present and Future)
The above ideas withstanding, there remain significant obstacles toward effectively implementing restorative justice at Guantanamo. For one, there is the question of accessibility: police/authorities and prosecutors keep prisoners far from the public eye. Stake-holding communities—victims included—are kept out of the process, thereby hindering a possible restorative justice process. Arguably, it is much more effective to talk to the enemy than to fight it, and it is certainly much cheaper to do so. This leaves a theoretical and practical challenge when considering ways to link terrorism with restorative justice principles and practices.
The fact that the majority of the detainees are Yemeni is also a challenge. When considering repatriation, it is important to consider the capacity of the country to rehabilitate returned prisoners—a point that would likely be crucial to a restorative process—and to humanely detain those who cannot safely be released. While Yemeni and American authorities are considering solutions to build the relevant Yemeni capacity, implementing them will take time. That said, creative intermediary arrangements through agreements with third countries, for example, could be found.
There are many factors to consider when drafting a restorative justice mandate. What are the objectives? What is the method of inquiry, specifically materiel, personnel, temporal, and territorial scopes of inquiry? What are the operational aspects, such as appointments, roles, removal mechanisms, investigative powers, protections and guarantees, duration of the work, confidentiality, funding, and final provisions? It is beyond the scope of this essay to address all of these factors, among which the temporal scope of inquiry/confronting the past is particularly sensitive.
When it comes to restorative justice, how does one confront the past? To address this issue, conflict transformation experts have described the factors needed to repair the psychological and social fabric after violence on a large scale. Here are some of the factors relevant for the case of Guantanamo:
knowing and acknowledgment
bringing perpetrators to justice
recovery from trauma
community relations work
role of education and the media
security of participants
Many of these values are similar to those of the main tenants of restorative justice, such as inclusion, truth telling, repairing harm done, justice, peace, security, and/or amnesty. These values are not easy to achieve at the same time. Most state-based efforts prioritize one or two of them.
In the context of Guantanamo, dealing with the past is a challenging, yet not insurmountable, proposition. In a situation where both the detainees and the United States, through some of its citizens, can be considered as victims and perpetrators, it is crucial to carefully consider both sides in the design of a justice process necessary to close the prison. The participatory nature of restorative justice, which emphasizes inclusion, balance of interests, problem solving, encounter, amends, reintegration, and truth telling, lends itself particularly well to such considerations. With Guantanamo, restorative justice is in line with most detainees’ cultural backgrounds, especially if accountability and apologies for past mistakes and assurances of non-repetition, are part of the process.
Can restorative justice be a key to closing Guantanamo? Possibly. Restorative justice presents many strengths and opportunities, but it also must overcome serious obstacles to achieve its potential. The intensity of the negative repercussions to come out of Guantanamo in forthcoming decades might very well depend not only on how soon, but also on how the prison is closed. As Judge Robert Jackson forcefully put it: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”
Ethics, Guantanamo Bay, Human Rights, Justice, Morality, Prison, US Foreign Policy, Yemen