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Leiden professor petitions UN to release Guantanamo prisoner

Palestinian national Abu Zubaydah was captured by the CIA in March 2002 and has remained in detention ever since, without any form of trial. Leiden professor Helen Duffy is doing all she can to secure his release or a fair trial. Her hopes now lie on international pressure and the UN Working Group on Arbitrary Detention.

They sometimes call him the ‘guinea pig’ because there is no American torture method that hasn’t been tried on Abu Zubaydah. He’s been subjected to loud music that has kept him awake for nights on end, has been shackled in painful stress positions and has been locked in small, pitch-dark confinement boxes. Not to mention the waterboarding: Zubaydah’s guards poured water over his head until he felt like he was drowning a staggering 83 times in one month.

But worst of all is that there is no end in sight. For 19 years Zubaydah has been locked up against his will in the twilight zone that is Guantanamo Bay. There, at the American military base in Cuba, he and 39 other terrorism suspects are still being held not only without trial, but also without charge. And no one knows how long this situation will last.

‘Every day my client remains imprisoned in the name of the global war on terrorism.’

Professor and human rights lawyer

It’s the lawlessness that Helen Duffy can’t bear. Alongside her job as Professor of International Human Rights at Leiden University, she has her own law practice in The Hague, Human Rights in Practice. Here she litigates against countries that don’t take human rights that seriously. ‘And the war on terror is a perfect example of that.’ Duffy has been Zubaydah’s international lawyer since 2010.

Helen Duffy

We speak just when the war on terror appears to be coming to an end, on the very day that the Americans withdraw their last troops from Bagram, the largest military base in Afghanistan. Shortly before this saw the death of Donald Rumsfeld, the defence minister who claimed that Iraq had weapons of mass destruction, thus justifying the American invasion of Iraq. A growing number of our students were born after the terrible attacks on 11 September 2001, the first domino that set the rest in motion.

For Zubaydah this is no history lesson, Duffy is keen to emphasise. ‘His suffering continues to this very day. Every day my client remains imprisoned in the name of the global war on terror. There are no legal grounds for his detention and no effort has been made whatsoever to ensure he has a fair trial. And as he has never been formally charged, we can’t respond to the evidence, if there is any. This level of lawlessness is infuriating.’ Duffy’s pronunciation of the word infuriating reveals her Scottish roots. 

Who is Abu Zubaydah?

Abu Zubaydah (1971) was captured in Pakistan in March 2002 and was suspected of being a senior member of Al-Qaeda. A spokesperson for the American government said he was, ‘a member of Osama bin Laden’s inner circle’ and claimed after his arrest that, ‘one of Al-Qaeda’s many tentacles has been cut off.’ But although some sources suggest that Zubaydah showed sympathy with jihad – he is said to have called 9/11 a ‘magnificent operation’ – it later became clear that he certainly didn’t have a leading role in any terror organisations. That is why the UN later delisted him from the official sanctions list.

For Duffy uncertainty about Zubaydah’s past is irrelevant. ‘What this is about is whether there is evidence to conclude that my client is guilty of a crime and if so, whether he has been charged and sentenced by a judge. But we just don’t know because the American government has never presented the evidence. Loose accusations have been made in the media, but Zubaydah has never had the opportunity to defend himself in court. For my client it apparently isn’t true that he is innocent until the contrary is proved.’

To increase the pressure, Duffy is turning to the UN Working Group on Arbitrary Detention. Surprisingly enough, it’s not just the United States in the dock, but six other countries too. Before arriving at Guantanamo Bay, Zubaydah was detained in secret CIA prisons in Thailand, Afghanistan, Lithuania, Poland and Morocco. Documents later showed that he had been tortured at these mysterious black sites. The United Kingdom has also been charged because it provided the CIA with ‘interview questions’ when it was aware that Zubaydah was being tortured to reveal information.

‘I’m hoping for a strong statement from the UN working group.’

As the United States has allowed the problem to simmer for 19 years already, Duffy plans to ramp up the pressure via the six countries that also bear responsibility for Zubaydah’s fate. ‘I’m hoping for a strong statement from the UN working group about his unlawful detention. It would be good if these six countries would feel a shared responsibility to push for the release of my client.’ This is a typical of Duffy’s style. In 2014 she and her colleagues won a historic victory when the European Court of Human Rights found Poland responsible for her client’s torture. Four years later it was Lithuania’s turn for a clip round the earhole. Both countries were ordered to investigate who was responsible for these errors from the past.

Symbolic of wider phenomenon

A ‘strong statement’ from the UN working group won’t mean that Zubaydah is a free man anytime soon. It will add weight to the argument, but the working group isn’t a court of law. ‘There’s still no effective way to uphold statements like this internationally, or even to guarantee international human rights in themselves,’ Duffy admits. ‘There’s no magic solution. It’s an uphill struggle.’

Abu Zubaydah

Why is Duffy putting so much effort into one single prisoner, someone who might not have been an Al-Qaeda leader but who may well have sympathised with jihadists? ‘First and foremost because he is a human being with the same human rights as me,’ says Duffy. ‘But also because this will undoubtedly happen again unless we learn our lessons. This case is symbolic of a much wider phenomenon: sacrificing individual freedoms and human rights for a sense of security. The war on terror showed the extent to which we were prepared to accept this.’

Guantanamo Bay may be an extreme example, says Duffy, but it’s just the tip of the iceberg. Other countries are relinquishing other freedoms for the sake of security. This is arbitrary, and as the rule of law unravels, our rights are becoming more vulnerable. ‘If the war on terror has taught us one thing, it’s that removing these human rights and democratic principles makes us much less safe in the long term.’

More than anything, Duffy’s protest against the ‘forever prisoners’ of Guantanamo Bay is a serious test for the American president, Joe Biden. In the past he has said he wants to close the camp, preferably before the end of his term of office. Duffy: ‘We’ll see how devoted he really is to the rule of law.’

Text: Merijn van Nuland
Main photo: Hilko Visser - T.M.C. Asser Instituut

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