V. Repatriation We can never retake the legal and moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to one of us. Colonel Morris Davis, former Guantanamo Bay chief prosecutor 131 Though the U.S. government has been operating detention facilities and holding Pakistani citizens since 2002, negotiations over the repatriation of Pakistani citizens have dragged on for years. At the root of this delay lies the failure of the U.S. and Pakistani governments to agree on two key issues: humane treatment and security guarantees. There are legal, policy and political challenges to repatriation confronting both governments. To satisfy its non-refoulement obligation when transferring detainees to Pakistan, the United States must confront Pakistan’s record of torture and ill-treatment of detainees, particularly those held for national security reasons. Humane treatment is a serious concern. However, there are factors specific to detainees’ cases that may substantially mitigate the risk of abuse they would face in Pakistan. There are also effective, concrete measures that the United States and Pakistan can take to ensure transferred detainees’ rights are respected. The United States is also seeking security assurances from the Pakistani government in order to address fears that detainees might pose a security risk to the United States upon release. Such fears should not be overstated or politicized in a way that violates the rights of all detainees by effectively trapping them in indefinite detention without charge or trial. In addition, systemic flaws in the U.S. detention review system—most salient in the case of TCN detainees—may undermine the accuracy of threat assessments. These shortfalls produce a one-sided impression built on evidence that is near impossible for the detainee to challenge. It is also important to weigh potential security concerns against the broader legal, moral and political costs of indefinite detention. Negotiations have stalled for years hampered by a failure to enact coherent polices, conduct sustained negotiations and insulate the repatriation process from politicization, both within the United States, and between the U.S. and Pakistani governments. Yet it is clear that both governments have the policy and legal options necessary to move the process forward, repatriate detainees, and bring an end to their indefinite detention. a) Non-refoulement and humanitarian assurances in international law The principle of non-refoulement in international law prohibits a state from transferring an individual in its custody to the custody of a state where there are substantial grounds for believing that the individual would face a real risk of torture or cruel, inhuman or degrading treatment. 132 Though 131 “President Obama: Close Detention Facility at Guantanamo Bay”, https://www.change.org/petitions/president-obama-close-detention-facility-at-guantanamo-bay 132 Article 3(1) United Nations Convention Against Torture (UNCAT). The term “transfer” includes extradition, deportation and any other forms of transfer from one State to another. See also Sir Elihu Lauterpacht and Daniel Bethlehem, “The scope and content of the principle of non-refoulement: opinion”, in Erika Feller, Volker Turk and Frances Nicholson (eds.), Refugee Protection in International Law: 35