Sumario: 15 June 2009, Brussels - The European Union has finalized the creation of an enabling environment, a collective framework, that helps those Member States who wish to do so to receive ex-detainees from Guantanamo who are "cleared for release" and expressed their will to be resettled within the European Union or Schengen associated countries and who for compelling reasons cannot return to their home countries of origin.
The EU enabling environment has several parts:
1. Council Conclusions of the Justice and Home Affairs Council of 4 June 2009 and information exchange mechanism
The decisions whether or not to accept former detainees from Guantanamo would be taken on a case by case basis. EU Member States alone decide if and how they accept former detainees - decisions on the reception of former detainees and the determination of their legal status fall within the sole responsibility and competence of a receiving Member State or Schengen associated country.
Because the decision of any EU Member State to accept a former detainee has implications for other Member States and Schengen associated countries as a result of the abolition of controls at internal borders within the Schengen area, EU Member States agreed that a collective framework was necessary, whatever the individual decisions of the Member States on the subject matter might be.
A mechanism for information sharing between Member States and Schengen associated countries was adopted at the JHA Council meeting on 4 June 2009. This mechanism creates an environment of transparency that allows sharing of information relevant to country security and taking appropriate measures if necessary. Information will be exchanged before and after the decision of a country to receive someone. The existing channels for the information exchange will be used, subject to all legal conditions, with full respect to personal data protection, fundamental rights and human freedoms.
General information on a request received by the US as well as the information about its decision (accept or not) will be reported to the Ambassadors.
2. Joint Statement of the European Union and its Member States and the United States of America on the Closure of the Guantanamo Bay Detention Facility and Future Counter-terrorism Cooperation.
The collective framework also includes a political, non legally binding joint EU-US statement which has been endorsed by the EU and the US today. The statement sets the framework for cooperation with the US on the closure of Guantanamo and paves the way for strengthening cooperation on counter-terrorism in the future.
The statement highlights the importance of respect for shared values, international law, and the rule of law and human rights in the fight against terrorism, which makes us safer and more secure. It welcomes the steps already taken by President Obama to change course on counter-terrorism policy and highlights the importance of the ongoing reviews of US detention, transfer, trial and interrogation policies.
The EU and the US reaffirm that the primary responsibility for closing Guantanamo and finding residence for the former detainees rests with the US.
Besides setting up a framework for information exchange the EU and US also address financial implications of the reception of ex-detainees. Within this collective framework, transfers of detainees will be negotiated and carried out bilaterally between the US and individual Member States.
The statement is also forward - looking. Both sides commit to deepening cooperation in the area of freedom, security and justice, including cooperation in the fight against terrorism, based on shared values, international law, and respect for the rule of law and human rights. Recognizing the important legal questions related to the fight against international terrorism, both sides commit themselves to continuing and deepening the fruitful dialogue among Legal Advisers. The EU and US will explore the possibility of developing a Set of Principles as a common reference point in the fight against terrorism.
3. Contribution to the Detention Policy Task Force
In his Executive Orders of January 22, 2009, President Obama has taken important steps to change the course of US counter-terrorism policy by ordering the closure of Guantanamo, prohibiting "enhanced interrogation", ending secret detention and ordering a review of US detention, transfer, trial and interrogation policies in the fight against terrorism. These reviews are still ongoing. The Detention Policy Task Force will present its report on July 22, 2009.
The EU is lending its support to the US in the closure of Guantanamo in the expectation that the underlying policy issues would be addressed. Therefore, the policy reviews are very important for the EU. By working with the US in its endeavours to close Guantanamo, the EU hopes it can make a positive contribution to changing US policies. The EU considers that, in particular, indefinite detention without trial needs to be addressed to avoid creating unlawful detention facilities elsewhere.
Upon invitation of the White House, the EU has decided to share its views on international law principles relevant to counter-terrorism with the Detention Policy Task Force.