UN’s arbitrary detention group calls for immediate release of Palestinian Abu Zubaydah, saying detention has no basis in law

A UN body has declared that the detention of a long-term Guantánamo inmate, Abu Zubaydah, has no lawful basis and called for his immediate release, warning that the systemic deprivation of liberty at the camp may “constitute crimes against humanity”.

The UN working group on arbitrary detention (UNWGAD), also declared the UK, among other countries, was “jointly responsible for the torture and cruel, inhuman or degrading treatment of Mr Zubaydah” over his more than 20 years in detention.

The UNWGAD finding released on Friday specifically addresses the case of Zubaydah, a 52-year-old Palestinian captured in Pakistan in March 2002, and held and tortured in a series of CIA black sites, before being transferred to the Guantánamo Bay prison camp in 2006. The US initially claimed he was “number three” in al-Qaida but later conceded he was not a member at all.

The finding went further to address detention at Guantánamo in general, and “expresses grave concern about the pattern that all these cases follow and recalls that, under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law may constitute crimes against humanity”.

The UN working group is a quasi-judicial body, issuing legal judgments on behalf of the international community, but they are not binding, nor does it have the power to enforce its findings. It is made up of five legal experts from around the world: the current panel consists of lawyers, law professors and former judges drawn from Malaysia, New Zealand, Ukraine, Ecuador and Zambia.

Friday marks the first time an international body has referred to the 21-year-old prison camp as a potential crime against humanity, the first time such a body has ruled against the US for Abu Zubaydah’s detention, and the first international case finding against the UK, Morocco, Thailand and Afghanistan, all of whom are deemed complicit in arbitrary detention, rendition and torture.

The decision also found Pakistan, Poland and Lithuania to be part responsible: Pakistan for participation in his arrest and rendition, and Poland and Lithuania for hosting black sites. The European Court of Human Rights has previously ruled against Poland and Lithuania for their participation in the web of secret detention facilities and rendition flights.

Helen Duffy, Zubaydah’s international legal representative, who runs a Hague-based legal group, Human Rights in Practice, said: “Today’s decision is a powerful reminder of the complete unlawfulness of Guantánamo, and our client’s situation in particular.”

“The UK has been found legally responsible for ‘complicity’ in our client’s torture and ongoing unlawful detention, and reparations should follow,” Duffy said. “This can include offers of relocation, recognition and apology, rehabilitation and compensation.”

She added: “We need to reckon with the fact that the ‘war on terror’, as waged for 20 years, has failed. But we cannot pretend to learn lessons from it while perpetuating its most notorious wrongs.”

There are 30 inmates left at the Guantánamo camp, of which only one has been convicted of a crime; 10 are involved in military tribunal proceedings, although in most cases, the trials have not even started; 16 have been recommended for a transfer to another country, pending security guarantees; and the Biden administration has been in quiet negotiations with foreign governments to persuade them to accept transferred inmates.

Zubaydah is one of three “forever prisoners” who have not been charged and not been recommended for transfer.