Letter from William H. Taft, State Department Legal Adviser, to Christophe Girod, Head of Delegation, International Committee for the Red Cross (ICRC), re: Transfer of Russian Nationals from Guantanamo to Russia

This letter is from William H. Taft, IV, State Department Legal Adviser, to Christophe Girod, the Head of Delegation of the International Committee for the Red Cross (ICRC) concerning the U.S. transfer of Russian nationals from Guantanamo to Russia. Mr. Girod expressed the ICRC's concern for the safety of the Russians to be repatriated to Russia. Mr. Taft’s letter stated that the U.S. received assurances from the Russian government that the repatriated detainees would not be persecuted or tortured upon their return. He notes that Russia is a signatory to the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights, and also permits the ICRC to visit and inspect Russian prison facilities. He concludes with stating that “These decisions are made at senior levels through a process involving officials most familiar with international legal standards and obligations and the conditions in the countries concerned.” And giving his own assurances that the U.S. has reviewed the transfer and finds it appropriate and consistent with the international agreements the U.S. is party to.

Tuesday, May 11, 2004
Monday, November 22, 2004


May 11, 2004

Mr. Christophe Girod
Head of Delegation
International Committee of the Red Cross
Regional Delegation to the US and Canada
2100 Pennsylvania Avenue, N.W., Suite 545
Washington, DC 20037

Dear Mr. Girod,

. Thank you for your letter and verbal note of March 9,
2004 concerning the February transfer for prosecution of
seven nationals of the Russian Federation from Guantanamo
Bay. I understand you have already had discussions on the
matter with representatives of the Departments of Defense
and State.

As you are aware, the legal framework under which the
United States is operating with respect to Guantanamo
detainees is the customary law of warand international
principles regarding asylum and protection from persecution
and torture that apply during armed conflict.

In situations involving the potential release of
detainees, we endeavor to address an individual's
repatriation concerns including those who present credible
non-refoulment concerns. We appreciate whatever assistance
the ICRC may provide in identifying third countries that we
may approach to accept released detainees who have
expressed repatriation fears. While there is no obligation
under the law of war to satisfy every objection to
repatriation, we nevertheless endeavor to address these
matters, at least for those who present credible non­refoulement concerns.

The circumstances are somewhat different, however,
when a detainee is transferred to the control of another
government for prosecution for crimes that would normally
disqualify a person from protection under asylum
principles. Even in such a case, the United States has



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made clear that it does not expel, return ("refouler") or
extradite individuals to other countries where it believes
it is "more likely than not" that they will be tortured.
Before transfer from Guantanamo to the control of another
government, United States policy is to obtain specific
assurances from the receiving country that it will provide
humane treatment and not torture the individual to be
transferred. In determining whether it is "more likely
than not" that an individual would be tortured, the United
States takes into account the treatment the individual is
likely to receive upon transfer, including inter alia the
expressed commitments of officials from the receiving
country. I can assure you that the United States would

pursue any credible report and take appropriate action if
we had reason to.believe that these assurances would not
be, or had not been, honored.

Our•decisions with respect to detainees are made on a
case-by-case basis, taking into account the particular
circumstances of the transfer, the country, and the
individual concerned. In the case of the Russians recently
transferred for detention, investigation and prosecution in
Russia, we obtained assurances from senior Russian
authorities that the detainees will be treated humanely in
accordance with Russian law and obligations. Russian
obligations include those under the European Convention on
Human Rights, the United Nations Convention Against Torture
and other Cruel, Inhuman or Degrading Treatment or
Punishment, and the International Covenant on Civil and
Political Rights. We are also aware that the Russian
government has generally permitted the ICRC to conduct

prison visits in the past and hope your delegation would

• inform us if ICRC representatives in Russia encounter
problems visiting the individuals transferred to Russia
from Guantanamo. We may also pursue access to these
individuals as appropriate and necessary. In these
circumstances, we are satisfied that the Russian government
will honor its assurances and that the detainees will also
have the ability to redress any violations of the relevant
obligations under Russian law.

If a case were to arise in which the assurances we
have obtained frOm another government are not sufficient
when balanced against an individual's specific claim, we
would not transfer a detainee to the control of that
government unless the concerns were satisfactorily


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resolved. We do not agree with the assertion in the verbal
note of March 9, 2004 that international law prescribes any
specific procedures for resolving such concerns. Your
suggestion of a review by ari independent body with the
opportunity of appeal would be contrary to longstanding

U.S. practice (and the practices of other nations) of
entrusting such issues to the Government's discretion for
decision after a review of the circumstances. These
decisions are made at senior: levels through a process
involving officials most fam'iliar with international legal
standards and obligations and the conditions in the
countries concerned.

Whether a detainee is being considered for release or
for transfer for investigatiOn and prosecution under
national criminal.laws, the'pre-departure interview
conducted by the ICRC can assist in identifying particular
concerns that may not have arisen during communications
between U.S. officials and detainees. We appreciate the
ICRC's communications on these matters and assure you that
they are given full consideration.

I know that the ICRC shares the goal of the United

States to accelerate the review process and releases from

Guantanamo and recognizes.the importance of pursuing

criminal prosecutions, whether by the United States or
other governments prepared to do so. The United States
remains committed to consultation and dialogue with the

ICRC and looks forward to deyeloping constructive solutions
whenever differences arise so that we may achieve our
common goals.


William H. Taft, IV