European Courts Move On CIA Rendition Cases; So Far Nothing From Their U.S. Counterparts

CIA Seal - Lance Page
CIA Seal – Lance Page

As Foreign Policy reports, on December 3 and 4 representatives of Poland went before the European Court of Human Rights, in Strasbourg, France (ECtHR) to defend the government from allegations that it violated the rights of two men currently held by the United States at the Guantánamo Bay prison. Abd al-Rahim al-Nashiri and Abu Zubaydah are two high-ranking al Qaeda operatives who claim that their human rights were violated while they were detained at a secret CIA prison on Polish soil. The allegations, certainly highly embarrassing for the Polish government, place the spotlight once again on the CIA’s infamous rendition program that was put in place after the attacks of 9/11 in New York City and the subsequent invasion of Afghanistan. For many, the case has become a “litmus test” for Poland, in which its participation in the US’ War on Terror is coming head-to-head with its expressed commitment to human rights, at both the national and European level. Or as Polish Senator Jozef Pinior ominously puts it to Foreign Policy, “[t]he fate of the consolidation of Polish liberal democracy is on the line.”

After being unable to obtain a remedy in the national courts, the lawyers for al-Nashiri filed a complaint before the ECtHR in 2011, which alleged that Poland breached several articles of the European Convention on Human Rights. In 2012, Zubaydah also joined the suit. The case is currently in a preliminary phase, during which the ECtHR evaluates the credibility of the facts as alleged by the plaintiffs. However, the backdrop to the allegations–although in no way determinative of the specific facts as presented by al-Nashiri and Zubaydah–are by now well known. As Foreign Policy reports, “[t]here is ample evidence–including falsified flight logs, documents and witness accounts uncovered by probes conducted by the Council of Europe, European Parliament, and several journalistic and human rights groups’ investigations–that during the height of the U.S.-led war on terror, al Qaeda suspects were detained at secret CIA “black sites” or secret detention facilities in several Eastern European locations, including in Romania, Lithuania, and Stare Kiejkuty, a military base in northern Poland. In these facilities, the detainees were tortured, or subjected to so-called “enhanced interrogation techniques.” As to the specific circumstances of al-Nashiri, his lawyers tell Foreign Policy that he was subjected to mock executions, “stress positions,” and to having his captors threaten to sexually abuse his mother in front of him.

This is not the first time that the ECtHR has had the opportunity to address questions relating to human rights violations arising from the CIA’s secret rendition program. In January 2013, the Grand Chamber of the ECtHR (the term given to the ultimate panel of the body, which convenes 16 judges of the Court), delivered its judgment in the case of El-Masri v. the Former Yugoslav Republic of Macedonia. As then reported by Strasbourg Observers, the case involved a German national who was “renditioned” by the CIA and taken to Afghanistan, where he was kept for four months before the agency realized he was not the man they were looking for. Mr. Khaled El-Masri was originally detained upon entering Macedonia by bus on December 31, 2003 by agents of that country. He was then kept in a hotel for the following 23 days and questioned by Macedonian agents about his possible affiliation with Al-Qaeda, before subsequently being handed over to CIA agents at the Skopje airport. After being submitted to the so-called “capture shock” treatment, which entails the handcuffing, blindfolding and undressing of the “prisoner, he was “sodomised by an object, drugged forcefully placed in a CIA aircraft, and finally flown out of Macedonia to Afghanistan.” During his time in Afghanistan El-Masri was subjected to torture and denied contact with his family, legal counsel or any relevant judicial organ. Once his captors realized that it was a case of mistaken identity, he was “released” near the Albanian border. The entire ordeal ended on May 29, 2004, when El-Masri was able to return to Germany. The complaint that gave rise to  the case was submitted to the ECtHR on July 20, 2009

In its judgment, the ECtHR first determined that El-Masri had established “beyond reasonable doubt” the facts and events of his allegations. The Court based this on corroborating information provided by expert opinions and additional international, independent reports and investigations. Moreover, the State of Macedonia was unable to produce an alternate account of the incidents at issue. As to the merits of the case, the ECtHR ruled that Macedonia had breached the European Convention’s prohibition of torture (article 3); right to liberty and security (article 5); right to respect for private and family life (article 8); and right to an effective remedy (article 13) in the events surrounding the capture and handing over of El-Masri to CIA agents. Significantly, the Court ruled that, in regards to the application of the Convention’s right for persons to be protected from torture and other forms of ill treatment, the Macedonian government had breached El-Masri’s substantive as well as procedural rights. The former on the basis of the Macedonian agents’ active involvement in the proven violations and knowledge of the location where he was going to be sent, and their omission to either take preventive measures or obtain guarantees when he was transferred to the CIA agents. The latter violations, meanwhile, were due to the Macedonian authorities’ failure to undertake an adequate investigation into the events once it had been informed of the allegations. Consequently, under the European Convention, a State may not only be held responsible for violations arising from its own agents’ actions and omissions as well as the failure of its police and judicial bodies to fully investigate when a violation has been alleged. It may also be found in breach of its obligations due to its involvement or knowledge regarding the extra-judicial transfer of a person or persons “from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment.” The ECtHR had previously announced this legal norm, in the case of Abar Ahmad and Others v. the United Kingdom.

As this earlier case demonstrates, if the allegations put forth by Abd al-Rahim al-Nashiri and Abu Zubaydah are proven correct, Poland does indeed have much to be concerned about.

In a stark reminder of the differential treatment that United States courts are giving to similar issues, just a day after Polish authorities were defending themselves before the ECtHR, the US Court of Appeals for the District of Columbia affirmed a ruling denying a writ of habeas corpus for Guantanamo detainee Abdul Razak Ali. As Jurist reports, in his opinion agreeing with the ruling Senior Circuit Judge Edwards did express concern over the indefinite detention of the petitioner, who was captured in 2002, writing, “[i]t seems bizarre, to say the least, that someone like Ali, who has never been charged with or found guilty of a criminal act and who has never ‘planned, authorized, committed, or aided [any] terrorist attacks,’ is now marked for a life sentence.” It may seem “bizarre,” but the truth remains that in the United States there is as of yet no firm ruling that these types of government actions are accompanied by any actual legal consequences. However, the next opportunity to remedy this wrong is already here. On December 12, a U.S. Federal District Court in Washington heard arguments in a case brought by the American Civil Liberties Union on behalf of American citizen Amir Meshal, who alleges that in 2007 he was secretly detained for four months in East Africa on orders of the FBI, during which he was subjected to torture in an attempt to coerce a false confession from him. Meshal has never been charged with a crime.

For the Foreign Policy Passport report on the case of Abd al-Rahim al-Nashiri and Abu Zubaydah click here.

For the full Strasbourg Observers report and analysis on case of El-Masri v. the Former Yugoslav Republic of Macedonia, click here.

And for the ECtHR judgment click here.

For the Jurist report on the denial of the writ of habeas corpus click here.

For the ACLU’s report on the case of Amir Meshal click here.

 

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