Originally uploaded at SSRN.


The international refugee protection system is under threat. States weary of increased refugee flows and preoccupied with national security increasingly exploit legal gaps or avoid refugee law altogether. The U.S. approach to resettlement of Guantánamo detainee refugees exemplified this trend. Yet, in the Guantánamo context, U.S. avoidance of international refugee law put the executive in a bind that it could not easily escape: Because the U.S. executive was unwilling to assume the political cost of resettling the refugee detainees domestically, it resorted to peddling them for resettlement to foreign states while, at the same time, mounting a robust legal defense of their detention. The executive’s strategies forced the United States into a double-speak — defending detainee connections to terrorism domestically while affirming detainee innocence internationally — that undermined U.S. credibility with foreign states and ultimately slowed the refugee resettlement process.

Beyond the Guantánamo Bind asserts that the executive could have escaped this dilemma by delegating authority to broker resettlement agreements to the United Nations High Commissioner for Refugees (“UNHCR”). UNHCR brokerage could have depoliticized and facilitated the resettlement process. Ultimately, UNHCR participation could provide a solution for the kind of refugee problem that the Guantanamo Bind exposes, serving as a safety valve, offered to states that generally comply with international refugee law for use when full compliance would be politically prohibitive. The approach could thus discourage states from eroding international refugee law by diluting in domestic law full international refugee protections.