09/12/2013 09:53 GMT | Updated 05/02/2014 05:59 GMT

The Guantanamo Bay Detainees Reluctant to Go Home

Balancing national security concerns with human rights obligations is a perennial problem for Western governments. Nowhere has this liberty/security balance proven more controversial than Guantanamo Bay, where a recent incident particularly highlighted this dilemma.

The US has just transferred two detainees there, Bensayah Belkacem and Djamel Ameziane, back to Algeria, against their will. This is unusual: the US government is used to Guantanamo Bay detainees asking to be sent home, not asking to be kept there longer.

Instead of Algeria, Belkacem and Amerziane's preference was to be repatriated in Bosnia and Canada respectively. They feared being targeted for attack by terrorists in Algeria due to their apparent renunciation of violence, and there were also likely fears concerning their treatment by the Algerian government; one former detainee transferred there in 2010 has already been jailed.

The detainees' professed lack of interest in violence should be treated with caution. Ameziane is thought to have trained at al-Farouq, one of al-Qaeda's Afghan training camps, before being captured following the 2001 US invasion. Belkacem was assessed by the US to be the Bosnian contact of terrorist facilitator Abu Zubaydah, and was linked to a potential attack against the US Embassy in Sarajevo. Both were likely members of the Armed Islamic Group, the Algerian terrorist outfit.

Despite this, fears of potential mistreatment of detainees are taken seriously by the US. The Pentagon has already confirmed that its obligations under the United Nations Convention Against Torture would prevent them transferring any detainees to countries where they would be at risk of torture. In the long-term, an inability to release Guantanamo detainees due to the prospect that they could be endangered in their host countries will hinder any attempt to shut the detention centre down.

If this all sounds vaguely familiar, then it should. Europe has been grappling with similar issues for years. The UK, for example, has been legally unable to deport terrorist suspects due to European Court of Human Rights fears over any potential mistreatment in their homeland. It took almost a decade of legal battles to deport the jihadist cleric Abu Qatada to Jordan, and similar issues have existed over the deportation of Libyans, Algerians and Pakistanis (to name just a few). The state has been left in the unenviable position of acknowledging that these men are national security threats on one hand; and yet cannot be deported on the other. This is exacerbated by the fact that the nature of the evidence used often means that such men cannot be tried either. Resolving such issues are a key component in the state response to terrorism.

The ways in which liberal democracies have responded so far has only served to highlight divisions between the US and Europe. This is reflected in public opinion on certain key policies. For example, extraordinary rendition, wartime detention and drone strikes provoke far less controversy in the US than in Europe.

However, perhaps the starkest example is Guantanamo Bay itself. European public opinion is overwhelmingly in support of its closure, whereas the polling consensus in the US is that it should remain open - with even dissenters not regarding it as a priority issue. Furthermore, the issue can tend to be more about optics than substance. Even a left of centre publication such as the Washington Post recently acknowledged that, '[e]ven when Guantanamo is closed, a legal regime will be needed for the arrest, interrogation and long-term detention of foreign terrorist suspects who cannot be handled by the domestic U.S. justice system'.

This basic principle of detention without trial for terrorist suspects is unthinkable in Europe. In the UK - one of the European states that treated the terrorism threat at least somewhat seriously after 9/11 - it was explicitly struck down in the courts, after the government detained twelve foreign terror suspects at Belmarsh prison. That it is waved through by the Washington Post suggests that it is not the principle of detention without trial that is problematic. Instead, it is the public relations disaster that Guantanamo Bay has come to represent.

These differing perceptions between Europe and the US are unlikely to change. The US is the prime target for al-Qaeda and its affiliates, something that is reflected in the aggressiveness of its counterterrorism policies. Europe is still much more comfortable treating terrorism as a crime that needs to be policed, rather than an act of war. However, the Belkacem and Ameziane case serves as a reminder that for all the differences, many of the problems faced - such as balancing security and liberty - are exactly the same.