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Bulletin

INTERIGHTS

Spring 2010

Volume 16 Number 1 Kidnapped by the State: Extraordinary Rendition and Secret Detention in the ‘War on Terror’

INTERIGHTS The International Centre for the Legal Protection of Human Rights


ISSN 0268-3709

Staff Danny Silverstone Executive Director Andrea Coomber Legal Practice Director Helen Duffy Litigation Director Pรกdraig Hughes Acting Litigation Director Joe Curran Finance Director Iain Byrne Senior Lawyer, Economic and Social Rights Vesselina Vandova Senior Lawyer, Security and the Rule of Law Judy Oder Lawyer, Africa Solomon Sacco Lawyer, Africa Constantin Cojocariu Lawyer, Europe Yuri Marchenko Lawyer, Europe Dina Vedernikova Lawyer, Europe Sibongile Ndashe Lawyer, Equality Arpine Avetisyan Legal Team Co-ordinator, Europe / Economic and Social Rights Iya Kvitsiani-King (maternity cover) Legal Team Co-ordinator, Europe / Economic and Social Rights Moni Shrestha Legal Team Co-ordinator, Africa / South Asia / Equality / Security and the Rule of Law Sarah Harrington Fundraising and Communications Manager Rachel Fleetwood Information and Publications Officer Vicky Lloyd Fundraising Officer Kathryn Mutevelian Database Officer Amana Dawuda-Wodu Office and HR Manager Chloe Marong Legal Team Administrator Iryna Peleshko Finance Manager Michelle Woodbine Office and HR Administrator

Board of Directors Lord Lester of Herne Hill QC Jeremy McBride Priscilla Ashun-Sarpy Professor Christine Chinkin Tim Eicke Michael Griffin Anne Lapping Dr Neville Linton Alexandra Marks Professor Rachel Murray Donncha O'Connell Emma Playfair Dr Lynn Welchman International Advisory Council Professor Philip Alston Florence Butegwa Roger Errera Professor Yash P Ghai Asma Khader Viviana Krsticevic Marek A Novicki Sonia Picado Professor Gerard Quinn Dr Mary Robinson Professor Martin Scheinin Suriya Wickremasinghe interights Lancaster House 33 Islington High Street London N1 9LH UK Tel: +44 (0)20 7278 3230 Fax: +44 (0)20 7278 4334 E-mail: ir@interights.org Website: www.interights.org Registered Charity No. 292357 Incorporation No. 1927581 Copyright 2010 interights Items from the Bulletin may be reproduced by prior agreement with the Editor. The views expressed in the Bulletin are not necessarily those of interights.


Bulletin

INTERIGHTS

Spring 2010

Volume 16 Number 1 Kidnapped by the State: Extraordinary Rendition and Secret Detention in the ‘War on Terror’ Editors: Vesselina Vandova and Rachel Fleetwood Editorial Vesselina Vandova 2 Extraordinary Rendition and International Law Helen Duffy 3 Blindfolded, Handcuffed and Carted Off: An Appraisal of Unlawful Transfers as a Response to Security Threats in Africa Judy Oder 11 Practice and Procedure Litigating Extraordinary Renditions Wolfgang Kaleck and Andreas Schüller 34 Current Legal Developments CIA Secret Detention Places in Poland – Current Legal Developments Adam Bodnar 36 USA Challenges to the ‘Extraordinary Rendition’ Programme Ben Wizner and Steven Watt 40 The Case of Binyam Mohammed Rachel Fleetwood 42 Reference Extracts from the Joint Study on global practices in relation to secret detention in the context of countering terrorism (January 2010) 45 International Law Reports 17 - 32


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INTERIGHTS Bulletin Volume 16 Number 1 2010

Editorial Vesselina Vandova In the Polish village of Stare Kiejkuty there is an intelligence training school with a revealing history. During the Second World War the Nazi SS used the Stare Kiejkuty site for intelligencegathering. After the war, it served as a centre for Soviet military intelligence (in 1968 it was from here that the operation to crush the Prague Spring was planned). And in 2005, allegations surfaced that it had been used between 2003 and 2005 by the United States of America’s Central Intelligence Authority (CIA) to detain, interrogate and torture terrorist suspects abducted from the streets of Asia and Africa.* In the first two instances, Stare Kiejkuty was commandeered by an occupying power: Germany during the Second World War, and the Soviet Union in the post-war years. But Poland’s situation now is very different. If Poland, as alleged, has let the CIA use its territory and its Stare Kiejkuty base, it has done so as a free and democratic state. This striking difference highlights a key characteristic of the extraordinary rendition programme of the USA since 11 September 2001. Not only does this programme deliberately bypass legal process, but it also encourages other states to jettison the rule of law. Poland is by no means the only state which has cooperated with the USA at the expense of fundamental rights and the rule of law. The rendition programme cannot work unless other states provide assistance in abduction and secret detention, or provide intelligence information, airports, personnel, or facilities such as the Polish base. It depends for its existence, therefore, upon fostering a culture in which international law is seen as an obstacle which only a coordinated international

joint effort by enlightened states can get around. The current edition of INTERIGHTS’ Bulletin is part of our work to challenge these unusual and complex violations of basic human rights and of the rule of law. As Helen Duffy’s and Judy Oder’s articles both detail, over the course of about five years, as a result of the illicit collaboration between states, hundreds of individuals have been kidnapped, unlawfully transferred between countries, detained incommunicado, ill-treated and tortured in order to extract information about suspected terrorist activities. Families have lived for years in anguish and uncertainty about the whereabouts of their husbands, sons, and fathers, fearing they might never see them again. Helen Duffy’s article defines these violations under several international legal regimes and looks into questions about the responsibility of states under human rights and general international law. Judy Oder’s article examines several cases of terrorist suspects kidnapped in various African states, where the practice of unlawful transfer and incommunicado and secret detention appears to continue. It also reviews the complaints brought before local courts and the African legal mechanisms, which provide for the accountability of states for their participation in the rendition programme. The challenges in achieving accountability of states and redress for persons who have suffered rendition and secret detention are immense and require long-term efforts. As Wolfgang Kaleck and Andreas Schüller’s article illustrates, the main obstacles to date have been the secrecy that still taints

the CIA rendition programme, and the tactics of states to avoid judicial scrutiny at all costs. The case studies of Maher Arar and Khaled El-Masri (by Ben Wizner and Steven Watt), Binyam Mohamed (by Rachel Fleetwood), and of the alleged Polish secret site (by Adam Bodnar), concern the continuing attempts of the United States, the United Kingdom and Poland to conceal information and prevent access to key evidence on grounds of national security. The lawyers from the American Civil Liberties Union, the UK-based Reprieve and the Polish Helsinki Foundation for Human Rights have all faced major obstructions when trying to ascertain basic facts about what has happened. However, they, and other human rights lawyers around the world, continue to seek justice, compensation and protection from further abuse for the survivors of the CIA extraordinary rendition programme. We hope that the information included in this edition will assist lawyers in achieving these goals.

Vesselina Vandova is Senior Lawyer, S e c u r i t y a n d t he R u l e o f L a w , a t INTERIGHTS.

* Priest, D., ‘CIA Holds Terror Suspects in Secret Prisons’, The Washington Post, 2 November 2005.


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Extraordinary Rendition and International Law Among the most innovative and the most shocking of the many violations to which the ‘war on terror’ has given rise is the ‘widespread, methodical practice of extraordinary rendition…by certain US secret services…’1 Extraordinary rendition as used here refers to the abduction and transfer without any process of law of individuals for interrogation and ‘intelligence gathering’ purposes, often resulting in what has been referred to as ‘torture by proxy’.2 Plausible deniability on the nature of the extraordinary rendition programme (ERP) has diminished through the surfacing of one notorious example after another, the details of which are discussed elsewhere in this edition, of individuals arrested as far afield as Milan, Bosnia and Kenya, transferred through multiple detention sites and states, tortured and detained arbitrarily for years, before being released without apology or redress. The picture that emerges is of a programme driven by the Central Intelligence Agency (CIA) and authorised at the highest levels within the USA administration, but ‘made possible’ by the widespread collusion of many other states internationally.3 It is this multiple actor global landscape that has led to the rendition programme being referred as a ‘spider’s web spun across the globe.’4 After sketching the legal framework, this article will ask questions about the responsibility under international law of the range of actors involved in the ERP before concluding with observations on the challenges ahead.

Extraordinary Rendition: The Legal Framework Wronging Other States: Territorial Integrity and Consular Relations This article focuses on human rights, international humanitarian law (IHL) and international criminal law as the main areas of international law implicated by the practice of extraordinary rendition. But abduction by state agents within the territory of another state may also violate international legal obligations owed towards the territorial state, notably the duties of non-intervention in the affairs of another state and respect for territorial integrity. There are several examples in international practice of transnational abductions having been deemed to engage the international responsibility of the abducting state. The most famous is the Eichmann case, where the United Nations Security Council condemned Israel for violating Argentina's sovereignty and territorial integrity.5 As the Canadian official inquiry into the rendition of Maher Arar6 highlighted, extraordinary renditions also fall foul of applicable rules under the Vienna Convention on Consular Relations, which are aimed at ensuring that individuals in states of which they are not nationals are afforded consular protection.7 So far as states may themselves be wronged by the ERP, the injured state is entitled to demand that conduct that infringes its sovereignty cease, to obtain reparation for such infringement (which would normally involve the return of the abducted individual) and to raise a claim for damages or other form of compensation.8

Helen Duffy Consenting States: Slippery Fish and Red Herrings In the context of the ‘war on terror’, the USA administration has often responded to criticism in respect of the ERP by reference to it having received the ‘consent’ of the territorial state.9 The extent to which such consent has actually been achieved is controversial and difficult to authoritatively uncover.10 But undue significance has been placed on state consent. While relevant to determining violations against the state, it has no bearing on whether individuals’ human rights have been violated and international crimes have been committed, beyond perhaps providing compelling evidence as to the shared responsibility of the territorial state. Renditions and IHL Before focusing on human rights law, it is worth noting that IHL may, in certain cases, be relevant to an assessment of the lawfulness of renditions. Despite the USA’s broad reaching assertions about ‘armed conflict with al Qaida, the Taliban and their supporters’,11 the relevance of IHL to the issue should be treated with some reserve. It governs only those individuals detained and transferred in association with an armed conflict properly so called, such as those in Iraq and Afghanistan.12 The law applicable in international armed conflict or situations of occupation prohibits ‘[i]ndividual or mass forcible transfers, as well as deportation of protected persons from occupied territory…’13 Further provisions prohibit transfer of protected persons to countries where they may face persecution14 and specific provisions on prisoners of war specify that they should only be transferred to another state which is party to, and


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willing to respect, the Geneva Conventions.15 Forced transfers of protected persons constitute ‘grave breaches’ of the Geneva Conventions, serious war crimes carrying individual criminal responsibility, which all states are obliged to repress. Moreover, the provisions of IHL include, for all categories of detainees, and for non-international as well as international conflict, the prohibition on torture and ill-treatment, which is also a grave breach, and the principle of non-arbitrariness, which requires oversight of detention and basic procedural guarantees.16 It also makes specific provision in relation to registration of detainees and access by, among others, the International Committee of the Red Cross (ICRC).17 As such, the application of the ‘law of war’ paradigm does not displace the obligation not to transfer individuals arbitrarily or to expose them to the risk of torture or ill-treatment. States are obliged to respect the Geneva Conventions and ‘do everything in their power’ to ensure that they are respected universally.18 Human Rights Law ‘Extra-territorial’ Renditions and Human Rights Obligations? The USA Government has asserted that its obligations under human rights treaties (the International Convention on Civil and Political Rights (ICCPR) and the United Nations Convention Against Torture (CAT)) do not arise in respect of the ERP on the basis of its ‘extra-territorial’ nature.19 An assessment of the international legal framework suggests a different interpretation. It is well established that a state’s obligations under human rights treaties arise where affected individuals are within the state’s territory or where they are subject to its jurisdiction, through its agents acting abroad.20 It has been famously described as ‘unconscionable’ that the state could violate rights abroad – including through abductions – when it is prohibited from doing so to its own citizens at home.21

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A degree of controversy and confusion has arisen concerning the application of the European Convention on Human Rights (ECHR), but this relates to the lethal use of force by states abroad (such as the bombardment of Belgrade in the Bankovic case22 or killings by UK troops in Basra in the Al-Skeini case currently before the European Court of Human Rights (ECtHR)).23 It has been accepted by states and courts alike that if the state exercises its power abroad to take physical custody of individuals, it is covered by its obligations.24 Moreover, in relation to transfer specifically, the ECtHR has accepted that transfer of individuals from UK custody in Iraq to Iraqi custody engaged the state’s human rights treaty obligations.25 When the state detains, abuses and/or transfers individuals abroad its human rights obligations under treaty and indeed customary law therefore apply.

Rights Implicated by Extraordinary Rendition Torture and Refoulement to Torture and Other Serious Violations Where states engage in torture or illtreatment, alone or in consort with other states, they are responsible for violation of the absolute prohibition of such treatment in human rights law. However, there are various other ways that states can violate the prohibition on torture or ill-treatment without themselves carrying out such prohibited actions. First among them is where a state transfers an individual from its territory or control to that of another state where there is a real risk of serious rights violations. This non-refoulement obligation not to transfer an individual to a state where there are ‘substantial grounds’ for believing there is a real and foreseeable risk of serious rights violations is well established in human rights law.26 Developing practice suggests that the non-refoulement obligation arises where there is a risk not only of torture or ill-treatment, but also of other serious violations of human rights such as violations of the right to life or

a ‘flagrant denial of justice.’27 The obligation of non-refoulement to torture or other non-derogable rights is an absolute obligation that cannot be offset against any risk to national security and is not affected by the alleged conduct of the individual in question.28 The controversial use of diplomatic assurances do not per se alleviate the risk of torture, and the question remains one of fact as to whether there is, in all circumstances, a risk of serious violations upon transfer.29 Although the USA has denied that it is bound by the non-refoulement prohibition, this has been rejected by human rights bodies,30 including in relation specifically to the ERP which has been condemned as a violation of the obligation to protect against torture and ill-treatment.31

Abduction and Detention Abductions plainly fall foul of the right to liberty and to security of the person. At its most basic this right requires that detention has a lawful basis and that procedural guarantees are respected. These include the absolute right to challenge the lawfulness of detention before a neutral arbiter, and for sufficient fair trial rights to make such a challenge meaningful.32 Unacknowledged detention is prohibited and the importance of registration of all detainees to this end has been emphasised.33 The most basic legal principles on lawful detention are patently vitiated by a clandestine programme of abduction and transfer to secret detention. Transfer: Arbitrariness vs Due Process Rights The right to challenge transfer before a neutral body, in accordance with basic due process rights, has been interpreted as a necessary safeguard of the right to non-refoulement referred to above.34 While the precise parameters of the procedural rights arising in relation to transfer may be unclear, and regrettably human rights regimes differ as to the extent to which fair trial guarantees apply to transfer


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procedures, it is clear that the individual must be given ‘an opportunity for effective, independent, and impartial review of the decision to expel or remove.’35 These provisions are supplemented by specific protections concerning the nonexpulsion of foreign nationals.36 There is little doubt as to the unlawfulness of a system which entirely bypasses the legal process, allowing no right of challenge or information, still less the opportunity to invoke judicial or other oversight.37

Rendition as Enforced Disappearance Most insidiously, as the ERP is designed to, and has had the effect of, entirely removing the person from the protection of law, and withholding information from that person and his/her family amounts to enforced disappearance of persons. The International Convention for the Protection of All Persons from Enforced Disappearance defines the practice as: the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.38 A group of United Nations Special Rapporteurs and Working Groups have made clear in the context of the ERP that ‘every case of secret detention amounts to enforced disappearance’.39 The Convention makes explicit that enforced disappearance is a crime against humanity, as already recognised, for example, in the Statute of the International Criminal Court.40 Renditions therefore involve the most serious human rights violations engaging various forms of state and individual responsibility.

Reparation, Investigation and Accountability Human rights regimes recognise the right to a remedy41 and the right to reparation in the face of serious violations.42 The content of the rights depend on the nature of the substantive right at issue.43 Reparation includes restitution which ‘should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law…occurred.’44 It also includes compensation for nonpecuniary damage flowing from the breach.45 In the context of USA secret detentions and unlawful interrogation techniques by intelligence agencies, the United Nations Human Rights Committee found that ‘the State party should ensure that there are effective means to follow suit against abuses committed by agencies operating outside the military structure and that appropriate sanctions be imposed on its personnel who used or approved the use of the now prohibited techniques.’46 In cases of serious allegations of criminality, the state is also obliged to carry out a ‘thorough, independent and effective investigation’ and, where appropriate, prosecute those responsible and impose proportionate penalties.47 While relevant obligations are made explicit in the United Nations Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and for the Protection of all Persons from Enforced Disappearance, they are also inherent in the obligation in general human rights treaties to protect and ensure the rights in the treaties. They have been held to apply equally in security sensitive circumstances, including in situations of armed conflict.48

Other Rights and Affected Persons The overwhelming nature of rendition leads to the undermining of a whole host of other rights, including freedom of movement, the rights to private and family life and many others.49 ElMasri’s case,50 where no information

was available to his family for years, which assumed he was not returning and moved country, is but one that demonstrates the devastating impact on the rights of the individual and his family. Rendition may itself amount to cruel treatment not only of the individual involved but also their family members. Human rights bodies have recognised that disappearance of a close relative, where there is inadequate information and ineffective investigation, may lead to anguish amounting to cruel, inhuman or degrading treatment.51 Likewise, as the Abu Omar case illustrates,52 extraordinary rendition also violates the right to seek asylum from persecution in other states, or to enjoy such asylum where it has already been granted.53 So far as renditions have concerned transfer of persons with a well founded fear of persecution to their country of nationality or habitual residence, the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol may also be violated. Responsibility of States under Human Rights and General International Law As discussed below, the rules on state responsibility in international law make clear that several states may be responsible for an international wrong at the same time.54

Positive Obligations of Territorial States It is well established that states have positive obligations to exercise ‘due diligence’ to prevent violations on their territory, protect against them, and (as noted above) investigate, prosecute and provide redress in the event of breach.55 The test according to the ECtHR is whether ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk…from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.’56 In the event of a serious


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violation, it has been noted that the state must act with ‘exemplary diligence’ in discharging its obligations to investigate.57 As the United Nations Human Rights Committee has noted:

at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party (see also article 1 of the Convention against Torture).58 Forms of Responsibility: Aiding and Assisting, Directing or Controlling and Coercing Responsibility of third states also arises under general international law which provides that states may contribute to, and bear responsibility for, international wrongs in a variety of ways. This includes ‘aiding and assisting’ other states (Article 16 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles)), ‘directing or controlling’ their actions (Article 17 of the ILC Articles) or ‘coercing’ them into international wrongs (Article 18 of the ILC Articles). In light of the facts around the ERP the most relevant appears to be ‘aiding and assisting’. A state is responsible for providing aid or assistance to another state if it does so with knowledge of the circumstances of the internationally wrongful act of that state.59 A ‘close connection’ is required between the actions of the states, and a causal link must exist between the states’ actions and the wrong.60 While well established as a matter of law,61 questions remain as to the precise content and import of these standards for human rights protection (as discussed further below).

Broader Obligations in Face of Serious Breach of Peremptory Norms It has been recognised that some wrongful acts engage the responsibility of the state towards the international community as a whole.62 Similarly, in

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certain circumstances, international law imposes broader positive obligations on all states to act to prevent and/or respond to certain very serious violations of international law. Where a wrong amounts to a serious breach of jus cogens norms, all states have obligations to ‘cooperate’ to bring such a situation to an end, not to recognise as lawful a situation created by a serious breach and not to render aid or assistance in maintaining that situation.63 While these obligations to protect individuals, absent any other link with the state, apply only to a small group of ‘peremptory norms’ and only in respect of gross, flagrant, systematic or organised violations of those norms, there is a strong case for this criteria having been met by the ERP. At least the prohibitions on torture and enforced disappearance and arguably also prolonged arbitrary detention are jus cogens norms, and appear to have been violated on a widespread and systematic basis. Individual Responsibility: International Criminal Law The ERP has been widely condemned as a ‘criminal’ enterprise,64 with some justification. Torture, enforced disappearance and transfer of protected persons are crimes under international criminal law.65 Where committed pursuant to a widespread and systematic plan or policy directed against a civilian population, they amount to crimes against humanity. While national standards vary, extraordinary renditions undoubtedly also violate multiple provisions of domestic criminal law. An individual may be responsible, in accordance with forms of responsibility recognised in international criminal law and practice,66 with directly committing crimes, individually, jointly or through another person,67 ordering, soliciting or inducing the commission of crimes.68 A broader range of individuals may be brought within the scope of criminal liability by acting as accessories to the crime, by for

example aiding, abetting and assisting.69 According to the Furundžija judgment from the International Criminal Tribunal for the former Yugoslavia (ICTY), aiding and assisting consists of rendering ‘practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime,’70 with ‘the knowledge that these acts assist in the commission of the offence’.71 Moreover, international criminal practice reflects that the individual may be responsible where a ‘group of persons’ acts ‘with a common purpose’72 or pursuant to a ‘joint criminal enterprise’.73 Under international criminal law, responsibility may be direct and indirect. Those in positions of power may be responsible for violations committed by subordinates where they had information on the basis of which they knew or should have known that the crime would be committed, and failed to take reasonable steps to prevent it.74 Renditions clearly constitute crimes under international law for which a range of individuals could be held to account according to different modes of liability. They could be held accountable in their own courts, in the courts of the many other states that have jurisdiction over such serious crimes75 or indeed before the International Criminal Court (ICC) so far as they involve nationals of states parties or occurred on the territory of a state party.76 Application: a Spiders Web of Responsibility and Accountability? Considered alongside this legal framework there is little doubt that the ERP represents the most serious violation of basic human rights (and, so far as applicable, IHL) for which the state driving the programme bears direct responsibility and individuals bear criminal responsibility. The following are among the scenarios that raise questions as to how the responsibility of a broader range of states should be understood.


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Arrest and Detention on the State’s Territory Where the territorial states’ agents carried out unlawful arrest, detention, interrogation/torture or ill treatment, as ‘proxy’ for the USA or otherwise, they straightforwardly have direct responsibility under human rights law. Examples of such operations may include the arrest of Boumediene and six others in Bosnia by Bosnian authorities and their transfer to USA custody. In other cases, foreign agents appear to have acted directly on the territory, as in Abu Omar’s arrest in Italy, leaving doubts as to the level of the Italian state’s knowledge, consent or involvement but considerable scope for speculation that the state at a minimum knew or should have known and failed to exercise ‘due diligence’ to prevent the violations. In the case of Polish, Romanian or Lithuanian secret prisons, while facts continue to come to light, it is difficult to conceive of such prisons existing without the consent and acquiescence, if not active cooperation, by the ‘host’ state. It is almost inconceivable that in these circumstances the relevant states would fail to meet the due diligence test on which responsibility under human rights law hinges. Keeping Them Airborne: Staging, Stopover and Logistical Support Numerous states are accused of providing logistical support to the ERP in the form of, for example, refuelling at airports and allowing use of airspace. Slightly more complex issues arise as regards the states’ responsibility under human rights treaties here. One is to what extent the violations can be said to have occurred in the state in question when a plane touches down temporarily. Can these be seen as on-going violations in respect of detention, disappearance or torture, part of which transpire on the territory being used for refuelling or other purposes and part elsewhere? Or, applying by analogy the rationale of non-refoulement – which does not require that the wrong arise on the state’s territory – does responsibility arise where the state takes or fails to

Renditions clearly constitute crimes under international law for which a range of individuals could be held to account according to different modes of liability. They could be held accountable in their own courts, in the courts of the many other states that have jurisdiction over such serious crimes or indeed before the International Criminal Court. take measures in respect of an individual present (however temporarily) on its territory in the knowledge that they will lead to violations elsewhere? As regards the often disputed degree of knowledge of states, if ‘wilful blindness’ is not to excuse the state from its positive obligations, to what extent is it required so far as possible to ensure that it did know, and then to act on that knowledge, for the protection of human rights? Even where the state is not itself in breach of its treaty obligations to protect those in its jurisdiction, it may yet be responsible for ‘aiding and assisting,’ if there is knowledge of the wrongfulness and concrete support for it. While aiding and assisting would not arise from providing moral support or political cover, it is likely to arise from concrete support such as providing airports and airspace, without which the ERP could not have operated as it did.

Transnational Intelligence Cooperation? The ERP is an enormous transnational intelligence operation. Important questions are increasingly being asked as to the responsibility of states in respect of certain forms of ‘intelligence cooperation.’77 1) Questioning ERP Detainees One of the most concrete links between a range of states and the ERP has been the alleged direct participation of foreign intelligence officers in the interrogation of ERP detainees. Examples have come to light

involving British, Canadian and Australian intelligence agents questioning nationals held by Pakistani or USA intelligence services during incommunicado detention in Pakistan or at Guantánamo.78 While consideration of all the circumstances would be necessary to determine the nature of the state’s wrongfulness, the United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism has described such involvement as ‘condoning’, ‘encouraging’ or ‘even support’ for unlawfulness which he describes as an ‘internationally wrongful act’.79 The Canadian Supreme Court found questioning Guantánamo detainees and sharing the information to contribute to their unlawful detention.80 Clearer still are cases, such as the Binyam Mohamed case, where the state has been found to have actively assisted in the setting up of interviews that provided the context for serious violations ‘in the knowledge of what had been reported to them in relation to his detention and treatment…’81

2) Provision of Intelligence A second form of cooperation that has been criticised in this context is the provision to foreign states of intelligence information, in some cases of dubious reliability, that has been relied upon to subject individuals to the ERP. While difficult to establish, such intelligence will often constitute a concrete form of support without which individuals would not be identified or traced. If accompanied by the requisite knowledge, it may amount to ‘aiding and assisting’ in the commission of an international wrong. One such case was that of Maher Arar where the Canadian inquiry criticised intelligence agents for handing over what transpired to be erroneous information to their USA counterparts, leading to Arar’s detention and torture.82 The Eminent Jurists Panel on Terrorism, Counter-Terrorism and


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Human Rights concluded that:

If intelligence and other agencies are systematically sharing information with countries and agencies with a known record of human rights violations it is difficult to resist the argument that States are complicit, wittingly or unwittingly, in the serious human rights violations committed by their partners in counter-terrorism.83 3) Receipt of Intelligence An issue of outstanding controversy is the legal responsibility of states for the receipt of intelligence information obtained through illegal means including the ERP. In some contexts, including in A and Others v Secretary of State for the Home Department (No. 2)84 before the UK House of Lords, a distinction has been suggested between the unlawful ‘admissibility’ of such information in legal proceedings, and the receipt and use of intelligence for other (operational) purposes. The latter has at times been dismissed – in the author’s view with some slight of hand – as legally unproblematic.85 However, the rationale for torture evidence being inadmissible in the A and Others case was that the state ‘cannot condemn torture while making use of the mute confession obtained through torture, because the effect is to encourage torture’.86 The same holds true of the receipt of intelligence for other purposes as for legal proceedings. As the Eminent Jurists Panel noted, states ‘become consumers of torture and implicitly legitimise, indeed encourage, such practices by creating a ‘market’ for the resultant intelligence’.87 And, as the United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism recently noted, the reliance on information even for operational purposes ‘inevitably implies the ‘recognition of lawfulness’ and therefore triggers the application of principles of states responsibility.’88 States may fall foul of their obligations to protect against torture, and/or may be responsible for aiding and assisting

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in it, by the systematic receipt of intelligence arising from the ERP. Elusive Truth, Justice and Accountability The obligations of thorough and independent investigation, accountability and reparation stand in stark contrast to state practice to date. However, developments suggest that the clamour for information, openness and justice is gathering pace. Public enquiries, such as the Canadian Maher Arar inquiry, while not sufficient in themselves, can constitute an important step in transparency and potentially towards accountability.89 Other states have as yet resisted the call for such an inquiry. No high level individual has been held to account for the ERP. No criminal proceedings have been launched in the USA and there is no commitment to do so.90 As discussed elsewhere in this edition, attempts beyond the USA have not been lacking, but results have been thwarted inter alia by the refusal of the USA to cooperate.91 The convictions in the Abu Omar case in 2009, despite the dubious validity of trials in absentia, are a reminder of the determined efforts towards accountability.92 Likewise, the initiation of criminal investigations in certain other states, including the UK and Canada,93 mirrors developments in Spain seeking the prosecution of high level USA officials, including the Attorney General, for authorising torture, may signal momentum towards accountability.94 Woefully neglected to date are the obligations in respect of remedy and reparation. With the exception of the Arar inquiry, there has been little recognition of the need for meaningful reparations by states. Where individuals have emerged from the programme and themselves sought redress through USA courts, they have had their proceedings wholly vacated on the basis of ‘state secrets’.95 While the USA approach may be radical, it is not without company as other states have been criticised for the over-

reliance on state secrecy or public interest immunity certificates.96 Allegations, express and implied, suggest that security concerns are being manipulated to evade accountability97 and protect governments ‘from criticism, embarrassment and-most importantlyliability’.98 Conclusions and Challenges in the Implementation of the Legal Framework The ERP epitomises how far certain states have stooped and how far others have been willing to accommodate, support or turn a blind eye, without constraint by the rule of law. Some of the challenges that this poses for the future are noted by way of conclusion. Most obviously, extraordinary rendition needs to be unequivocally rejected and transfer of persons brought back within the framework of rule of law, which judicial and democratic oversight and basic due process guarantees in respect of transfer. Yet there is, up to now, no clear repudiation of the ERP from within the USA administration. While there are positive developments in the rejection of torture, there has been no clear acknowledgement of the importance of removing the arbitrariness that underpins and epitomises the ERP.99 The ERP stems from the central, multifaceted role for intelligence agencies in the ‘war on terror’, and provides chilling illustration of the need for greater transparency and accountability in respect of the operation of intelligence communities. Likewise, it raises important questions about responsible international cooperation and the legal obligations of the full range of states that assisted or supported the ERP. Increased attention by a range of actors, public enquiries and judicial proceedings on questions such as the nature of aiding and assisting in the commission of human rights violations may serve to clarify legal standards and enhance rights protection.


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There is an urgent need for a principled focus on the right to reparations for the many people whose lives have been devastated by the ERP. The far-reaching invocation of national security or state secrets has underscored the importance of judicial oversight. Finally, as the USA has advocated in other situations from Latin America to the Balkans and beyond, a process of truth and justice, representing a break with the past and the commitment of non-repetition, may prove critical to restore the rule of law. Accountability norms have been developed through years of experience in addressing, among other things, enforced disappearances and torture. Whether these can be brought to bear to ensure a measure of accountability in relation to the ERP may prove the real test of the rule of law and whether states are ready and willing to move on from the worst excesses of the ‘war on terror’.

Helen Duffy is Litigation Director at INTERIGHTS.

A fuller version of this article appears in Duffy, H., The 'War on Terror' and the Framework of International Law, 2nd e di tion, Cambri dge Univ ersity Press, forthcoming 2011.

1 Temporary Committee on the Alleged Use of European Countries by the CIA for the Transport and Illegal Detention of Prisoners, Eur. Parl. doc. PE 380.593v04-00 4 (2006). 2 Grey, S. and Buncombe, A., ‘Britain accused over CIA's secret torture flights’, The Independent, 10 February 2005; Marty, D., Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states, doc. 10957, Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 7 June 2006, (‘Marty I’) and Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, doc. 11302 rev., Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 11 June 2007 (‘Marty II’). 3 Ibid, Marty I. at p. 6. As discussed further below, state support included direct involvement in the arrest, detention and transfer, housing secret detention centres on states’ territory, ‘staging’ or ‘stopover’ of aircraft, participation in interrogations, provision and receipt of intelligence information. The programme also appears to have a range of private associates, e.g. enabling private aircraft to be used for rendition flights, see Mohamed v Jeppesen Dataplan, Inc., No. C 07-2798 (N.D. Cal. 30 May 2007), dismissed on state secrets grounds.

4 Marty I, supra note 2, p. 1. 5 S.C. Res. 138, PP1-3, UN doc. S/4349 (23 June 1960). 6 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events to Maher Arar: Analysis and Relating Recommendations, Ottawa, Minister of Public Works and Government Services, 2006. 7 Article 36 of the Vienna Convention on Consular Relations, 24 April 1963, Abductions in another state may also be out of line with the spirit of bilateral or multilateral extradition arrangements. 8 Attorney General of the Government of Israel v Eichmann (1961) 36 ILR 5, para. 70. In this case, the Security Council Resolution requested Israel ‘to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law’. 9 ‘Renditions Save Lives’: Condoleezza Rice’s Full Statement, The Times Online, 5 December 2005, available at <http://www.timesonline.co.uk/tol/news/ world/us_and_americas/article745995.ece>. 10 See e.g. report of UK admitting that CIA rendition flights landed on its territory but denying that it knew or consented, available at <http://news.bbc.co.uk/go/ pr/fr/-/1/hi/uk_politics/7256587.stm>. 11 In its 2007 Follow Up Country Report to the UN Human Rights Committee, UN doc. CCPR/C/ USA/CO/3/Rev.1/Add.1 (2008) the USA claimed: ‘The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant, is the applicable legal framework governing these detentions.’ 12 Armed conflict is defined in Prosecutor v Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, 2 October 1995, para. 70. See also International Criminal Court Statute. On armed conflict with Al Qaida see, for e.g., Duffy, H., The ‘War on Terror and the Framework of International Law, Cambridge University Press, 2005, chapter 6. 13 Article 49 of the Fourth Geneva Convention on the Protection of Civilians. Absent the need for evacuation of an area ‘if the security of the population or imperative military reasons so demand’, the ICRC Commentary describes this as an absolute rule that ‘allows of no exceptions.’ 14 Article 45(4) of the Fourth Geneva Convention. 15 Article 12(2) of the Third Geneva Convention. Repatriation of prisoners of war at the end of hostilities (Article 118 of the Third Geneva Convention) is subject to ‘the general principles of international law for the protection of the human being.’ See Droege, C., ‘Transfers of detainees – legal framework, non-refoulement and contemporary challenges’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 669701. 16 See Pejic, J., ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375-391. 17 ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody, February 2007, p. 27. 18 Article 1 of the Geneva Conventions and Additional Protocol 1. 19 Arguing that the ICCPR does not apply extraterritorially in respect of programme (or of Guantánamo, Afghanistan or Iraq), see Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights, 21 October 2005, at <http://www.state.gov/g/drl/rls/55504.htm>, Annex I: Territorial Application of the ICCPR. For the Committee’s response see UN Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: United States of America, UN doc. CCPR/C/USA/CO/3/Rev.1 (18 December 2006). 20 For a discussion of the issue see e.g. the third party

intervention in Al-Skeini and Ors v United Kingdom before the ECtHR submitted by INTERIGHTS and others, available at <www.interights.org/al-skeini>. 21 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, referring to Human Rights Committee decisions on abductions e.g. Lopez Burgos v Uruguay (Comm. No. 52/1979), Views of 29 July 1981, UN doc. CCPR/C/13/D/52/1979. 22 Bankovic et al. v Belgium et al., Appl. No. 52207/99, Eur. Ct. H.R. (2001), 41 I.L.M. 517; NATO bombardment was held by the ECtHR not to give rise to ECHR obligations due to lack of territorial control. 23 See Al-Skeini v Secretary of State for Defence [2007] UKHL 26, 13 June; in Duffy, H., ‘Human Rights Litigation and the ‘War on Terror’’ International Review of the Red Cross, Vol. 90, No. 871, September 2008, p. 573. 24 This was accepted by the UK in both of the cases referred to above, Bankovic before the ECtHR and in AlSkeini before UK courts. 25 See the ECtHR’s admissibility decision in AlSaadoon and Mufdhi v United Kingdom, Appl. No. 61498/08, 30 June 2009, concerning handover of individual from UK to Iraqi custody in Iraq. 26 See Vandova, V., ‘Protection of non-citizens against removal under international human rights law’, in Edwards and Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs, Cambridge University Press, 2010, chapter 14. 27 Soering v United Kingdom, Appl. No. 14038/88, 7 July 1989, para. 113. 28 Saadi v Italy, Appl. No. 37201/06, 28 February 2008, and Chahal v United Kingdom, Appl. No. 22414/93, 15 November 1996; Agiza v Sweden (2005, Communication No. 233/2003, UN doc. CAT/C/34/D/233/2003, para. 13.8); Aemei v Switzerland (1997, Communication No. 34/1995, UN doc. CAT/C/18/D/34/1995, para. 9.8); M.B.B. v Sweden (1999, Communication No. 104/1998, UN doc. CAT/C/22/D/104/1998 para. 6.4); Arana v France (2000, Communication No. 63/1997, UN doc. CAT/C/23/D/63/1997, para. 11.5) and CAT’s Concluding Observations on Germany (2004). 29 Agiza v Sweden (ibid, para. 13.4); Report of Special Rapporteur on Torture to the General Assembly, (2004, E/CN.4/2005/62, para. 40). 30 See United States Written Response to Questions Asked by the Committee Against Torture, 28 April 2006, available at <http://www.state.gov/g/drl/rls/68 554.htm>; see also US Second and Third Reports to the Human Rights Committee, supra note 19, denying a non-refoulement obligation under the ICCPR. 31 See e.g. Agiza v Sweden, supra note 28, Report of the Committee against Torture, UN GAOR, 60th Sess., Supp. No. 44, para. 13.4, at 227, UN doc. A/60/44, Annex VIII (2003). 32 Article 9(4) of the ICCPR. Controversy exists over whether the review needs to be judicial as opposed to neutral, notably in non-armed conflict situations. At a minimum outside of conflict situations, where the IHL principles influence the applicable framework, review should be judicial. 33 E.g. Principles 16 and 19 of the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1998); Rule 37 of the Standard Minimum Rules for the Treatment of Prisoners (1977). 34 See e.g. Agiza v Sweden, supra note 28, para. 13.7. 35 Ibid, para 138. 36 See e.g. Article 1 of Protocol No. 7 to the ECHR and Articles 2, 9, 10, 12 and 13 of the ICCPR on expulsion of non citizens. Exceptions for ‘compelling reasons of national security’ raise questions as to how they would be applied in practice, by contrast with the non-refoulement related procedural guarantees above that apply irrespective of the national security risk. See e.g. Saadi, supra note 28. 37 Complaint para. 60, at 18 Arar v Ashcroft, C.A. No.


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04-CV-249-DGT-VVP (E.D.N.Y. 2004). 38 Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, Human Rights Council, Report to the General Assembly on the First Session of the Human Rights Council, at 32, UN doc. A/HRC/1/L.10 (2006). 39 See Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 26 January 2010. 40 Article 7(1) of the ICC Statute, 17 July 1998, UN doc. A/CONF. 183/9. 41 Article 2(3)(a) of the ICCPR, Article 13 of the ECHR.

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Judgments and Decisions 1998-VI, para. 22, Z and Others v United Kingdom [GC], Appl. No. 29392/95, para. 73, ECHR 2001 V, Velasquez Rodriguez v Honduras, supra note 42, paras. 172-175 and UN Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 19 (Eleventh session, 1992); Violence Against Women, A/47/38 (1992) 5, para. 9. 56 Osman v United Kingdom, supra note 55, para. 116; see also Kilic v Turkey, Appl. No. 34687/96, 5 December 2000; Kaya v Turkey, supra note 47. 57 See Isayeva and Others v Russia, supra note 48, paras. 208-213 and Menesheva v Russia, Appl. No. 59261/00, 9 March 2006, para. 64. 58 Mohammed Alzery v Sweden, CCPR/C/88/D/1416 /2005, UN Human Rights Committee (HRC), 10 November 2006, para 11.6 (emphasis added). 59 See Article 16 of the ILC Articles, supra note 54, declaring also that the act would be internationally wrongful if committed by the accessory state.

42 See e.g. Velasquez Rodriguez v Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, paras. 164-65, 172 (1988). On the nature of reparation see e.g. UN Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law, Commission on Human Rights Resolution E/CN.4/RES/2005/35, 19 April 2005 and General Assembly Resolution A/RES/60/147, 16 December 2005. See also Plan de Sánchez Massacre v Guatemala (Merits) IACtHR Series C 105 (2004); 13 IHRR 986 (2006).

61 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), International Court of Justice, Case 91, 26 February 2007, para. 420. 62 Commentary on ILC Articles, supra note 54, Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3, at p. 32.

43 It has particular implications where one of the most fundamental rights is in issue or there has been a particularly serious violation, Chahal v United Kingdom, supra note 28, para. 150.

63 Reflected in Articles 40 and 41 of the ILC Articles, supra note 54, and in the jurisprudence of the International Court of Justice and other courts and tribunals.

44 Restitution includes liberty, restoring family life and citizenship, return to one’s place of residence, restoration of employment and return of property. See Principle 19 of the UN Basic Principles, supra note 33.

64 Supra note 1.

45 E & Ors v United Kingdom, Appl. No. 33218/96, para. 110; Keenan v United Kingdom, Appl. No. 27229/95, 3 April 2001, para. 130. 46 Concluding Observations on the US, 2006, CCPR/C/USA/CO/3. 47 Keenan v United Kingdom, supra note 45, para. 132. Article 13 has been held to imply obligations to investigate in, inter alia, cases of violation of the right to life (Kaya v Turkey, Appl. No. 22729/93, 19 February 1998, Reports 1998-1), torture and inhuman and degrading treatment (Aksoy v Turkey, Appl. No. 21987/93, 18 December 1996, Reports 1996-VI) and disappearance (Orhan v Turkey, Appl. No. 25656/94, 18 June 2002). 48 Isayeva, Yusupova and Bazayeva v Russia, Appl. Nos. 57947/00, 57948/00 and 57949/00, 24 February 2005, at paras. 209–213; see also Alston, P., Civil and Political Rights, including questions of disappearances and summary executions, Report of the Special Rapporteur, 8 March 2006, UN doc. E/CN.4/2006/53, 1125–26 (also on obligations under IHL). 49 Weissbrodt, D., and Reinquist, A., ‘Methods of the “War on Terror”’, 16 Minnesota Journal of International Law 371, Summer 2007, p. 239. 50 El-Masri is a German citizen who was detained from 31 December 2003 to 28 May 2004 in Macedonia and Afghanistan by the CIA. 51 Kurt v Turkey, Appl. No. 24276/94, 25 May 1998, Reports 1998-III, Bazorkina v Russia, Appl. No. 69481/01, 27 July 2006. 52 Abu Omar, an Egyptian, was living in Italy when he was abducted and detained in Egypt by the CIA. 53 Article 14 of the Universal Declaration of Human Rights. 54 International Law Commission Commentary to Article 1 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles), p. 67. 55 Osman v United Kingdom, Appl. No. 23452/94, para. 116, 28 October 1998. See also A v United Kingdom, Appl. No. 25599/94, 23 September 1998, Reports of

60 Except for coercion, it must also be an obligation which is binding on both the aider and the state aided.

65 Article 7(1)(i) of the ICC Statute, International Convention for the Protection of All Persons from Enforced Disappearance and grave breaches of IHL. 66 See Article 7(1) Statute of the ICTY, Article 6(1) Statute of the International Criminal Tribunal for Rwanda and Article 25 of the ICC Statute. Formulations vary somewhat between the tribunals’ statutes and the ICC Statute. 67 Article 25(3)(a) of the ICC Statute. 68 Article 25(3)(b) of the ICC Statute. 69 Article 25(3)(c) of the ICC Statute. 70 Prosecutor v Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, para. 193 n. 217 (10 December 1998), reprinted in 38 I.L.M. 317, para. 193 n. 217 (1999). 71 Ibid, para. 249. 72 Article 25(3)(d) of the ICC Statute. 73 See ‘joint criminal enterprise’ doctrine as applied by the ICTY e.g. Tadic Appeal Judgment, supra note 12, para. 220. 74 See e.g. Prosecutor v Dragomir Milosevic, Appeals Judgment, IT-98-29/1-A, 12 November 2009. 75 This is particularly so in light of widespread incorporation of the ICC Statute and amendments to ensure that states can themselves prosecute all crimes covered by the ICC and invoke the ‘complementarity’ provisions of the ICC Statute to avoid unwelcome ICC prosecutions. 76 Article 12 of the ICC Statute. 77 See generally Scheinin, M., Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/10/3, 4 February 2009 and Assessing Damage, Urging Action, Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, International Commission of Jurists, 2009. 78 The Special Rapporteur’s 2009 report, ibid, p. 19, fn. 63, also notes that ‘Many countries (Bahrain, Canada, China, France, Germany, Italy, Jordan, Libya, Morocco, Pakistan, Saudi Arabia, Spain, Tajikistan, Tunisia, Turkey, United Kingdom, Uzbekistan) have sent interrogators to Guantanamo Bay.’ 79 The Special Rapporteur’s 2009 report, ibid, p. 20.

80 See Supreme Court of Canada decision of 29 January 2010, Canada (Prime Minister) v Khadr, 2010 SCC 3: ‘It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests,’ para. 21. The Court concluded that the Canadian authorities had ‘actively participated in a process contrary to Canada’s international human rights obligations.’ 81 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin), para. 88(ii), at p. 36. 82 Eminent Jurists Panel report, supra note 77, p. 84. 83 Eminent Jurists Panel report, ibid, p. 85; see also Special Rapporteur’s report, supra note 77, p. 20. 84 A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71. 85 See discussion of the A and Others case in Duffy, H., ‘The War on Terror and Human Rights Litigation’, International Review of the Red Cross, Vol. 90, No. 871, 2008, pp.573-597. 86 A v SSHD (No 2), supra note 84, para. 34 citing McNally JA. 87 Eminent Jurists Panel report, supra note 77, p. 85. 88 The Special Rapporteur’s 2009 report, supra note 77, referring to Articles 40 and 41 supra note 63. See also the Eminent Jurists Panel report, supra note 77. 89 It was critical in exposing wrongs and proffering wide-ranging recommendations related to reform of intelligence agencies and transnational cooperation, and accountability of those responsible. 90 See e.g. ‘Torture claims shadow U.S. war on terror’, available at <http://www.cnn.com/2009/POLITICS/04 /03/pm.torture/>, 3 April 2009. 91 See Bhat, D., ‘Italian Judge Orders First 'Rendition' Trial of CIA Agents’, Times Online, 16 February 2007, available at <http://www.timesonline.co.uk/tol/news/ world/europe/article1395637.ece>; ‘Switzerland Approves Probe of CIA Flight’, Guardian Unlimited, 15 February 2007. See also Sadat, L.N, ‘Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law’, 37 Case W. Res. J. Int'l L. 309, 320 (2006) and Sadat, L.N., ‘Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror’, 75 Geo. Wash. L. Rev. 1200, 1211-15 (2007). 92 See ‘Historic Omar Trial ends in Convictions of CIA’, available at <http://legalift.wordpress.com/2009/11/05>. 93 Sullivan, K., ‘Role of British Intelligence in Alleged Torture To Be Examined’, Washington Post Foreign Service, 27 March 2009, available at <http://www.washingtonpost.com/wp-dyn/content/article/2009/03/26/ AR2009032601335.html>. 94 ‘Spanish judge to hear torture case against six Bush officials’, The Observer, 29 March 2009, available at <http://www.guardian.co.uk/world/2009/mar/29/gua ntanamo-bay-torture-inquiry>. 95 See El-Masri case, for e.g., in Duffy, supra note 85. 96 Marty I, supra note 2, p. 1, summary, refers to USA, Poland, Romania, Macedonia, Italy and Germany and the Russian Federation in the Northern Caucasus as having used national security or state secrecy to obstruct judicial or parliamentary scrutiny aimed at ascertaining responsibility for renditions. Also Special Rapporteur’s 2009 report, supra note 77, p. 21, referring to the use of such provisions in Germany, Italy, Poland Romania, the former Yugoslav Republic of Macedonia, the UK and the USA to conceal illegal acts. 97 Marty I, supra note 2, para. 80 on USA policy as having ‘intentionally created a framework enabling it to evade all accountability’…[and]…‘insulating’ the CIA’s activities…’ 98 See also e.g. Special Rapporteur’s 2009 report, supra note 77, p. 21. 99 See ‘Obama preserves renditions as counter-terrorism tool’, Los Angeles Times, 1 February 2009, available at <http://articles.latimes.com/2009/feb/01/nation/narendition1>.


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Blindfolded, Handcuffed and Carted Off: An Appraisal of Unlawful Transfers as a Response to Security Threats in Africa

Judy Oder

Unlawful transfers refer to the handover of persons in custody between states which do not observe legal processes envisaged in legal transfers. These kind of removals have, since the 11 September 2001 attacks, been adopted by states in response to international terrorism and national security threats. They include abductions and extraordinary renditions – when terror suspects are transferred for interrogation by security officials in other countries where they have no legal protection or rights in practice. Unlawful transfers do not follow the procedures envisaged for deportations, removals, expulsions, extraditions and the transfer of prisoners. Summary extraditions which may, on the surface, seem legal, but generally flout due process guarantees also fall under this category. This piece looks at the practice of unlawful transfers in Africa. The first part considers specific examples of this practice and assesses legal challenges brought on behalf of the detainees before national courts. The next section looks at states’ regional and international obligations in respect of these removals and considers legal alternatives to unlawful transfers. The Practice of Illegal Transfers and Petitions Filed Before African Courts Although there were incidences of illegal transfers in Africa before the 11 September 2001 attacks, the practice of transferring persons outside the ambit of existing legal frameworks escalated after these attacks.1 The transfer of persons outside legal processes illustrates a worrying trend that some African states adopted in their overzealous alliance with the USA Government in response to alleged terror threats. Some of the reported

transfers and the violations arising from them are considered below.

The Horn of Africa Extraordinary Renditions: From Kenya to Somalia and Ethiopia While most unlawful transfers have been of individuals or a handful of people, several people were implicated in the 2007 wave of counter-terrorism measures that took place in the Horn of Africa. At least 140 men, women and children fleeing the conflict in Somalia were arrested by Kenyan authorities between 30 December 2006 and February 2007 as they tried to enter Kenya. Most detainees were held for weeks without charge and some were reportedly tortured or otherwise illtreated. Some were allegedly beaten by the Kenyan police and forced to undress before being photographed. The detainees did not have access to their relatives or to lawyers. Some of the detainees were questioned – their interrogators included USA agents. They were also denied access to the United Nations Refugee Agency and to asylum procedures.2 In total, more than 100 terror suspects are thought to have been arrested in Somalia and Kenya and transferred to Ethiopia to face interrogation by USA officials. The released detainees corroborated evidence that they were tortured on numerous occasions to confess to either being ‘terrorists’ or to consorting and associating with ‘known terrorists’. They suffered both psychological torture and physical abuse, including severe beatings by guards which resulted in many ending up badly wounded due to violent interrogation techniques.3 Prisoners were subject to secret

military tribunals where they were not shown evidence against them, were not provided with lawyers or an opportunity to present a defence, and were told a determination would be made as to whether or not they were ‘illegal combatants’.4 Prisoners also reported being held in chicken-wire cages and being abused. They were subjected to repeated visits by foreign security and intelligence agents, notably American, British and Swedish personnel.5 At least 13 out of the 81 people rendered to Ethiopia were women. Many had their children with them and some were pregnant. Two reportedly gave birth in custody in Ethiopia. Many of these women were held solely because they are family members of suspected members of al Qaida or of the Council of Somali Islamic Courts.6 By May 2007, interrogations by foreign intelligence officials had reportedly ended. Within a few months, almost all of the detained foreign nationals had been sent home.7 In October 2008 a further ten rendition victims known to be in Ethiopian jails were released to Kenya. The whereabouts of 22 others remains unknown.8 Legal challenges were filed before the Kenyan courts in respect of the detainees. The Muslim Human Rights Forum (MHRF) filed 34 habeas corpus applications in the High Court in Nairobi, while another six were filed in Mombasa by families of Kenyan detainees. However, apart from Said Sheikh Abdullahi and Sheikh Mohamed Salat (both Kenyans) and Sheikh Abubakar Omar Adan and his son Omar Abubakar Omar (both Somalis), who were taken to court, no one else was formally charged in Kenya.9


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The High Court in Mombasa gave orders for the production of six prisoners. These orders were defied by the State which released only Salmin Mohamed Khamis before the Court’s deadline elapsed. Two others, Fatuma Ahmed Abdurahman and her four year old daughter Hafsah Swaleh Ali were released six days later than the date they should have been produced in Court following a successful campaign by human rights groups focusing on the child. Said Khamis Mohamed and Salim Awadh Salim were rendered to Mogadishu on 27 January 2007 while the matter was still in Court. MHRF initiated contempt of court proceedings against the Commissioner of Police and commandant of the AntiTerrorism Police Unit, which were thrown out by the Court on the grounds that the Commissioner had not been served with these summons.10 More recently, Amir Meshal, an American who was captured by Kenyan forces in January 2007, filed suit in the USA District Court in Washington on 10 November 2009, arguing that FBI agents allegedly involved in his interrogation and transfer to other countries violated his constitutional rights. He also alleged that he was threatened with torture and death. He is seeking damages for the practice of rendition.11

The Gambia Experience On 2 November 2002, Abdullah el Janoudi (a British citizen) was arrested alongside Bisher al-Rawi and Jamil alBanna (both British residents) at Gatwick airport in London, UK. They had intended to travel to Gambia where they hoped to establish a business venture for a mobile peanutoil processing factory. The three men were questioned for two days on suspicion of links with terrorist groups, as well as on suspicion of carrying an explosive device, which turned out to be a normal battery charger. They were all released without charge.12 On 8 November 2002, the three men

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left the UK for Banjul, the Gambian capital, and were arrested on arrival, together with Bisher’s brother, Wahab al-Rawi, who had come to meet them at the airport. After an initial period of questioning by the Gambian National Intelligence Agency (NIA), they were then questioned by USA investigators. During this time, the men were held in several undisclosed locations in Banjul. At least one of the men was allegedly threatened by USA investigators who told him that unless he cooperated he would be handed over to the Gambian police who would beat and rape him. One of the men sustained injuries from what USA investigators later described as a ‘scuffle with Gambian guards’.13 Four days after their arrest in Banjul, the four men were taken to a secret location in the suburbs. Separated from one another, Wahab al-Rawi said he was accused by the USA officers of coming to Gambia to start a terrorist training camp. Wahab al-Rawi and el Janoudi were released without charge in December 2002 and returned to the UK. As neither Bisher al-Rawi nor al-Banna had British citizenship they were flown to Bagram air base in Afghanistan before being transferred to Guantánamo, where they were held for three years. Intelligence reports made by MI5 support Wahab al-Rawi’s testimony and indicate the fabricated nature of the case against the four men.14 The Gambian officials made it clear to the four men that the Americans were in charge.15 Bisher al-Rawi was released from Guantánamo in 30 March 2007. Jamil al-Banna was released from Guantánamo on 19 December 2007.

The Unlawful Transfer of Laid Saidi: Tanzania to Malawi and Unknown Countries Laid Saidi, an Algerian who lived and worked in Tanzania, was arrested and expelled through the border between Tanzania and Malawi.16

According to Saidi, after being held for a week in a prison in the mountains of Malawi, a group of people arrived in a sport utility vehicle: a gray-haired Caucasian woman and five men dressed in black wearing black masks revealing only their eyes. His Malawian captors blindfolded him, and his clothes were cut away and photographs taken. They covered his eyes with cotton and tape, inserted a plug in his anus and put a disposable diaper on him before dressing him. His ears were covered and his hands and feet shackled. He was driven to an airplane where they put him on the floor. It was an all night journey to his next destination – Afghanistan.17 On arrival he was detained in inhumane conditions and chained to the wall. At the prison where he was first taken to in Afghanistan, there was deafening Western music being played and the lights were rarely turned on. He was left chained for five days without clothes or food. He was beaten, spat on and had cold water thrown on him. He was given dirty water to drink. In addition he was told by an interrogator that he would die at this facility. His legs and feet became painfully swollen because he was forced to stand for so long with his wrists chained to the ceiling. According to Saidi the cells at this facility were filthy and not even suitable for animals. He was released eighteen months after his arrest; no explanation was ever given to him for the reasons for his arrest.18

Rendered From Tanzania to Djibouti and Beyond: Mohammed Abdullah Saleh al-Asad Mohammed Abdullah Saleh al-Asad is a Yemeni national who had lived in Tanzania for 18 years; he ran a small business dealing in tires, tubes, and car batteries. On the night of 26 December 2003, Tanzanian officials came to Mohammed al-Asad’s house and arrested him. He was hooded, cuffed and taken to a flat where he was interrogated about his passport. He was placed on a plane and he estimates


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that he spent a few hours on this plane before being detained for two weeks. Confused and scared, he did not know where he was being taken, but one of his guards told him that he was in Djibouti and there was a photograph of President Guelleh on the wall of the detention facility.19 Sources from Tanzania also indicate that he was flown to Djibouti on a small USA plane.20 In habeas proceedings filed by alAsad’s father before the courts in Tanzania, Tanzania acknowledged that he was sent to Djibouti and the only issue of consideration before the Court was whether the immigration authorities were still holding him or whether he had been deported to Djibouti. The High Court found that there was no prima facie evidence to suggest that al-Asad was in the custody of the Director of Immigration Services or even that he was within the limits of mainland Tanzania. For this reason the Court held that it could not order a direction of habeas corpus.21 At the end of the two weeks he was hooded and cuffed again and placed on what he thought was a larger plane. He was flown for several hours, stopped for a short period of time, and then flown for several additional hours. He felt that the weather was much cooler at his destination, which is believed to be Afghanistan. He was held in a cell for approximately two weeks, and was then transferred again to a facility at which he was held for approximately three months in a cell. He was only irregularly taken to be interrogated. His interrogators, as well as the questions, were the same.22 In April 2004, al-Asad was put on yet another flight and then transferred to a helicopter and taken to a new USA run facility, believed to be in Eastern Europe. He was subjected to a regime of interrogation and sensory deprivation: constant white noise was played through loudspeakers, artificial light was kept on 24 hours a day and he was allowed a shower once a week.23

On 5 May 2005, al-Asad was taken from the secret detention facility and returned to Yemen, where he was imprisoned in Yemeni prisons in Sana’a and al-Ghaydah. When Amnesty International asked Yemeni officials about the status of Mohammed al-Asad and two others they replied that they had been given explicit instructions on the continued detention of the men, and that they were ‘awaiting files’ from the USA so that they could try them.24 He was released in March 2006. Al-Asad still awaits a remedy for the violations committed against him due to his extraordinary rendition and secret detention.

Rendered from South Africa to Pakistan: Khalid Mehmood Rashid Pakistani national, Khalid Mehmood Rashid and his house mate, Indianborn Moulana Mohammed Ali Jeebhai, were abducted by heavily armed police and Home Affairs officials on 31 October 2005 and locked up at an unknown place thought to be in Cullinan outside Pretoria, South Africa. This was only confirmed three months afterwards when their names were found in the cell register of Cullinan police station.25 On 2 November 2005 Rashid was handed a notice of deportation because he was an illegal immigrant. He was informed of his right to appeal against the decision to deport him and to have his detention confirmed by a warrant of the Court. He indicated his wish to be deported at the first reasonable opportunity, whilst remaining in custody. He also signified that he did not wish to appeal the decision or have his detention confirmed by a warrant of the court.26 On 6 November 2005 Rashid was handed over to five Pakistani law enforcement officials at Waterkloof Military Airbase in Pretoria from where he was flown to Islamabad Airport in Pakistan and held in custody. His removal from the country was apparently effected secretly – without his relatives or friends having

been apprised of what had happened to him.27 Rashid was released from the custody of Pakistani authorities in December 2007 and later filed a petition challenging his detention and removal. This petition progressed through the South African court system and on 31 March 2009, the Supreme Court of Appeal of South Africa declared the detention of Khalid Mahmood Rashid at Cullinan Police Station and his subsequent removal and deportation unlawful.28 In its analysis, the Supreme Court of Appeal observed that for a deportation to be carried out lawfully, the action or procedure used to facilitate an illegal foreigner’s removal from the country must be done in terms of the Immigration Act.29 The Court opined that:

a decision to deport someone often carries far-reaching consequences – it concerns that person’s livelihood, security, freedom and sometimes, his or her very survival. This is why immigration laws, often harsh and severe in their operation, contain safeguards to ensure that people who are alleged to fall within their reach are dealt with properly and in a manner that protects their human rights.30 According to the Court the authorities bore the onus to adduce sufficient facts to justify their actions.31 The Court stressed that the Act and regulations contain safeguards to protect that person’s rights which must be respected and that illegal foreigners are beneficiaries of certain rights under the Constitution, namely the right to freedom and security of the person and the rights of detainees.32 The Court found that the fact that Rashid was detained at the Cullinan police station without a warrant and then removed from this facility, also without a warrant, meant that both his detention there and his deportation were unlawful.33 It concluded that Rashid’s arrest was lawful but his subsequent detention


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and deportation were not because they were carried out without compliance with the peremptory procedures prescribed by the Immigration Act.34

From Pakistan to Morocco: Abou Al Kassim Britel Abou Al Kassim Britel was initially apprehended and detained in Pakistan by Pakistani authorities on alleged immigration violations in February 2002. After a period of detention and interrogation there, he was handed over to USA officials.35 In May 2002, USA officials stripped and beat Britel before dressing him in a diaper and overalls, shackling and blindfolding him and flying him to Morocco for detention and interrogation. Once in Morocco, USA officials handed him over to Moroccan intelligence officials who detained him incommunicado at the Temara detention centre, where he was interrogated, beaten, deprived of sleep and food and threatened with sexual torture.36 After being released from custody by Moroccan authorities in February 2003, Britel was again arrested and detained in May 2003 as he attempted to leave Morocco for his home in Italy. While detained incommunicado in the detention facility where he had been brutally tortured only months earlier, Britel falsely confessed, under torture, to his involvement in terrorism. He was later tried and convicted by a Moroccan court on terrorism-related charges and is currently serving a nineyear sentence in a Moroccan prison.37 The conviction was obtained through torture; no evidence had been gathered in Italy on which to charge Britel. In Morocco, he was refused access to his lawyer prior to trial so was unable to provide him with instructions. He was also refused access to the Italian Embassy and no prosecution witnesses were produced for cross-examination. No witnesses or documentary evidence were allowed to be presented on behalf of the defence.38 In 2006, an Italian investigating judge

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dismissed a six-year long investigation into Britel's alleged involvement in terrorism after the judge found a complete lack of evidence linking him with any terrorist-related or criminal activity.39 The Regional and International Legal Framework Efforts to respond to the impact of counter terrorism on human rights in Africa have been limited. Developments have, to a large extent, focused on combating terrorism and there has not been much debate, at the regional level, of the impact of these efforts on human rights.40 The African Commission on Human and Peoples’ Rights adopted a Resolution on the Protection of Human Rights and the Rule of Law in the Fight Against Terrorism in which it emphasised that measures taken to combat terrorism must fully comply with states’ obligations under the African Charter on Human and Peoples’ Rights.41 As a consequence, each counter-terrorism measure involving removal or transfer will have to comply with the obligations of states to observe the right to life,42 freedom from torture and inhuman and degrading treatment,43 the right to liberty and security of the person44 and due process guarantees.45 The Convention Governing the Specific Aspects of Refugee Problems in Africa protects individuals from rejection at the frontier, return or expulsion, which would compel them to return to or remain in a territory where their life, physical integrity or liberty would be threatened.46 Efforts to respond to the impact of counter terrorism on human rights in Africa have been limited. Developments have, to a large extent, focused on combating terrorism and there has not been much debate, at the regional level, of the impact of these efforts on human rights.

At the international level, the United Nations Human Rights Committee in General Comment No. 31 states that the Article 2 obligation of the International Covenant on Civil and Political Rights (ICCPR) requires states to respect and ensure rights for persons in their territory and all persons in their control and ‘entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm…either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.47 The protections against removal are applicable to all human beings irrespective of the particular status of the individual in question and regardless of the particular circumstances of the individual.48 The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment49 and the International Convention for the Protection of all Persons from Enforced Disappearance50 proscribe removal where the individual in question would face a risk of violation of a particular right in the state they are transferred to. Some human rights treaties contain provisions formulated in a manner similar to the prohibition of refoulement in refugee law, based on a risk of persecution on particular grounds.51

Torture and Non-Refoulement Under international human rights law, transfers are proscribed where there exists a risk of torture or cruel, inhuman or degrading treatment or punishment in the receiving state. According to the United Nations Special Rapporteur on Torture:

[T]he principle of non-refoulement is an inherent part of the overall absolute and imperative nature of the prohibition of torture and other forms of ill-treatment’ which imposes on


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states the ‘essential responsibility…to prevent acts of torture and other forms of ill-treatment being committed, not only against persons within any territory under their own jurisdiction…but also to prevent such acts by not bringing persons under the control of other states if there are substantial grounds for believing that they would be in danger of being subjected to torture.52 The prohibition of torture or illtreatment also only applies to cases where the individual would be removed to another country where such a risk existed.53

Violations of the Right to Life A second, clearly established, prohibition of removal under international human rights law concerns cases wherever the individual faces a risk of violation of his or her right to life in the state of the destination.54 This principle was affirmed by the South African Constitutional Court in a case where it found that in handing the applicant, Mohamed, over to the USA without securing an assurance that he would not be sentenced to death, the immigration authorities failed to give any value to Mohamed’s right to life, his right to have his human dignity respected and protected and his right not to be subjected to cruel, inhuman or degrading punishment.55 The European Court of Human Rights has held in a number of cases that it cannot be excluded that considerations similar to those in relation to Article 3 of the European Convention on Human Rights (ECHR) ‘might apply to Article 2 of the Convention…where the return of an alien puts his or her life in danger’.56 The Court also appears to have recognised that the real risk of extrajudicial killing by state authorities in the state of destination might give rise to an obstacle to extradition under Article 2,57 as well as that an obstacle may be posed by the existence of a real risk emanating from persons or

groups of persons who are not public officials, if it has been shown that the authorities of the receiving state are not able to obviate the risk by providing appropriate protection.58 The obligation not to transfer if there are ‘substantial grounds’ for believing that a risk of torture or other nonderogable right is an absolute obligation that cannot be offset against any risk to national security and is not affected by the alleged conduct of the individual in question.59

Fair Trial Violations States may not remove an individual from their territory where there exists a real risk that the individual will be the victim of certain violations of his or her right to a fair trial in the receiving state.60 Although in relation to this type of situation the jurisprudence of human rights bodies is less wellestablished, it is clear that in some circumstances the existence of a risk of a serious violation of the right to a fair trial constitutes an obstacle to removal.61 The United Nations Human Rights Committee has refused to accept arguments, urged upon it by some states, that the prohibition of removal ‘only arises in cases involving violations of the most fundamental rights and not in relation to possible violations of due process guarantees.’62 Before removal, detainees ought to be allowed to access legal counsel. The importance of legal advice to those slated for removal was highlighted by the South African Constitutional Court when it held that that the election Mohamed allegedly made to accompany the FBI agent to the USA (where he would face the death penalty) must have been to some extent influenced by his being cut off from legal advice. According to the Constitutional Court, the circumstances supported the finding that there was a material impairment of Mohamed’s ability to waive validly any of his rights.63 Article 13 of the ICCPR and Article 1 of

Protocol No. 7 to the ECHR provide for the right to be given reasons for expulsion, to have one’s case reviewed, and to be represented for these reasons before the competent authority,64 although exceptions for ‘compelling reasons of national security’ raise questions as to how they would have been interpreted as encompassing basic due process rights in the context of transfer cases.65 The United Nations Committee against Torture (CAT) has for its part held that the remedy against refoulement requires ‘an opportunity for effective, independent, and impartial review of the decision to expel or remove.’66

Unlawful Transfers as Enforced Disappearance Unlawful transfers amount to disappearance of persons as the manner in which they are carried out removes the person from the protection of the law and, together with their family, they are denied relevant information regarding the state’s actions. The United Nations Convention for the Protection of all Persons from Enforced Disappearance defines the practice as the: arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.67 Under this Convention enforced disappearance is a crime against humanity as recognised in the 1998 Statute of the International Criminal Court.68

The Right to a Remedy and Reparation The right to a remedy and the right to reparation in the face of serious violations as a fundamental human right are recognised under international law.


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Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and return of property.69 States are obliged to undertake thorough investigations and prosecute those responsible and impose appropriate penalties.70 Legal Alternatives to Unlawful Transfers While it is clear that provisions of regional and international human rights are engaged when illegal transfers occur; it is also important to briefly reflect on their impact on society and lessons which can be learned. The arrests considered above were in response to alleged national security or terror threats, yet in almost all cases the allegations against the detainees were not based on any concrete evidence that implicated the suspects in acts that threatened the national security of the countries they were arrested in or of other countries. There are other alternatives that states could consider using instead of resorting to unlawful transfers. Legal processes like deportation, expulsion and extradition should be resorted to where these exist within domestic frameworks. Non-custodial options that could be considered by states include assigning individuals to compulsory residence and surveillance; periodic reporting to the police and other non-criminal sanctions are lawful options that can be considered. States should respect their international human rights obligations by ensuring that national legal frameworks proscribe and adequately deal with violations arising from unlawful transfers. Conclusion The repercussions of illegal transfers are still being felt today as many questions relating to these unlawful transfers remain answered; families have been torn apart, and livelihoods destroyed. Detainees had their rights violated and hardly anyone has been held accountable for these

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transgressions. For those still detained the nightmare goes on. Where they have not been currently undertaken, states must undertake full investigations into the circumstances surrounding unlawful transfers that have been carried out within their territories. Any transfers must be carried out within legal frameworks that respect due process guarantees including access to court, equality of arms and the right to representation. Where detentions are secret, there will always be issues around the use of such evidence in criminal trials; information obtained through torture should not be tendered as evidence in court. Persons facing removal should be allowed to stay in the country until courts reach a final decision. When unlawful transfers occur, beyond filing habeas corpus applications, lawyers should also challenge the detention and legality of such actions as was done in the Khalid Rashid case in South Africa. States should respect their international human rights obligations by ensuring that national legal frameworks proscribe and adequately deal with violations arising from unlawful transfers. Rendition is not a neutral process driven by some objective standard. As far as can be determined, renditions in the past seven years have only been of Muslims, mostly Arabs. Numerous other groups on the USA State Department's terrorism roster are apparently immune from rendition, suggesting that the procedure is less about eliminating terrorists than about eliminating what has been described as ‘Islamofascism’.71 Unlawful transfers discriminate between citizens and non-citizens, the former who as a matter of principle cannot be deported. Targeted as it is predominantly at non-citizens from Muslim backgrounds, this unequal

treatment leads to more rather than less extremism and therefore can create more dangers for the state.72 Aside from being counter productive, the policy of removals raises moral questions, particularly with regard to removals of non-citizens who have lived all or a significant part of their life in the sending country. It is unfair for the sending state to relieve itself from the responsibility for the dangerous individual who is a product of that society and it is also unjust to send him or her to a community which had nothing to do with his or her upbringing but has to bear his or her destructive influence.73 As information obtained from renditions carried out during the past seven years is classified, it is difficult for the public to judge the validity of the arguments justifying it74 and to assess its effectiveness. It is doubtful that carrying out unlawful transfers can lead to greater security; their effectiveness as responses to terrorism and threats to national security remains to be seen.

Judy Oder is a Lawyer on the Africa programme at INTERIGHTS. 1 See ‘Disappearing Act: Rendition by the Numbers’, Mother Jones, 3 March 2008, available at <http://www.motherjones.com/politics/2008/03/disappearing-act-rendition-numbers>. 2 Amnesty International, Unlawful Transfers in the War on Terror, June 2007, available at <http://www.amnesty.org/en/library/asset/AFR25/006 /2007/en/7d4ef8ac-d398-11dd-a329-2f46302a8cc6/afr 250062007en.html>. 3 Muslim Human Rights Forum, Horn of Terror, An Updated Report of the US-Led Mass Extra–Ordinary Renditions of Over 100 People from Kenya to Somalia, Ethiopia and Guantanamo Bay between January – August 2007 and Subsequent Counter- Terrorism Operations in Kenya, September 2008, p. 16. 4 Reprieve and Cageprisoners, Foreign Nationals Rendered to Guantanamo Bay-style Detention and Abuse in Ethiopia, 16 April 2007, available at <www.cageprisoners.com/download.php?download=560>, p. 8. 5 Ibid, p. 8. 6 Amnesty International, ‘Rendition in the Horn of Africa’, 15 June 2007, available at <http://wwwsecure.amnesty.org/en/news-and-updates/feature-stori es/rendition-in-the-horn-of-africa-20070615>. 7 Human Rights Watch, Why Am I Still Here? 30 September 2008, available at <http://www.hrw.org/en/ node/75257/section/1>.

Endnotes continued on page 33


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International Law Reports The case summaries in this issue were kindly prepared for the Bulletin by lawyers from the law firm of Dechert LLP. Those lawyers were:

Douglas Carleton Andrew Gaddes Sharon Gagliardi Phan Hieu Carlotta King Joseph Muscatiello Ysabelle Vuillard Ellen Wang

With many thanks to Andrew Gaddes and Suzanne Turner of Dechert LLP for managing the project.

Thanks also to Kirsten Bryans for her assistance.

African Commission on Human and Peoples’ Rights The Institute for Human Rights and Development in Africa v Republic of Angola Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe Economic Community of West African States Community Court of Justice Hadijatou Mani Koraou v Republic of Niger Registered Trustees of the SocioEconomic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria and Universal Basic Education Commission

Abbreviations ACHPR African Charter on Human and Peoples’ Rights ACmHPR African Commission on Human and Peoples’ Rights ECSR European Committee of Social Rights ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECOWAS Economic Community of West African States ESC European Social Charter

European Committee of Social Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

European Roma Rights Centre (ERRC) v Bulgaria

RESC Revised European Social Charter

The International Centre for the Legal Protection of Human Rights (INTERIGHTS) v Croatia European Court of Human Rights Aleksanyan v Russia Brânduse v Romania KH & Ors v Slovakia KU v Finland Opuz v Turkey Saadi v Italy Shtukaturov v Russia


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International Law Reports EDUCATION Right to education is justiciable Registered Trustees of the Socio-Economic Rights & Accountability Project (SERAP) v Federal Republic of Nigeria and Universal Basic Education Commission Judgment of the ECOWAS Community Court of Justice, 27 October 2009 SERAP, a human rights non-governmental organisation registered under the laws of the Federal Republic of Nigeria, filed an application against the Federal Republic of Nigeria and the Universal Basic Education Commission (UBEC) before the ECOWAS Community Court of Justice alleging the violation of the right to quality education, the right to dignity, the right of peoples to their wealth and natural resources and the rights of peoples to economic and social development guaranteed by Articles 1, 2, 17, 21 and 22 of the ACHPR. Before the Court could consider the merits of the application, UBEC filed a motion alleging that the Court lacks jurisdiction to entertain the action filed by SERAP and objecting on the following grounds: (1) jurisdiction of the Court is limited to the provisions of Article 9 of the Supplementary Protocol on the Court of Justice and the Court lacks jurisdiction to determine the subject matter of SERAP’s application; (2) the Compulsory and Basic Education Act 2004 and the Child’s Rights Act 2004 are municipal laws of Nigeria and not subject to the jurisdiction of the Court as they are not treaties, conventions or protocols of ECOWAS; (3) the educational objective of Nigeria is provided for under ss 18(1), (2) and (3) of Chapter II of the 1999 Constitution as directive principles of state policy and is therefore nonjusticiable or enforceable and cannot be determined by the Court; and (4) SERAP has no locus standi to instigate or maintain the application against UBEC because it has failed to show any damage, loss or personal injury. SERAP responded that its application was not based solely on domestic legislation but also on legally enforceable international and regional human rights treaties such as the ICESCR and the ACHPR which Nigeria had a duty to observe and make necessary domestic legislation to implement. Furthermore, UBEC’s argument on the non-justiciability and nonenforceability of the right to education as state policy is

misconceived as the right to education is recognised by the ACHPR and the ICESCR as legally enforceable. Finally, SERAP maintained that it did have locus standi as, according to the modern trend in most national and international jurisprudence, any citizen is allowed to challenge a breach of a public right in court. In considering UBEC’s objection, the Court considered grounds two and three together as both arose from the domestic laws and the Constitution as against the treaties and protocols of ECOWAS.

The Court held that: (1) it is a well established principle of law that jurisdiction is a creature of statute and that in this case the relevant statute for the jurisdiction of the Court is the Supplementary Protocol on the Court of Justice (SPCJ), specifically Article 9 thereof; (2) in order for the Court to have subject matter jurisdiction, the subject matter of the application must fall within Article 9 of the SPCJ; (3) as the subject matter of the application by SERAP is the violation of human rights alleged to be guaranteed by the ACHPR, the Court has jurisdiction to adjudicate such applications in accordance with Article 9(4) of the SPCJ which stipulates in part that the ‘Court has jurisdiction to determine cases of violation of human rights that occur in any Member State’; (4) the fact that human rights enshrined in the ACHPR are domesticated in the municipal law of Nigeria does not oust the jurisdiction of the Court; (5) the directive principles of state policy of Nigeria are not justiciable before the Court, however, SERAP alleges a breach of the right to education contrary to the ACHPR and not a breach of the right to education under the Constitution; (6) it is well established that the rights guaranteed by the ACHPR are justiciable before the Court; (7) a plaintiff must establish that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable but need not show he has suffered any personal injury or has a special interest that needs to be protected to have standing; and (8) the objection of UBEC is overruled and refused.


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International Law Reports EDUCATION, HEALTH Violation of Article 11(2) – requirement to provide advisory and educational facilities for the promotion of health – taken in conjunction with the nondiscrimination clause in Preamble of the ESC No issue under Article 16 – right of family to social, legal and economic protection and Article 17 – right of mothers and children to social and economic protection – of the ESC The International Centre for the Legal Protection of Human Rights (INTERIGHTS) v Croatia Decision of the ECSR, 30 March 2009 INTERIGHTS brought a complaint alleging that Croatia was not complying with Articles 11(2) and 16 taken alone and in light of the non-discrimination clause in the Preamble and Article 17 of the ESC because Croatian schools were not providing adequate sexual and reproductive health education for children and young people. It was alleged that the fragmented manner in which sexual and reproductive health information was delivered by schools was inadequate and failed to meet the ESC’s requirements. The information was not broad enough, outdated, gender stereotyped and could be considered to be scientifically inaccurate or discriminatory on grounds of sexuality and/or family status. For example, women are primarily portrayed as mothers and homosexuality is described as resulting from incorrect sexual development. In addition, it was claimed that the information provided in the elective Catholic religious teachings course and the extracurricular TeenStar programme was not comprehensive or evidence-based. Furthermore, it was contended that the teachers were not qualified to deliver such information and that there was inadequate monitoring of the curriculum by the Government and the teacher training agency. Finally, it was claimed that Croatia’s failure to institute an adequate programme of sexual and reproductive health education in schools had a disproportionate impact on and disadvantaged girls in such a way as to leave them vulnerable to certain risks. The Croatian Government responded that the sexual and health reproductive curriculum was adequately

integrated into other school subjects. The Government claimed that the curriculum included all topics recommended by regional and international bodies and complied with legislation pertaining to gender equality and same-sex unions. The Government also claimed that the elective Catholic religious teachings represented modern Catholic interpretations and that the Government was respecting the right of parents to provide their children with religious education. The Government also noted that the TeenStar programme is optional and no school is required to implement it. The Government further argued that the teachers are qualified for such topics and that adequate monitoring systems are in place. Finally, the Government denied that girls were exposed to greater health risks than boys, claiming, for example, that HIV/AIDS prevalence is very low in Croatia and that the World Health Organization has deemed Croatia to be a low priority zone with regards to the spread of HIV/AIDS.

The Committee held that: (1) under Article 11(2), states must provide education and aim to raise public awareness in respect of health-related matters, and, apart from the family framework, the most appropriate structure for the provision of health education is the school; (2) sexual and reproductive health education is a process aimed at developing the capacity of children and young people to understand their sexuality in its biological, psychological, socio-cultural and reproductive dimensions which will enable them to make responsible decisions with regard to sexual and reproductive health behaviour; (3) cultural norms and religion, social structures, school environments and economic factors vary across Europe and affect the content and delivery of sexual and reproductive health education; (4) states must ensure sexual and reproductive health education forms an adequate part of the ordinary school curriculum, in form and substance which are relevant, culturally appropriate and of sufficient quality, and that there are procedures for monitoring and evaluation of this; (5) sexual and reproductive health education must be provided to school children without discrimination on any ground, direct or indirect; (6) the obligation under Article 11(2) does affect the rights of parents to enlighten and advise their children, to exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents’ own religious or philosophical convictions; (7) states have some discretion to structure this type of education


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International Law Reports and INTERIGHTS had not demonstrated a clear causal link between Croatia’s approach of teaching sexual and reproductive health as an integrated part of different school subjects and the alleged consequences of the inadequacy of the education; (8) it had not been adequately demonstrated that the education provided could not reasonably fulfil the aim of raising awareness about sexual and reproductive health to the extent required by Article 11(2); (9) Croatia’s system for training teachers and monitoring this type of education is not incompatible with Article 11(2); (10) it had not been established that the overall content of the ordinary Croatian school curriculum is deficient enough to fall short of the substantive requirements of Article 11(2); (11) certain specific elements of the educational material used in the ordinary curriculum, however, are manifestly biased, discriminatory and demeaning, notably the way in which persons of non-heterosexual orientation are some times described and, as such, violate Article 11(2) in the light of the non-discrimination clause of the Preamble to the ESC; (12) the elective Catholic religious teachings course and the extracurricular TeenStar programme are optional courses not subject to the same level of scrutiny by the ECSR as ordinary curricular activities that receive direct state sanction, therefore the ECSR does not consider it necessary to examine what is acceptable under the ESC with regards to these optional courses; (13) the claim that textbooks in general perpetuate certain gender stereotypes is imprecise and undeveloped and the examples quoted do not by themselves violate Article 11(2); (14) with regards to the claim that the inadequacy of the education discriminated against girls by leaving them vulnerable to certain risks, there is not enough evidence to conclude that such education overall is inadequate under Article 11(2) and in any event it was not otherwise established that girls are inordinately exposed to certain health risks; (15) in light of the ECSR’s earlier findings, no separate issues arise under Article 16 taken alone and in the light of the nondiscrimination clause in the Preamble to the ESC; and (16) no issues fall within the scope of Article 17, which provides for the rights of mothers and children to social and economic protection.

EQUALITY Violation of Article 2 – right to life, Article 3 – prohibition of torture and Article 14 – prohibition of discrimination taken in conjunction with Articles 2 and 3 of the ECHR Failure to respond to gender-based violence amounts to discrimination Opuz v Turkey Judgment of the ECtHR, 9 June 2009 O, a Turkish national, and her mother were the victims of severe, escalating and ultimately fatal domestic violence and serious threats by the applicant’s husband, HO. O lodged the case with the ECtHR under Article 34 of the ECHR alleging that the State authorities had failed to protect her and her mother from domestic violence, in violation of Articles 2, 3, 6, 13 and 14 of the ECHR. INTERIGHTS intervened as a third party on the nature of the due diligence obligation to protect in the context of domestic violence and on international law’s recognition of gender-based violence as a form of discrimination against women. Between 1995 and 2002 O and/or her mother were beaten, threatened with a knife, run over with a car, threatened with death and stabbed. The prosecutor’s office repeatedly failed to pursue these matters based upon lack of evidence or because O or her mother withdrew their complaints. On 19 November 2001, O’s mother petitioned the public prosecutor’s office, alleging that HO and his father had again been threatening her and her daughter. HO was charged with making death threats. On 27 February 2002, O’s mother submitted a further petition, maintaining that HO’s threats had intensified and claiming that her life was in immediate danger. On 11 March 2002, while O’s mother was attempting to move to Izmir, HO stopped the furniture truck and killed O’s mother by shooting her in the head. HO was convicted of murder and illegal possession of a firearm and sentenced to life imprisonment. The Diyarbakır Assize Court mitigated the sentence to 15 years and ten months imprisonment and a fine due to the fact that HO committed the offence as a result of provocation by the deceased and his good conduct during trial. The Court then ordered the release of HO based on the time he had


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International Law Reports spent in pre-trial detention and the fact that the judgment would be examined on appeal. On 15 April 2008, O filed a complaint with the prosecutor’s office, asking the authorities to take measures to protect her life based on death threats made by HO since his release from prison. On 14 May 2008, O’s representative complained to the ECtHR that no measures had been taken to protect O despite her request and therefore asked the ECtHR to request that the State provide sufficient protection. On 14 November 2008, O’s legal representative informed the ECtHR that O’s life was in immediate danger since the authorities had still not taken any measures to protect her. On 21 November 2008, the State informed the ECtHR that the police had taken specific measures to protect O.

The Court held that: (1) Article 2(1) requires a state to both refrain from intentional and unlawful taking of life and to take appropriate steps to safeguard life, including adopting effective criminal laws and law enforcement machinery; (2) in appropriate circumstances, Article 2(1) imposes a positive obligation on authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal conduct of another; (3) for such a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, and that they failed to take measures which, judged reasonably, might have been expected to avoid that risk; (4) in deciding whether to prosecute perpetrators of domestic violence when the victim withdraws her complaint, authorities should consider (a) the seriousness of the offence, (b) whether the victim’s injuries are physical or psychological, (c) if the defendant used a weapon, (d) if the defendant has made any threats since the attack, (e) if the defendant planned the attack, (f ) the effect (including psychological) on any children living in the household, (g) the chances of the defendant offending again, (h) the continuing threat to the health and safety of the victim or others, (i) the current state of the victim’s relationship with the defendant and the effect on that relationship of continuing with the prosecution against the victim’s wishes, (j) the history of the relationship and (k) the defendant’s criminal history; (5) the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the

public interest, even if a victim withdraws her complaint; (6) in some instances, as here, the national authorities’ interference with the private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent the commission of criminal acts; (7) the national authorities did not exercise due diligence and therefore failed in their positive obligation to protect O‘s mother’s right to life within the meaning of Article 2 of the ECHR; (8) the violence suffered by O, in the form of physical injuries and psychological pressure, amounts to ill-treatment within the meaning of Article 3; (9) the State’s failure to take protective measures in the form of effective deterrence against serious breaches of O‘s personal integrity by her husband violated Article 3; (10) given the ineffectiveness of criminal and civil remedies, the State’s objection based upon non-exhaustion of remedies is rejected; (11) a state’s failure to protect women against domestic violence breaches their right to equal protection of the law regardless of whether the failure is intentional; (12) based upon reports from two leading NGOs, the Diyarbakır Bar Association and Amnesty International, O has shown that judicial passivity in Turkey created a climate conducive to domestic violence; therefore, the violence suffered by O and her mother may be regarded as gender-based violence in violation of Article 14 in conjunction with Articles 2 and 3 of the ECHR; (13) having found violations under Articles 2, 3 and 14 of the ECHR, it is not necessary to examine the same facts in the context of Articles 6 and 13; and (14) O is not entitled to pecuniary damage, but is entitled to non-pecuniary damage in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the ECHR as well as costs and expenses.


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International Law Reports EQUALITY, DISCRIMINATION (DISABILITY), FAIR HEARING Violation of Article 6(1) – right to fair hearing, Article 8 – right to respect for private and family life, Articles 5(1) and 5(4) – right to liberty and security and Article 34 – right of individual hearing – of the ECHR Shtukaturov v Russia Judgment of the ECtHR, 27 March 2008 S, a Russian national, suffered from a mental disorder and on several occasions was placed in a hospital in St. Petersburg for in-patient psychiatric treatment. S’s mother lodged an application with the Vasileostrovskiy District Court of St. Petersburg, seeking to deprive S of legal capacity. Based on a report prepared by the hospital, the Court declared S legally incapable on 28 December 2004, and appointed his mother as his legal guardian. Shortly thereafter, S was admitted to the hospital on his mother’s request. S claimed he was hospitalised against his will. There is no evidence S received formal notification of the incapacitation proceedings or any invitation to the court hearing. On 2 November 2005, S contacted a lawyer with the Mental Disability Advocacy Centre. The hospital staff denied S’s requests to meet with his lawyer, on the basis that S did not have legal capacity and that his lawyer did not have guardianship. Between 1 December 2005 and 16 January 2006, S’s lawyer lodged applications requesting discharge from the hospital with the guardianship authority, district prosecutor, public heath authority and the hospital, which were ignored or denied on the same basis. On 6 March 2006, the ECtHR indicated to the Russian Government by an interim measure that it should arrange for a meeting between S and his lawyer at the hospital. The chief doctor at the hospital refused to permit such a meeting, claiming that the ECtHR’s interim decision was non-binding on the Russian domestic courts. On 30 March 2006, the former Representative of the Russian Federation at the ECtHR wrote a letter to the President of the Vasileostrovskiy District Court, informing him of the interim measures applied by the ECtHR. On 6 April 2006, the District Court held that the lawyer should be able to meet with S. The hospital and S’s mother appealed this decision with

the St. Petersburg City Court, which held that the District Court had no competence to examine the request lodged by the Representative of the Russian Federation and that the lawyer had no authority to act on behalf of S. On the same day, S was discharged from hospital and met with his lawyer; however, according to the lawyer he was readmitted in 2007 at the request of his mother.

The Court held that: (1) the incapacitation proceedings before the District Court were unfair in violation of Article 6 of the ECHR because S was unaware of the proceedings and was unable to participate; (2) the interference with S’s private life was very serious and disproportionate to any of the legitimate aims listed in Article 8(2) of the ECHR which the Government could pursue; (3) S’s involuntary hospitalisation was unlawful under Article 5 of the ECHR because it was not ‘reliably shown’ that S’s mental condition required confinement, the incapacitation proceedings were flawed, and the courts failed to assess the necessity for incarceration; (4) the domestic courts failed to comply with Article 34 of the ECHR by hindering S’s access to his lawyer and by not complying with the ECtHR’s interim measure; and (5) it was reserving judgment on the issue of financial restitution of S under Article 41 of the ECHR until the State has the opportunity to submit any observations it may have or any agreement it may reach with S.


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International Law Reports EXPRESSION, FAIR HEARING, MOVEMENT (EXPULSION) Violation of Article 2 – principles of nondiscrimination, Article 3(1) – everyone equal before the law, Article 3(2) – everyone entitled to equal protection of the law, Article 7(1)(a) – right to appeal, Article 7(1)(b) – right to be presumed innocent, Article 9 – right to receive information and express and disseminate opinions, Article 12(4) – non-national in territory may only be expelled by decision taken in accordance with the law and Article 26 – duty to respect the courts – of the ACHPR Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe Decision of the ACmHPR, 30 March – 3 April 2009 In October 1980, M, an American citizen, was legally admitted to Zimbabwe and had settled permanently until he was deported in 2003. The Ministry of Home Affairs had issued M with a permanent residence permit which allowed him to work as a journalist. M worked as a foreign correspondent for the Mail and Guardian newspaper throughout his residence in Zimbabwe. On 7 May 2002, M published an article from the Daily News (an independent paper that had been closed by the state authorities) on the internet version of the Mail and Guardian. As a result of the publication, M was charged with ‘publishing falsehood’ under s 80(1)(b) of the Access to Information and Protection of Privacy Act (AIPPA). M was found not guilty on 15 July 2002. On 7 May 2003, the Supreme Court of Zimbabwe declared s 80(1)(b) of the AIPPA unconstitutional in the case of Zvakavpano Mudiwa v The State. Immediately after his acquittal, M was served with a deportation order issued under s 14(i)g of the Immigrations Act. M appealed the deportation order within 24 hours to the Ministry of Home Affairs as required by the Immigrations Act. At the same time, an application challenging the deportation order was filed by M’s lawyers at the High Court. On 17 July 2002, the High Court ordered that M should be allowed to stay in Zimbabwe until the Supreme Court had dealt with the

constitutional matters raised by his case. On 16 May 2003, M was informed by the Immigration Department that he could no longer work as a journalist and that he had not been accredited in accordance with the terms of the AIPPA. M informed the Immigration Department that he had filed an application to the Supreme Court in respect of his accreditation and, pending the outcome, should be allowed to work as a journalist as provided in the AIPPA. The Immigration Department informed M that they had a deportation order issued by the Ministry of Home Affairs which empowered them to deport him immediately without disclosing the reason for deportation. M was then forced into a car and taken to the airport. An urgent appeal was filed in the High Court to interdict the deportation order and compel the State to bring M before the High Court on the same day. At the appointed time the State Counsel appeared before the High Court without M. The High Court issued an order prohibiting the deportation of M. Later on the same day, the State Counsel informed the High Court that M could not be found. The High Court issued a second order for the release of M which was served on the immigration authorities at the airport. The State deported M. The Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa submitted a communication on behalf of M alleging that M’s rights of freedom of expression and freedom to disseminate information had been violated by the Republic of Zimbabwe contrary to Articles 2, 3, 7(1)(a) and (b), 9, 12(4) and 26 of the ACHPR. The communication was received by the Secretariat on 6 October 2004.

The Commission held that: (1) the Communication was admissible and Zimbabwe’s argument that domestic remedies had not been exhausted as required by Article 56(5) of the ACHPR was rejected; (2) in making the decision on admissibility in accordance with Article 56(5), the constructive exhaustion of remedies principle was applied as Zimbabwe had actively engaged in frustrating the restraint orders received from the domestic court; (3) M’s right to non-discrimination under Article 2 of the ACHPR was violated as he was targeted for the reason of being a foreign national; (4) Zimbabwe violated the right of all to equal treatment under similar conditions protected by Article 3(1) of the


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International Law Reports ACHPR by choosing not to treat M as it would a Zimbabwean national; (5) Zimbabwe violated the right to equal protection of the law protected by Article 3(2) of the ACHPR by denying M the opportunity to seek the protection of the courts; (6) Zimbabwe violated Article 7(1)(a) of the ACHPR which protects an individual’s right to appeal against acts violating his fundamental rights by deporting M before his hearing before the Supreme Court; (7) Zimbabwe violated Article 7(1)(b) of the ACHPR which protects an individual’s right to be presumed innocent until proven guilty by not affording M an opportunity to defend himself thus amounting to a conclusion of guilt; (8) M’s right to receive information and disseminate opinions protected by Article 9 of the ACHPR was violated as Zimbabwe resorted to deportation in order to silence him; (9) although African states may expel non-nationals from their territories, such measures should not be taken at the detriment of the enjoyment of human rights and should be taken in a manner consistent with the due process of law in accordance with Article 12(4) of the ACHPR; (10) by ignoring the Court orders that allowed M to stay in the country, Zimbabwe violated the provisions of Article 12(4) of the ACHPR; and (11) it is a vital requirement that a state governed by law respects court decisions, therefore by refusing to comply with the court orders staying M’s deportation, Zimbabwe violated Article 26 of the ACHPR which obliges Zimbabwe to guarantee the independence of the courts. In addition, the Commission recommended that Zimbabwe takes urgent steps to ensure court decisions are respected and implemented; rescinds the deportation orders against M; ensures the Supreme Court finalises the determination the application of M in respect of his accreditation or, in the alternative, considering the considerable amendments to the AIPPA, grant accreditation to M so he can continue work as a journalist; and reports to the Commission within six months on implementation of these recommendations.

MOVEMENT (EXPULSION) Violation of Article 1 – duty to recognise and protect rights in the ACHPR, Article 2 – principles of nondiscrimination, Article 5 – prohibition of torture, cruel, inhuman or degrading punishment, Article 6 – right to liberty and security of person, Article 7(1)(a) – right to appeal, Article 12(4) – non-national legally in territory may only be expelled by a decision taken in accordance with the law, Article 12(5) – prohibition of mass expulsion of non-nationals, Article 14 – guarantee of right to property and Article 15 – protection of right to work – of the ACHPR No violation of Article 3(2) – equal protection of the law The Institute for Human Rights and Development in Africa v Angola Decision of the ACmHPR, 7-22 May 2008 The Institute for Human Rights and Development in Africa (IHRDA) filed a complaint on behalf of a group of Gambians deported from Angola in 2004. The complaint alleged that the Angolan Government violated Articles 1, 2, 3, 5, 6, 7(1)(a), 12(4), 12(5), 14 and 15 of the ACHPR. According to the complaint, the Government embarked on a campaign, which identified and rounded up foreigners working and residing in the diamondmining regions of Angola, resulting in the detention and deportation of the foreigners, including the complainants. The Angolan authorities arrested the complainants in their homes and at street checkpoints without arrest warrants and without any other given reason. The Angolan authorities confiscated and destroyed the complainants’ passports, visas, work permits and other important documents. The complainants had to abandon their personal property and Angolan authorities extorted large amounts of money from them. The complainants were detained for several weeks, and some for months, in detention camps under extremely harsh conditions that were unfit for human habitation, such as no medical attention, little food and poor sanitation. The complainants did not have access to legal counsel or an opportunity to challenge their detention and expulsion in a court of law. Moreover the complainants claimed that no domestic remedies were available to them before they were deported. The ACmHPR accepted the complainants’ case and sent numerous requests and notices to the Government


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International Law Reports asking it to make submissions on the admissibility of the complaint and on the merits without receiving a response. As a result of the Government’s continued unresponsiveness, the ACmHPR decided to proceed and consider the complaint on the basis of the complainants’ submission and other information available to it.

The Commission held that: (1) the complaint is admissible because no domestic remedies had been made available to the complainants and it would be impractical to require the complainants to return to Angola in order to seek redress in the national courts; (2) the Government has not violated the Article 3(2) equal protection principle because the complainants have not sufficiently demonstrated that the Government treated the complainants differently from other nationals arrested and detained under the same conditions; (3) the Government has violated Article 5 by detaining the complainants in degrading and inhuman conditions; (4) the Government has violated Article 6 because there is no evidence that its arrest and expulsion of the complainants was not arbitrary; (5) the Government has violated Article 7(1)(a) by making it impossible for the complainants to access the Angolan courts or other national institutions to question their arrest, detention and deportation; (6) the Government has violated Article 12(4) by expelling the complainants without due process of the law; (7) the Government has violated Article 12(5) by carrying out mass expulsions aimed at national and ethnic groups; (8) the Government has violated Article 14 because its confiscation and destruction of property violated the complainants’ right to property; (9) the Government has violated Article 15 because its arbitrary arrest, destruction of work permits and subsequent deportation of the complainants violated their right to work under equitable and satisfactory conditions; (10) the Government has clearly violated the Article 2 antidiscrimination principles because its actions targeted the complainants based on their national origin; and (11) the Government has violated Article 1 because, instead of adopting measures to promote and protect human rights, the Government’s actions failed to take into account the safeguards contemplated by the ACHPR. In addition, the ACmHPR recommended that the Government take the necessary steps to redress the violations that the ACmHPR found, including compensating the complainants. Because this was not the first time that the ACmHPR had found similar violations by the Government in the context of mass

expulsions and deportations, the ACmHPR set forth specific recommendations for the Government to implement. Finally, the ACmHPR requested that the Government report back, at a later stage, with respect to the measures the Government has taken to implement these recommendations.

PRIVATE LIFE Violation of Article 8 – right to respect for private and family life and Article 6(1) – right of access to a court – of the ECHR No violation of Article 13 – right to an effective remedy – taken in conjunction with Article 6(1) of the ECHR KH & Ors v Slovakia Judgment of the ECtHR, 28 April 2009 KH and seven others, all female Slovakian nationals of Roma ethnic origin, were treated at gynaecological and obstetrics departments in two hospitals in Prešov and Krompachy in eastern Slovakia during their pregnancies and deliveries. Several of the women had been asked to sign documents prior to their delivery or on discharge from hospital but had been unsure of the contents of the documents. Since giving birth at these hospitals by caesarean section, none of the women had been able to conceive. Subsequently the women suspected that they might have been sterilised during their caesarean delivery by medical personnel at the hospitals. KH, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, authorising the lawyers to review and photocopy their medical records in order to identify the reason for their infertility and possible treatment and to obtain potential evidence for future civil proceedings for damages. In August and September 2002, a lawyer, as an authorised representative of the women, asked the management of the hospitals to allow her to consult and photocopy the medical records of the women. On 11 October 2002, representatives of the Ministry of Health expressed the view that s 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. According to the Ministry of Health, although s 16(6) expressly referred to the right of a ‘legal representative’ to consult


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International Law Reports records, this was to be interpreted narrowly and exclusively as the parents of an underage child or a guardian appointed to represent a person deprived of legal capacity or possessing restricted legal capacity. On 13 January 2003, KH and others brought identical civil proceedings in the relevant District Courts against the hospitals concerned claiming that the hospitals should be ordered to release their medical records to their authorised legal representative and to allow them to obtain photocopies. In each case the relevant Districts Courts ordered the hospitals to allow the authorised representative of the women to consult their medical records and to make handwritten excerpts thereof. However, the District Courts dismissed the claims concerning the right to photocopy the medical records, holding that such a restriction was necessary to prevent abuse of the personal data contained therein. KH and others appealed against the judgments in relation to the right to photocopy, relying on Articles 6(1) and 8 of the ECHR. In February and March 2004, the relevant Regional Courts upheld the first instance decisions and rejected the claims concerning the right to photocopy. On 24 May 2004, the women who had brought proceedings against the hospital in Prešov lodged a complaint with the Constitutional Court that their rights under Articles 6(1) and 8 of the ECHR had been violated. On 8 December 2004, the Constitutional Court (Third Chamber) rejected the claim, finding no breach of Article 6(1) and that in relation to Article 8, the Regional Court had correctly applied s 16(6) of the Health Care Act and that a fair balance had been struck between conflicting interests. On 25 June 2004, the remaining women brought a similar claim in relation to the hospital in Krompachy. On 27 October 2004, the Constitutional Court (Second Chamber) rejected the claim as being premature. Subsequently a new Health Care Act 2004 was introduced and seven of the women were able to access and photocopy their medical records under the provisions of that Act. The final woman, JH, had been informed that her medical records were considered lost. On 31 May 2007, the Ministry of Health admitted that the hospital had violated the Health Care Act 2004 in failing to ensure the proper keeping of JH’s medical files. On 30 August 2004, KH and others lodged an application against the Slovak Republic with the ECtHR

alleging that their right to access a court, to a private and family life and to an effective remedy protected by Articles 6(1), 8 and 13 of the ECHR had been infringed as a result of the failure by the domestic authorities to make photocopies of their medical records available to them.

The Court held that: (1) a state may have positive obligations under Article 8 of the ECHR and in determining whether or not such a positive obligation exists, regard must be given to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned; (2) the justification by the Slovak courts that the prohibition on making copies of medical records was necessary to protect the relevant information from abuse is not compelling, given that the Court cannot see how the women who had been given access to their records in their entirety could abuse information concerning themselves by making photocopies; (3) although protection of medical data is of fundamental importance to a person’s enjoyment of his or her right to respect for family life as guaranteed by Article 8 of the ECHR, the risk of abuse could have been circumvented by alternative means other than denying copies of the medical records, and therefore the Slovak Republic had failed to fulfil its positive obligation to ensure effective respect for KH and others’ private and family lives in breach of Article 8 of the ECHR; (4) where an individual’s access to a court is limited either by operation of law or in fact, the Court will examine whether the limitation impaired the essence of the right and whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought; (5) obtaining the medical evidence, in particular in the form of photocopies, was essential for the assessment of the position of the cases of KH and others in order for them to effectively seek redress before the courts of any shortcomings of their medical treatment; (6) there is no sufficiently strong justification for preventing KH and others from obtaining copies of their medical records and the restriction on them doing so cannot be considered compatible with an effective exercise of their right to access a court, therefore there has been a violation of Article 6(1) of the ECHR; (7) since Article 13 does not guarantee a remedy whereby a law can be challenged before a domestic organ and KH and others are challenging such a law, there has been no violation of Article 13 taken together with Article 8 of the ECHR; (8)


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International Law Reports in view of the conclusion in relation to Article 6(1) of the ECHR, it was not necessary to examine separately the alleged violation of Article 13 in conjunction with Article 6(1); and (9) KH and others’ suffered non pecuniary damage which cannot be remedied by the mere finding of a violation and each woman is awarded EUR 3,500.

Violation of Article 8 – right to respect for private and family life – of the ECHR Users of telecommunications and internet services must have a guarantee that privacy and freedom of expression will be respected, but such a guarantee is not absolute KU v Finland Judgment of the ECtHR, 2 December 2008 KU, a Finnish national, was born in 1986. On 15 March 1999, an unknown person(s), without KU’s knowledge, placed an advertisement on an internet dating site in KU’s name, which included KU’s personal information and claimed that KU was looking for an intimate relationship with a boy of his age or older. Relying on the confidentiality of telecommunications, the service provider refused to disclose the identity of the person who placed the advertisement. The police asked the Helsinki District Court to require the service provider to divulge the person’s identity. The District Court refused to do so, noting that the law permitted the police to obtain telecommunications identification data in cases concerning certain offences, but not for the offence of malicious misrepresentation. The Court of Appeal upheld the decision and the Supreme Court refused leave to appeal. On 1 January 2002, KU filed an application with the ECtHR against Finland alleging that the State failed to protect his rights to privacy under Article 8 of the ECHR. KU also claimed that, in violation of Article 13 of the ECHR, no effective remedy existed to reveal the perpetrator’s identity.

The Court held that: (1) Article 8 applies because the case concerns a matter of ‘private life’, a concept which covers the physical and moral integrity of KU; (2) although the purpose of Article 8 is to protect individuals against arbitrary interference by public authorities, it not only compels the state to abstain from such interference but

also imposes affirmative obligations on the state to adopt measures designed to secure respect for private life; (3) while the state has some margin to choose the means to secure compliance with Article 8, effective deterrence of grave acts where fundamental values of private life are at stake requires efficient criminal-law provisions; (4) the existence of the criminal offence of malicious misrepresentation and the possibility of bringing criminal charges or an action for damages against the service provider were insufficient protection in the present circumstances; the public interest, and the need to protect victims of crime requires that there be a means to identify the actual offender, to bring him to justice, and for KU to obtain financial reparation from him; (5) the state has an obligation inherent in Article 8 to criminalise offences against the person and to reinforce such criminalisation through effective investigation and prosecution; (6) the present incident took place at a time when the use of the internet for criminal purposes and the widespread problem of child sexual abuse were wellknown; therefore, Finland had sufficient opportunity to put in place a system to protect child victims from being exposed as targets for paedophiles via the internet; (7) in the present case, practical and effective protection of KU required that effective steps be taken to identify and prosecute the person who placed the advertisement; and (8) users of telecommunications and internet services must have a guarantee that their own privacy and freedom of expression will be respected, but such a guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime, or the protection of the rights and freedom of others.


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International Law Reports SLAVERY, EQUALITY, WOMEN Declaration individual was victim of slavery No violation of Article 1 – duty to recognise and protect rights in the ACHPR, Article 2 – non-discrimination, Article 3 – equality before the law, Article 6 – right to liberty and security of the person and Article 18(3) – discrimination against women – of the ACHPR Hadijatou Mani Koraou v Republic of Niger Judgment of the ECOWAS Community Court of Justice, 27 October 2008 M, a Nigerien national, was sold to the tribal chief, N, in 1996 under a transaction called Wahiya when she was 12 years old. Wahiya is a practice in Niger where a young girl, generally a slave, is acquired to work as a servant and serve as a concubine. A slave woman bought under these conditions is called a ‘fifth wife’ (a wife who is not one of the legally married ones). M was a servant in N’s household and also served as a concubine. In 2005 N gave M a liberation certificate but refused to let her leave claiming that she remained his wife. Nevertheless, M eventually was able to leave N’s house and never returned. Thereafter, M brought a complaint before the civil and customary tribunal of Konni seeking to live her life free of N. The tribunal found that M and N were never properly married. N appealed to the Court of First Instance of Konni, which quashed the tribunal’s judgment. M then took her case before the Niamey Supreme Court, which invalidated the Konni tribunal’s judgment, but did not provide an opinion on M’s slave status. The Niamey Supreme Court transferred the case back to the Konni tribunal. Before the end of these proceedings, M married R. After learning of the marriage, N filed a criminal complaint under Niger’s bigamy law which resulted in M, her brother and R being sentenced to six months imprisonment and fined 50,000 cfa francs each. M appealed, but M and her brother were nonetheless jailed. M then filed a criminal complaint in the Court of First Instance of Konni against N for slavery. During these criminal proceedings, the Konni Court (with regards to the remanded case concerning M’s marital status) ruled that M had the right to petition for a divorce, which N

subsequently appealed. In addition, the criminal appellate court ruled on M’s appeal of the imprisonment judgment and ordered the temporary release of M and her brother and withdrew the warrant issued against R until a divorce judge ruled on the matter. Thereafter, M filed a submission before the ECOWAS Community Court of Justice seeking that it (a) condemn the Republic of Niger for violating Articles 1, 2, 3, 5, 6 and 18(3) of the ACHPR; (b) request Nigerien authorities to adopt legislation that effectively protects women against discriminatory customs on marriage and divorce; (c) request Nigerien authorities to revise the legislation relating to courts and tribunals to better safeguard victims of slavery; (d) urge Niger to abolish harmful customs and practices founded on the idea of women’s inferiority; and (e) grant M a fair reparation for her suffering almost nine years of captivity. Niger responded by arguing that the complaint was not admissible because domestic remedies have not been exhausted and because the case was still pending before Nigerien domestic courts. INTERIGHTS were co-counsel in the case which was supported by Anti-Slavery International and Nigerian anti-slavery organisation Timidria.

The Court held that: (1) M’s application is admissible because neither of Niger’s admissibility objections were conditions to submitting an application to the Court; (2) it would not condemn Niger for violating Article 1 or urge Niger to adopt new legislation to protect women from discriminatory customs because these actions are beyond the Court’s jurisdiction; (3) it rejects M’s claims of discrimination under Articles 2, 3 and 18(3) because the discrimination was attributable to N, and not Niger; (4) M was a victim of slavery and Niger is responsible under international as well as national law for any human rights violations founded on slavery because of the tolerance and inaction of its administrative and judicial authorities; (5) it rejects M’s claim that her arrest and detention were arbitrary in violation of Article 6 because her arrest was based on a judicial decision (whether ill-founded or not); and (6) it accepts M’s request for reparation and holds that Niger is obligated to pay M 10,000,000 cfa francs in compensation.


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International Law Reports SOCIAL ASSISTANCE Violation of Article 13(1) – right to social and medical assistance – of the RESC European Roma Rights Centre (ERRC) v Bulgaria Decision of the ECSR, 18 February 2009 The ERRC brought a complaint alleging that the 2006 and 2008 amendments to Bulgaria’s Social Assistance Act of 1998 (‘the Act’) violated Article 13(1) of the RESC, taken alone or in conjunction with the nondiscrimination provisions of Article E. Prior to these amendments, entitlement to social assistance benefits under the Act was conditioned solely on the needs of beneficiaries and was unlimited in duration. These amendments established a maximum time period for which most unemployed persons of working age could obtain social assistance benefits. Beneficiaries could have their benefits restored, but only 12 months after the initial expiration of benefits. Certain categories of persons are not subject to the limitation period. The ERRC alleged that imposing time limits on the receipt of social assistance deprives vulnerable people access to important forms of support, emphasising that cutting benefits without considering individual circumstances or personal conduct could arbitrarily deprive persons of their means of subsistence. The ERRC further claimed that the amendments would unjustly impact the Roma ethnic group, who are overrepresented among the social assistance beneficiaries, and women, who could face pressure to leave the workplace to raise their children since women who are raising a child up to three years of age are exempt from the time limitations. Further, the ERRC claimed that there were no other forms of social welfare available in Bulgaria to compensate for the loss of social assistance. The ERRC cited statistics demonstrating that there were not enough job vacancies to employ all of the unemployed persons looking for work. For example, one study found that there was on average eight unemployed persons competing for each job vacancy. The ERRC also alleged that persons losing these benefits would also lose other entitlements which are tied to being a recipient of social assistance, such as health insurance. The Bulgarian Government argued that these amendments only applied to unemployed persons of

working age who are fit to work and emphasised that the goals of the amendments are to encourage reintegration into the workforce and satisfy a pressing need to eliminate long-term dependency on social assistance. The Government stated that the amendments were not discriminatory toward the Roma and did not have a disparate impact on women because the exemption applied equally to parents, regardless of gender; that the assertion that persons losing social assistance will lose other entitlements was incorrect; and, further, that it had undertaken a number of organisational and administrative measures to minimise the negative impact of the amendments.

The Committee held that: (1) individuals have a fundamental right of access to sufficient resources and social assistance to enable them to live in a manner compatible with human dignity; (2) Article 13(1) requires states to guarantee minimum income and social assistance to persons without adequate resources; (3) states may not impose time-limits on social assistance if the persons affected continue to meet the basic conditions for eligibility under Article 13(1); (4) social assistance benefits may only be reduced or suspended if they do not deprive persons in need of their means of subsistence; (5) the 2006 and 2008 amendments to the Act imposing time limits on the right of access to social assistance violated Article 13(1); (6) despite measures taken by Bulgaria to improve education and training and encourage workforce reintegration, as a result of the demonstrated difficulty in finding jobs, the loss of benefits will leave many without the means to meet the necessary costs of living in a manner consistent with human dignity; (7) there is insufficient evidence to establish that alternative forms of social assistance exist that would ensure that those in need would receive enough social assistance to satisfy Article 13(1); (8) with regard to the claim that the loss of social assistance would also result in the loss of health insurance, the ECSR refers to its assessment of the legal arguments in the complaint European Roma Rights Centre v Bulgaria, No. 46/2007, decision on the merits of 10 December 2008, paras. 43 and 44; (9) there is insufficient evidence to determine if the loss of social assistance would also result in the loss of rights (other than health insurance) that are linked to the right to receive social assistance; and (10) while the amendments are likely to have a considerable impact upon some of the most disadvantaged groups in Bulgaria and, in particular upon


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International Law Reports the Roma, since the amendments at issue violate the rights of all persons affected by a discontinuation of social assistance, the ECSR does not consider it necessary to examine whether Article E, read in conjunction with Article 13(1), was also breached.

TORTURE, INHUMAN OR DEGRADING TREATMENT Violation of Article 3 – prohibition of torture – of the ECHR Prohibition of torture absolute; prohibition of refoulement where threat of torture or ill-treatment upon return; prohibition of balancing the threat to national security with risk of ill-treatment upon return Saadi v Italy Judgment of the ECtHR, 28 February 2008 On 9 October 2002, S was arrested in Milan on suspicion of involvement in international terrorism. On 9 May 2005, the Milan Assize Court convicted S of criminal conspiracy (rather than international terrorism) and sentenced him to four years and six months imprisonment for that offence and for forgery and receiving offences. The Assize Court also ordered that after serving his sentence S was to be deported. On 4 August 2006, S was released. Four days later, the Minister of the Interior ordered S to be deported to Tunisia, applying provisions of Legislative Decree No. 44 entitled ‘Urgent Measures to Combat International Terrorism’. On 11 August 2006, S requested political asylum. He alleged he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and political and religious reprisals. By a decision of 16 August 2006, the head of the Milan police authority declared the request inadmissible on the ground that S was a danger to national security. On 14 September 2006, S applied to the ECtHR to suspend or annul the decision to deport him to Tunisia. On 5 October 2006, the Court requested that the Italian Government stay S’s expulsion. The next day, a new deportation order was issued against S. The United Kingdom intervened in the case as a third party. It argued that, in cases concerning the threat created by international terrorism, the approach followed

by the ECtHR in Chahal v the United Kingdom (Appl. No. 22414/93, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V) had to be altered and clarified. First, the threat presented by the person to be deported must be assessed in relation to the possibility and the nature of the potential ill-treatment. Second, national security considerations must influence the standard of proof required from the applicant. In other words, if the respondent state adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In such circumstances, the individual should have to prove that it was ‘more likely than not’ that he or she would be subjected to treatment prohibited by Article 3 of the ECHR.

The Court held that: (1) Article 3’s prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim’s conduct and even in the event of a public emergency threatening the life of the nation; (2) Article 3 imposes an obligation not to extradite or expel any person where substantial grounds have been shown for believing such person would run the real risk of being subjected to treatment contrary to Article 3; (3) given the absolute nature of Article 3, no distinction can be drawn between treatment inflicted directly by a signatory state and treatment that might be inflicted by the authorities of another state; (4) the United Kingdom’s argument that an applicant presenting a threat to national security must adduce stronger evidence of the risk of ill-treatment is also not compatible with the absolute nature of Article 3; (5) reports of Amnesty International, Human Rights Watch and the USA State Department describe numerous and regular cases of torture and ill-treatment meted out to persons in Tunisia accused under the 2003 Prevention of Terrorism Act, including hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns; (6) these sources, in addition to the fact that S was prosecuted in Italy for participation in international terrorism and was also sentenced in absentia in Tunisia to 20 years imprisonment for membership in a terrorist organisation and for incitement to terrorism, provided substantial grounds for believing that there was a real risk that S would be subjected to treatment contrary to Article 3 if he were to be deported; and (7) in view of the Court’s decision that deportation of S would be a


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International Law Reports violation of Article 3, it was not necessary to examine whether enforcement of the decision to deport S would also breach Articles 6 and 8 of the Convention and Article 1 of Protocol No. 7.

Violation of Article 3 – torture or inhuman or degrading treatment and Article 8 – right to respect for private and family life – of the ECHR Brânduse v Romania Judgment of the ECtHR, 7 April 2009 B, a Romanian national, was sentenced to ten years in prison for fraud by the Court of Appeal of Timisoara. In January 2003 B lodged an application with the ECtHR based on the conditions of his detention in the prisons of Arad and Timisoara. B alleged that Romania violated Article 3 of the ECHR due to the conditions of his detention and, more particularly, the overcrowded cells, the bad food quality and the unhygienic conditions. He also claimed that the conditions of his detention infringed Article 8 of the ECHR due to the authorities’ failure to remedy the polluted and pestilent air that came from a nearby garbage dump that B claimed exposed him to a real risk of disease. B further alleged a violation of Article 8 due to his inability to have private telephone conversations because he had to disclose the telephone numbers he called and because guards were present during his conversations.

The Court held that: (1) the Government’s objection to the admissibility of B’s claim under Article 3 based on the non-exhaustion of domestic remedies is rejected because the Government failed to establish that a recourse procedure existed which could remediate the alleged problem of overcrowded cells; (2) the Government’s admissibility objection is upheld and part of B’s claim under Article 3 for lateness is dismissed to the extent that the claim relates to specific conditions that no longer existed at a certain point in time, as opposed to claims concerning general conditions, such as overcrowding, that continued to exist following B’s transfer to another prison; (3) the state must ensure that a person is detained under conditions that respect human dignity, do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention and, given the practical demands

of imprisonment, adequately secure the person’s health and well-being; (4) the lack of an intent to humiliate or debase a victim cannot prevent a finding of a violation of Article 3; (5) Article 3 has been violated because the conditions during B’s several years of detention caused him to suffer at a level greater than the unavoidable level of suffering inherent by being detained; (6) the Government’s objection to the admissibility of B’s claim under Article 8 based on the non-exhaustion of domestic remedies is rejected because the Government did not adequately establish that recourse procedures existed that could remediate the claim; (7) Article 8, which protects individuals against arbitrary interference by public authorities, does not merely compel the state to abstain from such interference but it also imposes an affirmative obligation on the state to put into place adequate regulations regarding hazardous conditions; (8) B’s allegations regarding the olfactory nuisances are confirmed by a declaration of another detained person and other evidence such as environmental studies and reports; (9) even if B’s health had not deteriorated due to the polluted air from the garbage dump, taking into account the studies and the duration of his exposure to this polluted air, the quality of life and well-being of B had been adversely affected; (10) Article 8 has been violated because the authorities failed to comply with their obligations to take the necessary measures to remedy the conditions; (11) B’s allegations regarding the lack of privacy for his telephone conversations are rejected due to insufficient evidence; and (12) pursuant to Article 41, B is entitled to moral damages amounting to EUR 8,000 but not to any amount covering fees and costs which are not evidenced by any document.

Violation of Article 3 – prohibition of torture and inhuman or degrading treatment or punishment, Article 5(3) – right to be brought promptly before a judge and to trial following arrest and detention, Article 8 – right to respect for private and family life and Article 34 – right of individual application to ECtHR – of the ECHR Aleksanyan v Russia Judgment of the ECtHR, 22 December 2008 A, a Russian national, is a former practicing member of the Moscow bar. On 29 March 2006 a Moscow district court authorised the criminal prosecution of A in


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International Law Reports connection with his alleged participation in the embezzlement of property and shares of several oil companies in the late 1990s. On 5 April 2006 Russian authorities searched A’s home and country house pursuant to the district court’s authorisation. On 6 April 2006 A was arrested. A unsuccessfully appealed the decisions authorising the search of his premises, his prosecution and his detention. Thereafter, the authorisation to detain A for additional periods of time was granted on several more occasions resulting in A being subject to detention until January 2009. The investigation against A was completed by December 2006. A had serious eyesight problems when he was arrested in April 2006. In September 2006 A was diagnosed as HIV-positive. While in detention, A’s eyesight and overall health deteriorated significantly. A alleged that medical checkups were performed sporadically and that it was difficult for him to obtain certain prescribed treatments. A was placed in the Moscow AIDS Centre for examinations on several occasions beginning in July 2007. Nonetheless, A’s health continued to deteriorate. Finally, on 23 October 2007 a doctor at the Moscow AIDS Centre recommended that A be transferred to the centre for further examinations and treatments. Instead, on 26 October 2007 A was transferred from remand prison to a remand prison hospital. Meanwhile, A had already lodged an application with the ECtHR on 16 November 2006 against the Russian Federation under Article 34 of the ECHR. A alleged that because of his medical condition his detention amounted to inhumane and degrading treatment. A also alleged that his detention was unlawful and politically motivated. A further complained about the searches of his home and the effect that his detention had on his family life. In November 2007 A’s lawyer asked the ECtHR to apply interim measures to the Russian Government under Rule 39 of the Rules of Court. In response, the ECtHR indicated to the Government an interim measure in November 2007 inviting the Government to transfer A to a specialised medical institution. The ECtHR indicated a second interim measure in December 2007 inviting the Government to allow A’s examination by a mixed medical commission. On 24 January 2008 the ECtHR informed the Government of the complaints lodged by A under

Articles 3, 5, 8, 13 and 18 of the ECHR. Preliminary hearings for the trial began on 30 January 2008. A’s health continued to deteriorate and on 8 February 2008 A was transferred to an external haematological hospital where A claimed he was guarded around the clock and was almost constantly handcuffed to the bed. A was detained in that hospital while the ECtHR decided his case.

The Court held that: (1) the Government’s objection that A’s representative’s ‘abusive language’ constituted an abuse of the right of application under Article 35(3) is dismissed because, except in extraordinary cases, an application may only be rejected as abusive if it is knowingly based on untrue facts, and the ECtHR finds that the statements made by A’s representative reflected his ‘emotional attitude’ towards the behaviour of the authorities, which are ‘value judgments’ and as such cannot be regarded as ‘untrue’; (2) it cannot conclude that A’s deteriorating eyesight was attributable to the authorities or is incompatible with his detention from the standpoint of Article 3, but the central issue in the case is considered to be the treatment A received after he was diagnosed as HIV-positive and the Government violated Article 3 because its failure, at least until A’s transfer to the haematological hospital in February 2008, to transfer A to a hospital that specialised in treating AIDS caused A to suffer inhuman and degrading treatment; (3) from December 2006 the authorities prolonged A’s detention on grounds that were not ‘relevant’ nor ‘sufficient’ in violation of Article 5(3); (4) notwithstanding that the searching of a lawyer’s premises should be subject to especially strict scrutiny, the serious deficiency of the search warrants issued on 4 and 5 April 2006 is in itself sufficient to conclude that A’s premises were searched in violation of Article 8; (5) due to its findings under Articles 3, 5 and 8 the ECtHR does not consider it necessary to examine A’s remaining complaints under Articles 8, 13 and 18; (6) the Government failed to honour its commitment under Article 34 by not complying with the two interim measures in November and December 2007; (7) A’s other allegations that A and his lawyer were unduly ‘pressured’ under Article 34 have not been sufficiently substantiated; and (8) A’s continued detention is unacceptable and the Government must replace A’s detention on remand with other reasonable, less stringent measures of restraint (or a combination of such measures) provided by Russian law.


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Endnotes continued from page 16 8 Human Rights Watch, ‘Ethiopia/Kenya: Account for Missing Rendition Victims’, News release, 1 October 2008, available at <http://www.hrw.org/en/news/2008 /10/01/ethiopiakenya-account-missing-renditionvictims>. 9 Abdullahi was acquitted when the Court held he could not be made to enter a plea to a non-existent offence, that of enrolling to fight in a foreign army. The Court dismissed charges of being in Kenya illegally for Adan and his son. 10 Muslim Human Rights Forum, supra note 3, p. 22. 11 Finn, P., ‘U.S. citizen sues over treatment in 'rendition'’, The Washington Post, 11 November 2009, available at <http://www.washingtonpost.com/wp-dyn/ content/article/2009/11/10/AR2009111012772.html>. 12 Thomson, H., ‘MI5 colluded with CIA extraordinary renditions from Britain’, World Socialist Web Site, available at <http://www.wsws.org/articles/2006/apr2006 /guan-a11.shtml>. 13 Ibid. 14 Ibid. 15 Frontline World, ‘Extraordinary Rendition, Interview with Bisher al-Rawi’, October 2007, available at <http://www.pbs.org/frontlineworld/stories/rendition701/interviews/bisher.html>. 16 Smith, C. S. and Mekhennet, S., ‘Algerian Tells of Dark Odyssey in U.S Hands’, The Arabist, 7 July 2006, available at <http://www.arabist.net/blog/2006/7/7/ new-tale-of-rendition.html>. 17 Smith, C. S. and Mekhennet, S., ‘Caught in terror net: An Algerian's story’, The International Herald Tribune, 6 July 2006, available at <http://www.nytimes.com /2006/07/06/world/africa/06iht-algeria.2134140. html>. 18 Ibid. 19 A/HRC/13/42, available at <http://www2.ohchr.org/ english/bodies/hrcouncil/docs/13session/A-HRC-1342.doc>. 20 BBC News, ‘US ‘used Djibouti’ in Rendition’, 5 April 2006, available at <http://news.bbc.co.uk/1/hi/ world/africa/4880320.stm>. 21 Abdullah Salehe Mohsen El Asaad v Director of Immigration Services Ex parte in the High Court of Tanzania (Dar es Salaam Registry), High Court Criminal Application 23/ 2004 p. 8. 22 Supra note 19. 23 Ibid. 24 Ibid. 25 Murphy, K., ‘A Story of Extraordinary Rendition from South Africa, Where is Khalid Rashid?’ 14 March 2006, available at <http://www.indymedia.ie/article/74841>. 26 Jeebhai v Minister of Home Affairs (139/2008) [2009] ZASCA 35 (31 March 2009) para. 5, available at <http://www.supremecourtofappeal.gov.za/judgments/sca_2009/sca09-035.pdf>. 27 Ibid, para. 6. 28 Ibid, para. 53. 29 Ibid, para. 20. 30 Ibid, para. 21. 31 Ibid, para. 22. 32 Ibid, para. 26. 33 Ibid, para. 38. 34 Ibid, para. 53. 35 Alkrarama, ‘Morocco: Mr Britel, Italian victim of ‘extraordinary rendition’ still detained’, 9 July 2009, available at <http://en.alkarama.org/index.php?option =com_content&view=article&id=260:morocco-mrbritel-italian-victim-of-extraordinary-rendition-stilldetained-&catid=29:communiqu&Itemid=150>. 36 Ibid. 37 Ibid. 38 Fair Trials International, Abou El Kassim Britel –

Morocco, available at <http://www.fairtrials.net/cases /spotlight/abou_el_kassim_britel/>. 39 Alkrarama, supra note 35. 40 The Protocol to the OAU Convention on the Prevention and Combating of Terrorism declares that states must take all necessary measures to protect the fundamental human rights of their populations against all acts of terrorism. The African Union established the African Centre for the Study and Research on Terrorism to centralise information, undertake studies and analyses on terrorism and terrorist groups and to develop training programmes. 41 Adopted at 37th Ordinary Session of the African Commission in 2005. 42 Article 4 of the African Charter on Human and Peoples’ Rights (the African Charter). 43 Article 5 of the African Charter. 44 Article 6 of the African Charter. 45 Articles 7(1) and 12(4) of the African Charter. 46 Article 2 of the Convention Governing the Specific Aspects of Refugee Problems in Africa. 47 Human Rights Committee, General Comment No.31 Nature of the General Legal Obligation Imposed on State Parties to the Covenant, 29 March 2004, UN doc. CCPR/C/21/Rev. 1/Add.13, para. 12. 48 Vandova, V, ‘Protection of non-citizens against removal under international human rights law’, in Edwards and Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs, Cambridge University Press, 2010, p. 499. 49 See Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), 10 December 1984, 1465 UNTS 85. 50 See Article 16(1) of the International Convention for the Protection of All Persons from Enforced Disappearance, 13 December 2006 (not yet in force) and Article 8 of the Declaration on the Protection of All Persons from Enforced Disappearances, adopted by General Assembly Resolution 47/ 133 of 18 December 1992, UN doc. A/47/49 (1992). See also Principle 5 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by Economic and Social Council Resolution 1989/65 of 24 May 1989. 51 See, for e.g., Article 22(8) of the American Convention on Human Rights, 22 November 1969, 1144 UNTS 123. 52 Report of the Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1 September 2004, UN doc. A/59/324, paras. 28 (first quote) and 27 (second quote). 53 See Committee Against Torture, General Comment No. 1 Implementation of Article 3 of the Convention in the Context of Article 22, 21 November 1997, Views of 16 November 1998, UN doc. CAT/C/21/D/88/1997, paras. 6.5 and 7 and Human Rights Committee, General Comment No. 31, para. 12. 54 See Human Rights Committee, A.R. J. v Australia (Comm. 692/1996), Views of 11 August 1997, UN doc. CCPR/c/60/D/692/1996, para 6.8. See also Principle 5 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, supra note 50 and Article 13(4) of the InterAmerican Convention to Prevent and Punish Torture. 55 Mohamed and Another v President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18; 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) (28 May 2001), para. 29, available at <http://www.saflii.org/za/ cases/ZACC/2001/18.html>. 56 See Hakizimana v Sweden, Appl. No. 37913/05, ECtHR, decision on admissibility of 27 March 2008; See also Bahaddar v the Netherlands, Appl. No. 25894, Reports 1998-I, opinion of the Commission of 22 May 1995, at pp. 270 – 71, paras. 75-78 and Sinnarajah v Switzerland, Appl, No. 45187/99, ECtHR, decision on admissibility, 11 May 1999. 57 Shamayev and Others v Georgia and Russia, Appl. No. 36378/02, ECtHR, judgment of 12 April 2005, para.

372. 58 See Gonzalez v Spain, Appl. No. 43544/98, ECtHR, decision of 29 June 1999, in which an individual wanted on charges of drug trafficking, alleged that, if extradited, he and his family would be at risk of being killed as a result of his collaboration with the authorities. The Court held that on the facts the applicant had not in fact been exposed to risk. 59 In Chahal v United Kingdom, Appl. No. 22414/93 (1996), the ECtHR found that no derogation is permissible from the prohibition of torture and other forms of ill-treatment and the obligations arising from it, such non-refoulement, in the context of terrorism. See Agiza v Sweden (2005, Communication No. 233/2003, UN doc. CAT/C/34/D/233/2003) in which CAT stated that the Convention’s protections are absolute, even in the context of national security concerns (at para. 13.8). See also Aemei v Switzerland (1997, Communication No. 34/1995, UN doc. CAT/C/18/D/34/1995, at para. 9.8); M.B.B. v Sweden, (1999, Communication No. 104/1998, UN doc. CAT/C/22/D/104/1998 at para. 6.4); Arana v France, (2000, Communication No. 63/1997, UN doc. CAT/C/23/D/63/1997, at para. 11.5) and CAT’s concluding observations on Germany in 2004 (UN doc. CAT/C/CR/32/7), commending the reaffirmation of the absolute ban on exposure to torture, including through refoulement, even where there is a security risk. 60 Note that some support for the relevance of the ‘right to fair trial’ as an obstacle to extradition or transfer may be found in the fact that the 1990 UN Model Treaty on Extradition lists among the ‘mandatory grounds for refusal of extradition’ the fact that the extradite ‘has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14’ (under Article 3(f)). See also Article XIII (4) of the Council of Europe Guidelines on human rights and the fight against terrorism. 61 Vandova, supra note 48, p. 506. 62 A.R.J. v Australia, supra note 54, para. 6.15. 63 Mohamed and Another v President of the Republic of South Africa and Others, supra note 55. 64 See e.g Article 1, Protocol No. 7 to the ECHR. 65 Duffy, H., The 'War on Terror' and the Framework of International Law, Cambridge University Press, 2nd edition forthcoming. 66 Agiza v Sweden, supra note 59, para. 13.7. 67 Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, Human Rights Council, Report to the General Assembly on the First Session of the Human Rights Council, at 32 UN doc. A/HRC/1/L.10 (2006). 68 Article 7(1) of the International Criminal Court Statute 1998. 69 Principle 19 of the UN Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law. 70 Ibid, Principle 4. 71 Giraldi, P., ‘Renounce Extraordinary Rendition’ 17 February 2009, available at <http://www.antiwar.com /orig/giraldi.php?articleid=14258>. 72 Vandova, supra note 48, p.531. 73 See, for e.g., in a case concerning expulsion from France to Algeria, the concurring Opinion of Henry G. Schermers, Member of the former European Commission of Human Rights, Beldjoudi/Teychene v France, Appl. No. 12083/86, Report of the European Commission of 6 September 1990. 74 Giraldi, supra note 71.


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Litigating Extraordinary Renditions In the aftermath of the 11 September 2001 attacks the CIA extraordinary rendition programme accelerated and included dozens of states all over the world. Fundamental international standards have been violated. Many individuals have been seriously harmed. Judicial scrutiny of the extraordinary rendition programme commenced in 2003 and is far from approaching the end or even a first respite. The transnational character of extraordinary renditions and the complicity of many countries and their authorities, among them secretly acting intelligence services, causes problems. However, it also bears new possibilities. Usually, a crime committed by members of the USA armed forces or the secret services in a third country will not be prosecuted if the political will within the USA and the third country is lacking. But the rendition system involved citizens and territories of many countries. Therefore, international lawyers are able to use many different instruments and mechanisms available in national, regional and international judicial systems to investigate the extraordinary rendition programme, to bring the perpetrators to justice and to compensate the victims. This article focuses on case selection, case building and current factual and legal obstacles in proceedings on extraordinary renditions. Where and How to Litigate Rendition Cases Legal actions against extraordinary rendition flights have been taken in more than a dozen European countries. First and foremost all states directly involved in a rendition case are under scrutiny. As described in the two reports by Dick Marty,1 the

involvement of states can consist of several forms such as assisting in the act of abduction, providing for airspace, airplanes and airports or maintaining secret prisons.2 In a comprehensive case, every state should scrutinise the conduct of its officials and authorities to reveal their involvement, to compensate for their complicity and to hold the responsible individuals criminally liable. Therefore, in general, every state is a target for bringing a case. Obviously, information about the involvement of one state or the other is essential to initiate any proceedings at all. The principle of territoriality permits in general the exercise of jurisdiction and, for e.g., in cases of war crimes and torture, triggers an obligation to investigate and prosecute. But the domestic legal order of each state is another crucial point in the considerations of lodging a complaint, and amongst other requirements of relevance is the presence of the accused person in the jurisdictional state. As in the Italian case against those involved in the kidnapping of Abu Omar, a conviction of 25 individuals was reached in absentia.3 In comparison, in the German case against CIA agents for the abduction of Khaled El-Masri, a German citizen, 13 arrest warrants were issued by the local court in Munich.4 Since the German legal order does not provide for trials in absentia, the continuation of the proceedings depends on the extradition of the defendants. However, and this is equal to both countries, the governments have so far refused to request extraditions. The choice between different forms of complaints, civil or criminal, depends on different considerations. Generally, a civil complaint aims for compensation of the victim and the

Wolfgang Kaleck and Andreas Sch端ller criminal complaint aims for the prosecution of the perpetrator. Therefore, a combination of both is often favoured. One consideration is the expectation of being successful in filing a complaint. Being successful might mean having revealed some of the circumstances of abduction. The revealed information can then be used in other proceedings in the same country or in another country which often means that the judiciary will be concerned with a case for many years. However, filings to courts for compensation are only a last resort. In some cases the victim will have already been compensated by an inquiry commission with the competence to order compensations or by friendly settlement with the state involved.5 Coming back to the denials by the Italian and German governments for extradition requests, administrative applications were also brought with the aim to pressurise and force public authorities to request the extradition. Another form of administrative application seeks to reveal documents related to rendition programmes. Based on the national freedom of information acts important documents and information are gathered, strengthening and facilitating further investigations.6 Several additional mechanisms and instruments can be used to reveal the truth and to strengthen the pressure on states to investigate, prosecute and compensate. Complaints were brought to the United Nations Committee Against Torture for the violation of the Convention Against Torture by states who have not investigated their own involvement in extraordinary 7 renditions. In other cases applications were filed to human rights


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bodies and regional courts.8 The reports and decisions delivered by these bodies are an important and valuable tool that can be used to argue against state decisions and to push for further investigations or prosecutions. Other means to push for investigation and prosecution can be via Parliaments. Prosecution can be the result of investigations by parliamentary inquiry commissions or other reports conducted by different organs. These commissions have the competence to summon witnesses and thus produce evidence by their testimonies that can later be used in court trials. However, the mandate of such parliamentary bodies varies. The Canadian inquiry commission had a very strong mandate and was even able to compensate the victim, Maher Arar.9 The German parliamentary inquiry commission did not possess this competence. Furthermore, state secrecy was often invoked during the German inquiry, so that the outcome was – compared to the Canadian one – of little value. Law vs Politics: Factual and Legal Obstacles in Rendition Cases As the Italian case showed, one obstacle is diplomatic immunities. The Italian court acquitted three USA officials because of their diplomatic immunity, among them the alleged head of the kidnapping operation, Jeffrey Castelli, the CIA Rome station chief. Such immunities should be waived at least in cases of jus cogens violations, such as torture. The purpose of immunities is not to shield perpetrators of grave human rights violations who are being prosecuted by a foreign court. Another obstacle in the Italian case, as well as in a case brought before the USA courts seeking compensation, is the inadmissibility of evidence because of state secrecy.10 In Italy, the inadmissibility of evidence because of state secrecy led to the acquittal of five Italian officials, among them former Italian military intelligence service (SISMI) head Nicolò Pollari. The Italian Government argued and the

Constitutional Court in the last instance upheld the view of the inadmissibility of the evidence in this trial. In the USA, the case of El-Masri for compensation was in both instances rejected because of state secrecy invoked by the USA Government. The state secrecy defence should not be invoked in cases of serious human rights violations. In these cases the public should know what happened. Repetitions should be avoided by full disclosure of the facts and circumstances of cases to the public. Furthermore, the compensation of the victims of severe human rights violations should have priority over state secrecy. A further obstacle to bringing justice to rendition victims is the refusal of governments, like in the German ElMasri case, to request an extradition of suspects. Governments are intentionally disrespecting decisions of their highest courts and refusing to request the extradition of suspects or even convicted individuals. Therefore, pressure on these governments by their people is essential. An additional instrument in these circumstances is an application to an administrative court, claiming that there is a duty for governments to request the extraditions for grave human rights violations. Conclusion National and international mechanisms and instruments must be used to tackle extraordinary rendition. Since there are such a large number of actors and states involved, only investigations in most of the involved states or international procedures can shed light on the secrecy of the extraordinary rendition programme. States take different approaches when investigating, prosecuting and compensating extraordinary renditions. Many states, like the UK, Macedonia and, partly, Germany, are very reluctant to acknowledge their involvement even in the face of strong evidence. Other states like Canada in the Arar case partly acknowledge their involvement, apologise and

compensate. The main actor, the USA, and those states that still block attempts seeking for justice for the victims should be especially targeted by the international community. From the perspective of the victims, the attitude of several states to their involvement in the extraordinary rendition programme amounts to an additional severe violation of their fundamental rights.

Wolfgang Kaleck is General Secretary and Andreas Schüller is Legal Analyst, U n i v e r s a l Ju s t i c e P r o g r a m , a t t h e European Center for Constitutional and Human Rights.

1 A Swiss politician who was appointed by the Council of Europe to investigate allegations of extraordinary rendition by the CIA in Europe. 2 Marty, D., Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states, doc. 10957, Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 7 June 2006, Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, doc. 11302 rev., Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 11 June 2007. 3 See, e.g., Whitlock, C., 'Italian court convicts 23 Americans in CIA rendition case; extradition undecided’, The Washington Post, 4 November 2009, available at <http://www.washingtonpost.com/wp-dyn/content/ article/2009/11/04/AR2009110400776_pf.html>. 4 See, e.g., ‘Germany Issues Arrest Warrants for 13 CIA Agents in El-Masri Case’, Spiegel Online, 31 January 2007, available at <http://www.spiegel.de/international/0,1518,463385,00.html>. 5 See, e.g., Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations, Ottawa, Minister of Public Works and Government Services, 2006. 6 See, e.g., Amnesty International USA, Center for Constitutional Rights, Inc. and Washington Square Legal Services, Inc. v Central Intelligence Agency, Department of Defense, Department of Homeland Security, Department of Justice, Department of State, and their components, United States District Court for the Southern District of New York, 7 June 2007, all documents available at <http://ccrjustice.org/Ghost FOIA>. 7 See, e.g., United Nations Committee Against Torture (CAT), Agiza v Sweden, UN doc. CAT/C/34/D/233/ 2003, 24 May 2005. 8 See, e.g., United Nations Human Rights Committee (HRC), Alzery v Sweden, UN doc. CCPR/C/88/D /1416/2005, 6 November 2006; El-Masri v Tenet, see <http://www.aclu.org/human-rights_national-security/document-resources-el-masri-v-tenet#lgl>. 9 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, supra note 5. 10 El-Masri v Tenet, supra note 8.


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CIA Secret Detention Places in Poland – Current Legal Developments Poland was one of the Central European countries named in reports by Human Rights Watch and articles in The Washington Post in November 2005 as hosting USA Central Intelligence Agency (CIA) secret detention places.1 A few years have since passed and we are now much closer to the truth of Poland's shameful involvement in the CIA rendition programme. Currently, there is an official investigation being undertaken by the Prosecutor General into the matter. Until 2008, almost every politician in Poland denied any cooperation with the CIA in this regard. It has also been officially confirmed that CIA planes landed in the territory of Poland at Szymany airport.2 However, we still do not have the final confirmation as regards the existence of CIA secret detention places in the territory of Poland, although there are more facts now known which confirm this supposition.3 It has been claimed that such detention places could have been located at the territory of the Polish intelligence school in Stare Kiejkuty.

Kwaśniewski. Politicians denied cooperation with CIA, secret flights over the territory of Poland and the existence of CIA secret detention places. They also refused any cooperation with the investigative committees of the European Union and the Council of Europe, led by Dick Marty.4 In fact, there was only one politician, the Polish MEP Józef Pinior who was a member of the special committee created by the European Parliament, who presented a different vision of facts and was indeed interested in explaining the matter.5 From the very beginning of such claims being made, the Polish left-wing Government and politicians adopted a strategy of denial.

Denial by the Polish Government Poland has been accused of being one of the countries which helped the USA during 2003 in the CIA rendition programme, supposedly hosting a secret detention place, where detainees were transported from Afghanistan and Pakistan, tortured, and then sent to Guantánamo or other places of detention.

The same approach was adopted by the next Government which took power in September 2005, formed by the Law and Justice Party. It continued the policy of denial, but possibly due to different reasons. The former left-wing Government could have been interested in covering up the matter due to its personal interest (in 2003 Aleksander Kwaśniewski was the President of Poland and left-wing politicians were in the Government). The right-wing Law and Justice Party headed by Jaroslaw Kaczyński most probably did not want to spoil good relations with the USA, the most important international partner for Poland.

From the very beginning of such claims being made, the Polish leftwing Government and politicians adopted a strategy of denial. Denial was made even by the former President of Poland, Aleksander

In mid 2008, the new Polish Government, headed by Donald Tusk, decided to change the policy of denial and started an investigation as regards the existence of CIA sites in Poland. One can explain this change of strategy

Adam Bodnar

through political and international factors. The ruling party – Civic Platform – could feel secure as regards the potential results of investigation. Finding that Poland hosted CIA sites was not a political threat for its major politicians, as they were not in power when it happened. It was also important internationally to start an investigation. The policy of denial, when respected international actors (such as the Council of Europe or the European Parliament or NGOs such as Amnesty International) confirmed Poland's involvement in the CIA rendition programme, stopped being a good strategy. By starting an investigation, the Polish Government could start to present itself as accountable towards the international community. Current Status of Proceedings Currently the criminal investigation by the Prosecutor General in Poland is still pending. One of the country’s leading prosecutors has been appointed to deal with the case. The case is being treated with maximum seriousness (which is not always the case in Poland as regards major political cases). The investigation seeks to identify whether public officials committed a crime of abuse of power by allowing a certain part of Polish territory to be under control of a foreign state. One may question whether a Polish prosecutor is equally interested in the crime of torture allegedly committed on Polish territory. There is a risk that there will be no sufficient evidence to prove it, especially if the USA would prefer to protect its agents against any international liability. One can presume the defence strategy of Polish officials involved in the matter would be that they did not really know what


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was happening in Stare Kiejkuty, at the territory of the school of Polish intelligence. According to some journalists, ’Zero Zone’ was located in this school which was an area only CIA agents could access, and secret detention places were created in specially modified houses.6 Without the official results of the investigation these are only predictions. We can only base our knowledge on publicly available information, the results of journalists’ investigations as well as new official reports. Despite official requests by the Helsinki Foundation for Human Rights (HFHR) and demands expressed by the media, there is no information about the current stage of proceedings and when it is going to end. It is believed that the Polish investigation may be affected by the results of an investigation in Lithuania.7 An important question raised by this investigation is whether High Value Detainees were transported from Polish secret detention places to the Lithuanian ones. If there is proof of that in the Lithuanian investigation, then it should be taken into account in the Polish investigation. One of the most important recent reports is the one prepared by the United Nations Special Rapporteur on torture, the United Nations Special Rapporteur on the promotion and protection of human rights while combating terrorism, the Working Group on Arbitrary Detention, and the Working Group on Enforced or Involuntary Disappearances.8 In addition to general information as regards Poland's involvement in the CIA rendition programme, the report provides information on using private aviation contractors to make flights in the territory of Poland and the practice of preparing fake documentation. Most importantly, it includes information on the alleged detention of Abd al-Rahim al-Nashiri in Poland.

Freedom of Information Act Litigation by the Helsinki Foundation for Human Rights The HFHR was one of the few organisations to be continuously interested in seeking an explanation of Poland’s involvement in the matter. Since November 2005, the HFHR has sent different intervention letters to Prime Ministers and members of Polish Parliament – however with no result.9 The similar policy of denial was used both with respect to international actors and to domestic nongovernmental organisations (NGOs). In 2007 the HFHR, in cooperation with the Open Society Justice Initiative (OSJI), started a special programme designed to gain access to information on Poland's involvement in the CIA rendition programme, using the Act of 1997 on the Access to Public Information. The objective is to obtain as much knowledge as possible about secret flights in the territory of Poland, secret detention places, agreements signed with foreign governments and intelligence, the stage of investigation led by the Prosecutor General as well as the role of the Parliamentary Committee of Special Services. The HFHR is currently in the stage of submission of different freedom of information (FOI) requests. Some of them are answered, but in most of the cases different Polish agencies refer to the national security argument and refuse to answer our questions. The aim of proceedings is to bring certain cases in front of the administrative courts. In the opinion of the HFHR, the administrative courts should Most importantly, as a result of FOI requests, the Helsinki Foundation for Human Rights has officially obtained the list of flights of CIA planes into the territory of Poland from the Polish Aviation Authority.

confirm that, because of the risk of serious violation of human rights, freedom of information prevails over national security and certain information should be made available. Most importantly, as a result of FOI requests, the HFHR has officially obtained the list of flights of CIA planes into the territory of Poland from the Polish Aviation Authority.10 It was another confirmation (following the admittance by the prosecutor's authority)11 that such flights took place. It seems also that the list of flights, and information related to them, contains new facts as compared to those available from Eurocontrol which were provided to Dick Marty.12 The HFHR, together with its international partners, is currently analysing in detail the content and importance of the data provided. If the criminal investigation (discussed above) concludes with an official indictment, the HFHR would seek to join proceedings as a third party. Our ultimate goal is to watch over the activities of the Polish authorities in explaining Poland's participation in the CIA rendition programme. However, the hitherto outcome of our activities shows that, in general, there is no sufficient democratic supervision over intelligence in Poland. Therefore, the HFHR has started other litigation, not related directly to the CIA rendition programme. For example, in July 2009 we submitted a case to the Regional Administrative Court in Warsaw, claiming that Polish special services should provide us with statistics of wire-tapping and operational control. The special services claim that even statistics are confidential. It should be underlined that our activities in this area resulted in bringing this issue to the public agenda and discussion. Recently, the Minister of Justice has announced the draft law which stipulates the disclosure of such data.


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The activities in Poland are part of the broader strategy of OSJI of using FOI laws in order to bring accountability for the CIA rendition programme, undertaken also in other countries (e.g. Romania, Macedonia and recently Lithuania). The cooperation within the international network allows for the exchange of information and strategies between OSJI partners.

none of the publicly disclosed documents officially confirm Poland's involvement in the programme. Nevertheless, we know more and more about what really has happened during the Bush administration and the ‘war on terror’ or about certain details concerning possible detention of High Value Detainees in the secret detention places in Poland.14

Journalists’ Approach to the Issue An issue of special concern is the approach of the Polish press towards Poland's involvement in the CIA rendition programme. When the news first broke, the Polish media obviously reported the story and made their checks. However, without getting any special or additional knowledge, they stopped being interested in the topic. There was no real journalists’ investigation undertaken and one could learn more about the CIA rendition programme in Poland from Dick Marty's reports than from the Polish media.

Another source of information could be different trials undertaken by civil liberties groups in the USA and testimonies made by people involved in the rendition programme. As a consequence, one may expect that the Polish public will obtain an official confirmation by external sources before one by internal sources.

There is a risk that some journalists accepted the hypothesis presented by politicians that the whole story is a product of imagination of USA journalists. Alternatively, some journalists could have adopted a strategy of self-restraint and were not especially interested in the issue due to the potential threat to Poland's national security. It is remarkable that the first real journalists’ investigation took place as late as in the first quarter of 2009, by journalists at Rzeczpospolita, who managed to find more facts than had been found previously by investigative committees.13 Obama Administration’s Impact on the Proceedings in Poland It is quite probable that the administration of Barack Obama, President of the USA, may have a substantial impact on the situation in Poland. It seems that the strategy of the new administration is to steadily disclose information on the CIA rendition programme to the public. Up to now,

It is also probable that some of this information (if not yet publicly disclosed) is already being used by the Polish prosecutor's authorities in its domestic investigation. If Poland's involvement in the CIA rendition programme is confirmed, it could be one of the greatest sins of the new Polish democracy. Who May Be Liable? Confirmation of the existence of CIA secret detention places on the territory of Poland may have serious legal consequences. First, public officials (most probably agents of the Polish intelligence services) could face indictment for abuse of their power (and maybe for negligence to prevent torture in the territory of Poland). However, there is also a possibility of responsibility of the highest public officials, especially ministers, before the Tribunal of State – a special constitutional organ designed to deal with violations of the laws and the Constitution. One can imagine a prosecution of the minister responsible for secret services who could have known about CIA secret detention places. The prosecution may reach both left-wing Government

members (responsible for what happened in 2003) as well as rightwing Law and Justice Government members (as it is most certain that they knew about Poland's involvement and did nothing in order to properly explain it or to start the investigation). Why Was Poland Involved in the CIA Rendition Programme? There are two likely reasons for Poland's involvement in the CIA rendition programme. First, for many years, Poland has traditionally been an ally of the USA. Poland was one of the few EU Member States which decided to support the USA intervention in Iraq by providing military assistance. It seems that the support for the USA in its fight with terrorism was just a part of keeping good relations. There is also no doubt that Polish intelligence, for many years, had good cooperation with USA intelligence. Second, it seems that Polish intelligence could act beyond sufficient political control and supervision. One may guess that the cooperation between Polish and USA intelligence started with typical activities, but then – due to lack of sufficient supervision – turned into more advanced form of cooperation, which was not even known to ministers supervising the coordination of special services. Polish special services have undertaken recent reforms. First, the lack of supervision and sufficient control over the Military Intelligence Services was a major point of public debate in 2006-2007, and resulted in the dissolution of these services and creation of the new services – Service of the Military Intelligence (Służba Wywiadu Wojskowego) and Service of the Military Counter-Intelligence (Służba Kontrwywiadu Wojskowego). Second, the role of the Agency of Internal Security (Agencja Bezpieczeństwa Wewnętrznego) has been strengthened, as well as improving democratic control over it and other intelligence services. If Poland's involvement in the CIA


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rendition programme is confirmed, it could be one of the greatest sins of the new Polish democracy. The Polish Constitution of 1997 explicitly prohibits torture, degrading or inhuman treatment. Poland is also a proud signatory to many international conventions, including the United Nations Convention against Torture and the European Convention on Human Rights. Since 2004 Poland is also a member of the EU. Such close cooperation with the CIA and the giving away of a certain part of Polish territory in order to allow for torture may be a great contradiction of the universal values which Poland claims to share. Therefore it should be an effort of every stakeholder – politicians, prosecutors, judges, journalists as well as NGOs – to fully explain Poland's involvement in the CIA rendition programme and to hold accountable those responsible for abuses. It must happen despite even the highest political consequences.

Adam Bodnar is the head of the legal d i v is i o n a n d m e m b e r o f t h e Management Board of the Helsinki F o u n d a t i o n f o r Hu m a n R i g h t s , a leading Polish human rights NGO. He i s a l s o a l e c t u r e r a t t h e Wa r s a w U n iv e r s it y F a c ul t y o f L a w a n d Administration and a member of the visiting faculty of the Central European University in Budapest.

1 Priest, D., ‘CIA Holds Terror Suspects in Secret Prisons’, The Washington Post, 2 November 2005. 2 See statement by Mr. Robert Majewski, prosecutor leading the investigation, on 4 February 2009. He confirmed that 11 secret CIA flights (mostly by Gulfstreams) were made to the territory of Poland and airplanes landed in Szymany airport. His statement on secret flights was the first official statement by Polish authorities confirming the cooperation with CIA. Nevertheless, he underlined that it is not clear what the cargo of the CIA planes was, and whether detainees were transported with them. See also ‘CIA Planes Did Land in Poland But What Was Their Cargo?’, translation of an article published in Gazeta Wyborcza, 5 February 2009, available at <http://wyborcza.pl/1,86871,6238040,CIA_ Planes_Did_Land_in_Poland_But_What_Was_Their_C argo_.html>. 3 See Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 26 January 2010. 4 Marty, D., Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states, doc. 10957, Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 7 June 2006, Marty, D., Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, doc. 11302 rev., Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 11 June 2007. 5 See Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, European Parliament, (2006/2200(INI)) A60020/2007. 6 Marszałek, A. and Majewski, M., ‘Amerykanie mieli tajną bazę na Mazurach’ [Americans had a secret base in Mazury lakes], available at <http://dziennik.pl/polityka/article233214/Amerykanie_mieli_tajna_baze_na_Ma zurach.html> (in Polish). 7 On 22 December 2009 the Parliamentary Commission of National Security and Defence in Lithuania published a report concerning results of the parliamentary investigation, which was subsequently adapted by the Lithuanian Seimas on 19 January 2010. The Commission found that at least two secret detention centres were created and that during 2002-2005 CIA chartered airplanes were repeatedly allowed to land in Lithuania. 8 Supra note 3, at p. 60.

Foundation of Human Rights of 3 March 2006, 7 August 2007, 27 June 2008 and 2 February 2010, available at <www.hfhr.org.pl/cia> (in Polish). 10 See <www.hfhr.org.pl/cia> (in Polish). 11 Supra note 2. 12 Supra note 4. 13 See following articles: Krzykowski, A. and Kowalewski, M., ‘Jak rząd i służby kamuflowali loty’ [How the Government and intelligence services made a flight camouflage], Rzeczpospolita daily, 15 April 2009; Zemla, E. and Kowalewski, M., ‘Polski wywiad w służbie CIA’ [Polish intelligence at the service of CIA], Rzeczpospolita daily, 15 April 2009; Zemla, E. and Kowalewski, M., ‘Szukając dokumentu o CIA’ [Seeking a document on CIA], Rzeczpospolita daily, 22 April 2009. Translations of those articles are available at <www.hfhr.org.pl/cia>. Journalists obtained detailed information on flights into the territory of Poland, types of ‘status’ awarded to flights in air traffic or the manner in which the planes were cleared. They also heard an anonymous witness, an intelligence officer, who, according to his statement, saw the handcuffed and blindfolded individuals escorted from the plane in Szymany. 14 E.g. Memorandum for John A. Rizzo, Senior Deputy General Counsel of the Central Intelligence Agency, 30 May 2005, includes a small passage concerning the use of a waterboarding interrogation technique with respect to Khalid Sheikh Mohammad. According to the Memorandum: ‘The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.’ It is important to note that following analysis of flights and landings in Szymany airport Khalid Sheikh Mohammad could have been held in Poland in March 2003. Memorandum is available at <http://s3.amazonaws. com/propublica/assets/missing_memos/28OLCmem ofinalredact30May05.pdf>. Furthermore, in April 2009 an International Red Cross report was disclosed, (ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody, February 2007, available at <http://www.nybooks.com/icrc-report.pdf>), which includes statements by Khalid Sheikh Mohammad indicating Poland as a place of his detention. See also Danner, M., ‘US Torture: Voices from the Black Sites’, New York Review of Books, 9 April 2009, available at <http://www.nybooks.com/articles/22530>.

9 E.g. letters to the Prime Minister by the Helsinki

On 14 December 2009, a one day international conference entitled War on Terror and Human Rights – In Search for Truth and Responsibility was held at the Warsaw University Law Faculty premises. The conference was organised by the Helsinki Foundation for Human Rights (HFHR) in Warsaw under the auspices of the Dean of the Law Faculty of Warsaw University. The aim of the conference was to analyse the situation in Poland with respect to allegations about the existence of secret CIA detention centres in the north of Poland (at Stare Kiejkuty) and the involvement of Poland in the CIA secret rendition programme. For further details on the conference please visit: <http://humanrightshouse.org/Articles/13644.html>.


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USA Challenges to the 'Extraordinary Rendition' Programme Since 2004, three major lawsuits challenging the Bush administration’s ‘extraordinary rendition’ programme have been filed in USA courts. In all three lawsuits, the USA Government sought and obtained immediate dismissal of all claims on grounds wholly unrelated to the legal and factual merits of the cases. Although appeals from two of those dismissals remain ongoing, it is far from certain that any of the plaintiffs – victims of state-sponsored kidnapping, arbitrary detention, and torture – will ever be granted a day in court. This is a dismal judicial record, but not, for us, a surprising one. Only a single lawsuit filed by victims of USA torture policies has survived a motion to dismiss, and even that suit has been held up on appeal and may never reach trial.1 Nearly eight years since the Bush administration’s catastrophic decision to bypass existing legal mechanisms in favour of detention without charge and interrogation without legal restraint, it remains the case that USA courts have been willing to adjudicate torture claims against foreign dictators, but not against USA officials or contractors. Has the litigation, then, been useless – or, worse still, counterproductive to the effort to rein in grave human rights abuses perpetrated by the USA? We argue that it has not, and that the voices of the victims, amplified by the megaphone of high-profile litigation, have played a critical role in transforming the public debate in the USA about human rights in the ‘war on terror’ and, ultimately, in setting the USA on a different course. While genuine accountability – including compensation for the victims and punishment for the perpetrators – remains a central and unrealised goal

of USA human rights advocates, the victims who courageously and eloquently challenged the rendition programme in court undoubtedly helped ensure that others will not suffer a similar fate. The Rendition Cases In January 2004, Canadian citizen Maher Arar filed suit against USA Attorney General John Ashcroft, FBI Director Robert Mueller, and other USA Government defendants, seeking to hold them accountable for his rendition to Syria, where he was brutally tortured and detained for a year without charge. Arar, represented by the Center for Constitutional Rights, alleged violations of the USA Constitution and of USA statutory prohibitions against torture, but these claims have never been adjudicated on their merits. Rather, the USA Government sought immediate dismissal on national security grounds and, in February of 2006, Judge David Trager dismissed the case. Judge Trager acceded to the Government’s contention that irrespective of the validity of Arar’s allegations, ‘the national-security concerns and foreign policy decisions at the heart of this case’ were ‘uniquely reserved to the political branches’ (i.e., Congress and the President); thus, any judicial remedy would constitute an improper intrusion into the political sphere.2 The dismissal of Arar’s suit has since been affirmed by the USA Court of Appeals for the Second Circuit. In December 2005, German citizen Khaled El-Masri filed suit against former CIA director George Tenet and private aviation companies, seeking compensation for his abduction in Macedonia and rendition to Afghanistan, where he was confined in a CIA-run prison for nearly five

Ben Wizner and Steven Watt months before being released without charge or acknowledgment. El-Masri, a victim of mistaken identity, alleged that his detention and torture by the CIA violated both the USA Constitution and customary international law. Before the named defendants were required to respond to the complaint, the CIA intervened in the litigation in order to invoke the ‘state secrets privilege,’ a common law evidentiary rule that allows the Government to block the disclosure of military secrets in civil lawsuits. But instead of invoking the privilege in response to requests for sensitive evidence, the CIA invoked the privilege over the entire lawsuit and moved for dismissal. In May 2006, Judge T. S. Ellis dismissed the suit, explaining that even though El-Masri’s allegations had received widespread publicity and were supported by corroborating evidence, ‘any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine programme and such a revelation would present a grave risk of injury to national security.’3 Accordingly, ‘ElMasri’s private interests must give way to the national interest in preserving state secrets.’4 The USA Court of Appeals for the Fourth Circuit unanimously affirmed the dismissal, and the USA Supreme Court declined to review the case. Finally, in May 2007, five rendition victims, including UK nationals Binyam Mohamed and Bisher Al-Rawi, filed suit against Boeing subsidiary Jeppesen DataPlan, Inc., a private flight services corporation that had served as the CIA’s ‘travel agent’ for multinational rendition flights. Once


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again, before the named defendant had answered the complaint, the CIA intervened and invoked the state secrets privilege, contending that any litigation of the plaintiffs’ claims of torture and forced disappearance would harm national security. Judge James Ware granted the CIA’s motion to dismiss in a cursory order, but on 28 April 2009, a three-judge panel of the USA Court of Appeals for the Ninth Circuit unanimously reversed that decision. The Court observed that the Government’s ‘sweeping’ rationale in support of dismissing the entire case at its outset ‘ha[d] no logical limit’ and amounted to a demand that ‘the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunising the CIA and its partners from the demands and limits of the law.’5 Noting that ‘the Executive’s national security prerogatives are not the only weighty constitutional values at stake,’ the Court, quoting Blackstone, emphasised that ‘arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious...act of despotism,’ but ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’6 The Court remanded the case to the trial court for further proceedings, instructing the Government to refine its secrecy claims by invoking them with respect to discrete evidence, rather than the entire case. This was a significant victory; it carries the potential to open the door, at long last, to the litigation of torture victims’ claims in USA courts. But it may prove short-lived. In June 2009, lawyers representing the Obama administration petitioned the Court for ‘rehearing en banc’ before an elevenjudge panel; in December 2009, the case was reargued. Should the Court stand by its earlier decision, it is likely that the Obama administration will seek review in the USA Supreme

Court. Whatever the outcome, it is all but certain that the first full-fledged trial in a lawsuit brought by rendition victims remains years away. Strategic Litigation Had litigating these cases to judgment been the only, or even the primary, goal of the lawyers and plaintiffs in these suits, then the doctrinal quagmire that has ensued would be viewed as an unmitigated disaster. Nearly six years since Maher Arar first challenged the practice of rendition, it remains possible that neither he nor the other plaintiffs will ever have his day in court in the USA. Yet each of the plaintiffs in these lawsuits was adamant from the start that the principal aim of any litigation must be to halt the practices of rendition and torture, not to obtain individual redress. By that standard, it seems fair to say that the litigation has been a qualified success. Largely as a result of the litigation, these victims and their stories are known throughout the world. In the USA in particular, the lawsuits have had a dramatic impact on an extraordinary public debate about the legality, morality, and efficacy of torture. It is no accident that Khaled El-Masri, not Khalid Sheikh Mohamed, has become the public face of the CIA’s extraordinary rendition programme. Although the practice was deplorable in both instances, presenting an innocent victim to a frightened American public proved critical to changing the discussion from one about the ‘rights of terrorists’ to one about the tragic consequences of abandoning the rule of law. The dubious dismissals of El-Masri’s and Arar’s lawsuits generated widespread public outrage and calls for reform not only of the USA rendition programme, but of the procedural rules that allowed for the denial of any judicial remedy for torture victims. President Obama campaigned on a promise to end the extraordinary rendition programme; on his second full day in office, he signed an Executive Order permanently

shuttering the CIA’s overseas prisons and prohibiting abusive interrogations. And while the Obama administration has, to the regret of many supporters, continued the practice of asserting overbroad secrecy claims in an attempt to terminate civil litigation, members of Congress, citing the El-Masri case, have introduced legislation in both houses to reform the state secrets privilege so that it can no longer be used as a de facto immunity doctrine for the executive branch. It is now abundantly clear that the USA judicial system was wholly unprepared for an onslaught of torture claims targeting high-level USA Government officials and USA Government contractors, and that secrecy and immunity doctrines that were developed in radically different circumstances were successfully employed to shield the perpetrators of grave human rights abuses from any liability or accountability. But the litigation also put pressure on those doctrines, generating a public backlash that is already being felt in the courts. Perhaps Binyam Mohamed’s torture claims will be the first to be litigated fully in USA courts, but if they are not, the plaintiff who successfully holds his torturers accountable will be standing on the shoulders of Mohamed and ElMasri and Arar. When that day comes, these plaintiffs – though denied remedies themselves – will have truly won. B e n Wi z n e r a n d S t e v e n Wa t t a r e a t t o r n e ys a t t h e A m e r i c a n C i vi l Liberties Union. They represent the p l a i n t i f f s i n E l - M a s r i v Te n e t a n d Mohamed et al v Jeppesen DataPlan, Inc. Steven Watt was also involved in the litigation of Arar v Ashcroft. 1 That case, Saleh v Titan, involves claims brought by Iraqi nationals who allege that they were tortured by USA contractors working as interrogators at Abu Ghraib prison. For more information, see <http://ccrjustice.org /ourcases/current-cases/saleh-v.-titan>. 2 Arar v Ashcroft et al, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). 3 El-Masri v Tenet, 437 F. Supp. 2d 530, 537 (E.D.V.A. 2006). 4 Ibid at 359. 5 Mohamed v Jeppesen DataPlan, Inc., 563 F.3d 992, 1003 (9th Cir. 2009). 6 Ibid at 1003-04 (citations omitted).


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The Case of Binyam Mohamed Rachel Fleetwood Binyam Mohamed, a British national born in Ethiopia, returned to the United Kingdom on 23 February 2009 after having spent almost seven years in custody in Pakistan, Morocco and Guantánamo Bay in Cuba having been suspected of terrorism offences.

British intelligence sources. Documents submitted in the High Court hearings in the UK show that an officer from MI5, the British intelligence agency, visited Morocco three times but no detailed information on these visits is available.

Legal challenges surrounding the circumstances of his case are continuing in both the courts of England and Wales, and in the USA.

Mohamed’s testimony details that during his time in detention in Morocco, he was subjected to torture by his captors, including having his genitals cut with a razor blade.1

In the former, an on-going case before the High Court and the Court of Appeal has been focused on the disclosure of evidence contained in documents held by the UK Government which it claimed it could not release for reasons of risking national security and damaging relations with the USA. Cases in the USA have been focused predominantly on two different areas: the first a habeas corpus claim challenging the legality of Mohamed’s detention, the second a civil claim against a subsidiary of Boeing, Jeppesen Dataplan Inc, which allegedly arranged the rendition flights which took Mohamed, and others, to Guantánamo Bay. These cases reveal the challenges and complexities of the different approaches which aim to seek legal redress for violations resulting from the practice of extraordinary rendition. Background Binyam Mohamed was arrested in Karachi, Pakistan in April 2002, after he attempted to use a false passport to get on a flight back to London. After a three month detention in a Pakistani prison, in July 2002 he was flown to Morocco, and whilst there was questioned regarding information that he claims could only have come from

Mohamed was then transferred onto Kabul, Afghanistan in January 2004 and then to Guantánamo Bay, Cuba in September 2004. In August 2007 the UK Government began to request that Mohamed was returned to the UK. In May 2008 Mohamed was charged in the USA with offences of conspiracy and allegations of involvement with al Qaida to commit offences relating to terrorism. These charges were triable by a Military Commission established for the purpose. However, the charges were dropped on 21 October 2008, possibly due to the identification of procedural problems with the Military Commission process.2 The Chief Prosecutor at Guantánamo has reserved the right to re-charge and it is therefore possible that Mohamed may be called to face trial before a Military Commission in the future. Disclosure of Evidence and the Secretary of State for Foreign and Commonwealth Affairs Judicial review proceedings were initiated in the High Court (Queen’s Bench Division) in England and Wales by Reprieve, a charity working to enforce the human rights of prisoners, on behalf of Mohamed, in relation to the claim that British intelligence sources had been involved in his

extraordinary rendition. Mohamed sought the release of documents from the UK Government relating to his case. The evidence in these documents is thought to have been statements which were used as the basis for the charges against him. He alleges he was tortured during the time the statements were taken and that accordingly the evidence is inadmissible and he could not be tried using it. The UK Government continued to restrict access to such documents by trying to limit disclosure claiming a risk to transatlantic relations and possible harm to national security. This matter has now been the subject of six judgments from the High Court and two judgments from the Court of Appeal.3 The first and second judgments, in August 2008, ordered that the UK Government had a duty to disclose 42 documents to Mohamed and his legal team.4 Parts of these judgments were redacted. The Secretary of State for Foreign and Commonwealth Affairs (‘the Secretary of State’) claimed public interest immunity to prevent the release of the documents. The USA Government subsequently disclosed redacted versions of seven of the documents, and following a third judgment from the High Court on 22 October 2008,5 the remainder of the 42 documents were disclosed. The Court sought advice from the parties as to whether the media should be invited to comment on the matter, due to its significance to the rule of law, an unusual step which led to much media coverage of the issue in UK newspapers.


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The fourth judgment on 4 February 20096 followed the subsequent press requests for disclosure of information and held that evidence containing information relating to Mohamed’s treatment should continue to be redacted:

In short, whatever views may be held as to the continuing threat made by the Government of the United States to prevent a short summary of the treatment of BM being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life.7 Following the judgment, the Secretary of State made a statement to the House of Commons denying the threat:

It therefore was and remains my judgment that the disclosure of the intelligence documents at issue, by order of our courts and against the wishes of the US authorities, would indeed cause real and significant damage to the national security and international relations of this country… For the record, the United States authorities did not threaten to “break off” intelligence co-operation with the UK. What the United States said—and it appears in the open, public documents of this case—is that disclosure of the documents by order of our courts would be “likely to result in serious damage to US national security and could harm existing intelligence information-sharing...between our two governments”.8 It had also been noted in the judgment that the change of administration in the USA had not affected the position in relation to disclosure. It subsequently transpired that no approach to the new administration had actually been made. These factors formed the basis for Reprieve’s submission to re-open the

case before the High Court heard in April 2009. In May 2009 the High Court announced it would re-open the original judgment and on 30 July 2009 the Court delivered a revised version. On 16 October 2009 the High Court delivered the fifth judgment in the case,9 ordering that seven redacted paragraphs of the original judgment should be made public:

We have therefore concluded that, as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs.10 A sixth judgment from the High Court on 19 November 2009 released details of two of the paragraphs and ordered four more from the fifth ruling to be made available.11 The Secretary of State appealed against the fifth and sixth judgments. The appeal was heard in December 2009. The Foreign Office subsequently agreed to the release of three paragraphs from the judgment ‘which appear to acknowledge that Mr Mohamed was interrogated using controversial methods that have already been made public – and condemned – by the Obama administration’.12 On 10 February 2010, the Court of Appeal delivered a judgment dismissing the Secretary of State’s appeal and requiring the Government to publish the seven paragraphs from the original High Court judgment of August 2008.13 These paragraphs relate to the treatment of Mohamed whilst in USA custody, with the final paragraph concluding that this treatment ‘could readily be contended at the very least cruel, inhuman and degrading treatment by the United States authorities’.14 Welcomed by Reprieve and other human rights organisations,15 the full implications of this disclosure on Mohamed’s case, and on the wider issue of complicity, remain to be

determined. In a further development in the case, it transpired that the Government’s lawyer wrote a letter to the Court seeking amendments to the draft judgment to limit criticism of the security service.16 The judgment was subsequently altered. Wide media coverage of the amended judgment ensued, with the Head of the Security Services taking the rare step of writing a comment piece in a daily newspaper to respond to some of this coverage, in which he defended the security services and stated that as ‘head of the security service, I know that the reason the Government appealed against the Divisional Court judgment in the Binyam Mohammed case was not to cover up supposed British collusion in mistreatment, but in order to protect the vital intelligence relationship with America and, by extension, with other countries’.17 On 26 February 2010, the Court of Appeal held that, in the interests of the principles of open justice, the original paragraph from Lord Neuberger’s judgment should be published,18 alongside a slightly amended version which limited the reference to Mohamed’s case only. This stated that:

at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK’s involvement with the mistreatment of Mr Mohamed by US officials.19 Whilst a police investigation into the behaviour of a member of the security services who visited Mohamed in detention (referred to as Witness B in the judgments) continues, and amidst calls for a wider inquiry into the alleged complicity in torture by security services, this episode exemplifies how Mohamed’s individual case has become part of much wider political and legal issues in the UK, which, it would seem likely, are not going to be quickly resolved.


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Habeas Corpus Proceedings Reprieve has also acted for Mohamed in litigation in the USA, including military commission hearings and habeas corpus proceedings. The habeas corpus proceedings, initiated in April 2005, were brought before the United States District Court for the District of Columbia. Following the US Supreme Court ruling in Boumediene v Bush20 that foreign terror suspects have the constitutional right to challenge their detention at Guantánamo Bay. The USA has applied for Binyam Mohamed’s case to be closed as he has been released from Guantánamo, but for now the proceedings are continuing. Jeppesen Dataplan Inc Litigation has also been commenced by Mohamed, supported by Reprieve and the American Civil Liberties Union, against Jeppesen Dataplan Inc (‘Jeppesen’). Initially started in the USA, the case is based on the argument that as a subsidiary of Boeing, Jeppesen was significantly involved in the USA’s Central Intelligence Agency’s programme of extraordinary rendition, possibly invovled in the flight planning for flying detainees around the world to secret locations. The case was initially dismissed in February 2008 by the United States District Court for the Northern District of California on the grounds of national security but in April 2009 the United States Court of Appeals for the Ninth Circuit ruled that the case can go ahead, holding that there is no risk of releasing state secrets because it is not predicated on the existence of a secret agreement between the plaintiffs and the Executive.21 The USA Government appealed this decision and the appeal was held in December 2009 before an en banc panel of 11 judges of the 9th Circuit Court of Appeals.22 Reprieve also launched a claim against the UK division of Jeppesen for their part in extraordinary rendition. Jeppesen UK applied for the claim to be struck out on the grounds that

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Reprieve’s case was not strong enough. Reprieve responded by producing various documentary evidence relating to Jeppesen’s rendition complicity. Jeppesen then withdrew their strikeout application and agreed to proceed with the case, which is currently in the disclosure phase. Challenges and Conclusions The above cases brought by Mohamed exemplify the difficulties of seeking redress for extraordinary rendition. Almost eight years on since his initial arrest, Mohamed is still involved in several legal challenges in the UK and the USA to establish the facts of exactly what happened and who may be liable. The major obstacle has proved to be the continued suppression of evidence which would support Mohamed’s claims that he was detained, rendered and ill-treated in violation of the law: As Clive Stafford Smith, Director of Reprieve, stated:

It is irrational to pretend that evidence of torture should be classified as a threat to national security. Rather, it is proof of a crime committed against Binyam Mohamed, and as such it should be fully aired in a court of law. All along, the government has been trying to conflate national security with national embarrassment, nothing more, nothing less.23 As shown above, legal issues in the individual case of Binyam Mohamed concerning disclosure of evidence and complicity in torture have become part of a much larger investigation and discussion into such matters,24 and have also extended into the politics of international co-operation, causing further complication and delay to his efforts to seek redress. His case shows how the legal consequences of ‘war on terror’, and in particular, the practice of extraordinary rendition, continue to be identified. Rachel Fleetwood is Information and Publications Offi ficcer at INTERIGHTS. Th a n k s t o K a t h e r i n e O ’ S h e a a t Reprieve for her assistance with this article.

Further information about the case and the continuing litigation is available at <www.reprieve.org.uk/ binyammohamed> and <http://www. aclu.org/national-security/mohamedet-al-v-jeppesen-dataplan-inc>. 1 Details from <www.reprieve.org.uk>. 2 ‘Dropped Charges Against Guantanamo Detainees Are Evidence Of Failed Policies’, American Civil Liberties Union press statement, 21 October 2008. 3 See <http://www.judiciary.gov.uk/judgment_guidance/judgments/mohamed210808.htm>. 4 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin) and R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2100 (Admin). 5 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2519 (Admin). 6 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin). 7 Ibid, para. 107. 8 House of Commons Hansard debates, column 989, 5 February 2009. 9 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 2549 (Admin). 10 Ibid, para. 108. 11 R (B Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 2973 (Admin). 12 ‘Foreign Office backs down over Binyam Mohamed censorship’, The Telegraph, 17 December 2009. 13 Mohamed, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. 14 Ibid, Appendix, para. (x). The seven redacted paragraphs were published on the Foreign and Commonwealth Office’s website following the Court of Appeal’s judgment. See <http://www.fco.gov.uk/en /news/latest-news/?view=News&id=21733568>. 15 See, for e.g., ‘Binyam Mohamed: Torture disclosure welcomed, but full inquiry still needed’, Amnesty International press release, 10 February 2010. 16 See <http://www.guardian.co.uk/world/2010/feb/10 /binyam-mohamed-torture-letter>. 17 Evans. J., ‘Conspiracy theories aid Britain’s enemies’, The Telegraph, 11 February 2010. 18 Mohamed (R, on the application of) v The Secretary of State for Foreign and Commonwealth Affairs (Rev 1) [2010] EWCA Civ 158. 19 Para. 168 of the first draft of the judgment, quoted, ibid, para. 29. 20 No. 06-1195. 21 No. 08-15693. 22 Details from <http://www.aclu.org/national-security/mohamed-et-al-v-jeppesen-dataplan-inc>. 23 Press statement, 16 October 2009. 24 See, for e.g., Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 26 January 2010, para. 159 and Annex 2, case 18.


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Excerpts from the Joint study on global practices in relation to secret detention in the context of countering terrorism Key excerpts taken from the Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances UN, A/HRC/13/42, 26 January 2010

What is Secret Detention? Paragraph 8 [A] person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorization, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State,1 deprive persons of their liberty; where the person is not permitted any contact with the outside world (“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty hidden from the outside world, including, for example family, independent lawyers or nongovernmental organizations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee. 1 Article 2 (a) of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session, in 2001, taken note of by the General Assembly in its resolution 56/83, and applied by the International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, judgment, 26 February 2007.

Secret Detenti on and Internati onal Human Rights Law Paragraph 17 Secret detention is irreconcilable with international human rights law and international humanitarian law. It amounts to a manifold human rights violation that cannot be justified under any circumstances, including during states of emergency.

Paragraph 23 In most cases, secret detention, as it is outside any international or national legal regime, also implies that the duration of detention is not known to the detainee; it rests at the sole discretion of the authorities ordering the detention. Hence, the very nature of secret detention may result in potentially, or actually, indefinite periods of detention, which render this type of detention arbitrary on this additional ground.17 17 For example, see opinion No. 22/2004 (E/CN.4/2006/7/Add.1), on the arbitrary character of detention for an unspecified period of time.

Secret Detention and the Families of the Detainees Paragraph 16 Victims of the human rights violation of secret detention are not only the detainees themselves, but also their families who are not informed of the fate of their loved ones deprived of their rights and held solely at the mercy of their captors.

Paragraph 292(c) All steps necessary to ensure that the immediate families of those detained are informed of their relatives’ capture, location, legal status, and condition of health should be taken in a timely manner.

The Purpose of Secret Detention Paragraph 24 Secret detention outside the protection of the law is often resorted to with the purpose of depriving the detainee of the rights that he or she would otherwise enjoy as a person charged with a criminal offence, namely the right to a fair trial…

Paragraph 289 [A]s many of the interviews and cases included in the present study have illustrated, the very purpose of secret detention was to facilitate and, ultimately cover up torture and inhuman and de-grading treatment used either to obtain information or to silence people. While in some cases, elaborate rules were put in place authorizing “enhanced” techniques that violate international standards of human rights and humanitarian law, most of the time secret detention was used as a kind of defence shield to avoid any scrutiny and control – and make it impossible to learn about treatment and conditions during detention.

Secret Detentions in the Past Paragraph 59 [S]ecret detention in the context of counter-terrorism is not a new phenomenon. Striking similarities can be identified between security measures in the 1970s and 1980s in the context of Latin America, but also other regions, such as northern Africa and South-East Asia, on the one hand, and the counter-terrorism measures adopted worldwide since 11 September 2001, on the other. The methods used then, as now, consist of, inter alia, broad emergency laws, the enhanced role of military and special courts, the


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practice of torture and/or ill-treatment, kidnappings (renditions), enforced disappearances and notably secret detention.

The USA Practice of Secret Detention Paragraph 102 The secret detention policy took many forms. The CIA established its own secret detention facilities to interrogate so-called ‘High Value Detainees.’ It asked partners with poor human rights records to secretly detain and interrogate persons on its behalf. When the conflicts in Afghanistan and Iraq started, the United States secretly held persons in battlefield detention sites for prolonged periods of time.

Paragraphs. 282-283 The evidence gathered by the four experts for the present study clearly show that many States, referring to concerns relating to national security – often perceived or presented as unprecedented emergencies or threats – resort to secret detention. Doing so effectively means taking detainees outside the legal framework and rendering meaningless safeguards contained in international instruments, most importantly habeas corpus. The most disturbing consequence of secret detention is, as many of the experts’ interlocutors pointed out, the complete arbitrariness of the situation, together with the uncertainty about the duration of the secret detention– the feeling that there is no way the individual can re-gain control of his/her life.

Paragraph 106 [The report of the International Red Cross transmitted on 14 February 2007] details the treatment that most of the fourteen [High Value Detainees] described to them during individual interviews and concluded that: beatings, kicking, confinement in a box, forcible shaving, threats, sleep deprivation, deprivation/restriction on food provision, stress positions,

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exposure to cold temperatures/cold water, suffocation by water, etc. occurred. It stresses that for the entire detention periods, which ranged from 16 months to more than 3 and a half years, all these persons were held in solitary confinement and incommunicado detention. It noted that “They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards.”180 The ICRC concluded that “twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological illtreatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regime. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization. The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly, or in combination, constituted torture. In addition, many other elements of the Ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.”181 180 ICRC report on the treatment of fourteen “High Value Detainees” in CIA custody transmitted on 14 February 2007, pp 7, 8 http://www.nybooks.com/icrcreport.pdf 181 ibid. p. 26;

Responsibility of States for Complicity in Torture and Secret Detention Paragraphs 39 and 40 Similarly, the Convention against Torture and other cruel, inhuman or degrading treatment or punishment not only expressly bans torture, but in its article 4, paragraph 1, it also implicitly prohibits complicity in acts of torture as it requires each State party to ensure that all acts of torture, including those acts by any person that

constitute complicity or participation in torture, are criminal offences under its criminal law. This approach has been supported by the Committee against Torture in its jurisprudence.38 In particular, the Committee considered complicity to include acts that amount to instigation, incitement, superior order and instruction, consent, acquiescence and concealment.39 A State would thus also be responsible when it was aware of the risk of torture and ill-treatment, or ought to have been aware of the risk, inherently associated with the establishment or operation of such a facility or a given transfer to the facility, and did not take reasonable steps to prevent it; or when the State received claims that someone had been subjected to torture or other ill-treatment, or an enforced disappearance, or otherwise received information suggesting that such acts may have taken place but failed to have the claims impartially investigated.40 38 CAT/C/SR.105 39 Ibid; see also Official Records of the General Assembly, Forty-eight Session, supplement No. 44 (A/48/44). 40 Supra at note 3 [Note 3: This policy was apparently not strictly followed at the detention facility at the United States airbase at Kandahar, Afghanistan, according to the testimony of Murat Kurnaz, see annex, infra at XXX].

Obligations of States in Respect of Detention and Transfer Proceedings Paragraph 47 [T]he right to habeas corpus, the presumption of innocence and minimum fair trial guarantees, as well as the prohibition of unacknowledged detention, must be respected even in times of emergency, including armed conflict.

Paragraph 292(b) Safeguards for persons deprived of their liberty should be fully respected. No undue restrictions on these safeguards under counter-terrorism or emergency legislation are permissible. In particular, effective habeas corpus reviews by independent judicial bodies are central to ensuring respect for the


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right to personal liberty. Therefore domestic legislative frameworks should not allow for any exceptions from habeas corpus, operating independently from the detaining authority and from the place and form of deprivation of liberty. The study has shown that judicial bodies play a crucial role in protecting people against secret detention. The law should foresee penalties for officials who refuse to disclose relevant information during habeas corpus proceedings.

Intelligence Agencies Paragraph 286 In many contexts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions. Many times, although legislation does not authorize intelligence bodies to detain persons, they do so, sometimes for prolonged periods. In such situations, there are either no oversight and accountability mechanisms at all, or they are severely restricted, with limited powers and hence ineffective.

Paragraph 292(g) Transfers or the facilitation of transfers from one State to the custody of authorities of another State must be carried out under judicial supervision and in line with international standards. The principle of nonrefoulement of persons to countries where they would be at risk of torture or other inhuman, cruel or degrading treatment must be honoured.

Paragraph 282(d) Any action by intelligence services should be governed by law, which in turn should be in conformity with international norms. To ensure accountability in intelligence cooperation, truly independent intelligence review and oversight mechanisms should be established and enhanced. Such mechanisms should have access to any information, including sensitive information. They should be mandated to undertake reviews and investigate upon their initiative, and to make public reports.

Use of Diplomatic Assurances Paragraph 43 [T]he risk of arbitrary detention in the country of destination, which includes secret detention, should prohibit the transfer of a person into the jurisdiction of the receiving State as well.44 Diplomatic assurances from the receiving State for the purpose of overcoming the obstacle of the nonrefoulement principle do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of nonrefoulement.45 44 A/HRC/4/40, para. 47. 45 General Assembly resolution 63/166, para. 15; Human Rights Council resolution 8/8, para. 6 (d). See also A/HRC/4/40, paras. 52-56 and HRC, E/CN.4/2006/6.

E m e r g e n c y S it u a t io n s a n d S e c r e t Detention Paragraph 285 States of emergency, international wars and fights against terrorism – often framed in vaguely defined legal provisions – constitute an “enabling environment” for secret detention. As in the past, extraordinary powers are today conferred on authorities, including armed forces, lawenforcement bodies and/or intelligence agencies, under states of emergency or global war paradigms without or with very restricted control mechanisms by parliaments or judicial bodies. This thus renders ineffective many, or all, of the safeguards contained in criminal law and required by international human rights law. In some States, protracted states of emergency and broadly defined conflicts against vaguely conceived

enemies, have tended to turn exceptional, temporary rules into the norm.

Redress and Accountability for Secret Detention Paragraph 291 Although many victims feel that the secret detention has “stolen” years of their lives (the experts learned about one anonymous case of 30 years) and left indelible traces, often in terms of loss of their jobs and frequently their health, they almost never received rehabilitation or compensation.

Paragraph 292(e) Institutions strictly independent from those which have been alleged of having been involved in secret detention should promptly investigate any allegations of secret detention and “extraordinary rendition”. Those individuals who are found to have participated in secretly detaining persons and any unlawful acts perpetrated during such detention without delay, including their superiors if they ordered, encouraged or consented to secret detentions should be prosecuted and where found guilty given sentences commensurate with the gravity of the acts perpetrated.

Paragraph 292(h) Victims of secret detention should be provided with judicial remedies and reparation in accordance with relevant international norms. These international standards recognize the right of victims to adequate, effective and prompt reparation which should be proportionate to the gravity of the violations and the harm suffered. As families of disappeared persons have been recognized as victims under international law, they should also benefit from rehabilitation and compensation.


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INTERIGHTS Bulletin Volume 16 Number 1 2010

Subscribe to the INTERIGHTS Bulletin The Bulletin is INTERIGHTS’ flagship journal containing substantive articles on issues of international human rights law, and news and comment on significant developments. It also features an international law reports section which contains summaries of major recent human rights decisions from different international courts and tribunals. Subscriptions Two issues are published each year. There are four issues per volume. Subscription rate per volume: Organisations: £48 Individuals: £36 Students: £24 Payment accepted by Sterling cheque or bank transfer. PDF versions of past issues of the Bulletin are available on our website at <http://www.interights.org/bulletin/index.htm>. You may also be interested in other publications from INTERIGHTS: The Commonwealth Human Rights Law Digest is a key source for comparative human rights jurisprudence from across the Commonwealth. The Digest is a subscription publication produced twice yearly which contains approximately 50 case summaries per edition of significant human rights decisions. A wide range of issues are covered, including INTERIGHTS’ main areas of focus: economic and social rights. equality, and security and the rule of law. INTERIGHTS also publishes a free monthly email bulletin, the CommonwealthNet, which contains approximately 20 brief summaries of recent significant human rights judgments from around the common law world with links to full text decisions. In addition to these publications, INTERIGHTS hosts two free searchable databases on its website, the International Human Rights Law Database and the Commonwealth Human Rights Law Database. These contain over 2000 summaries of significant human rights cases from domestic, regional and international courts and tribunals. New cases are regularly added to the databases. See <http://www.interights.org/database-search/index.htm> for further details. To subscribe to any of the above publications or for further information please contact: Rachel Fleetwood, Information and Publications Officer INTERIGHTS, Lancaster House, 33 Islington High Street, London N1 9LH, UK Telephone +44 (0)20 7843 0496 Email rfleetwood@interights.org


INTERIGHTS

Bulletin

interights Lancaster House 33 Islington High Street London N1 9LH, UK Tel: +44 (0)20 7278 3230 Fax: +44 (0)20 7278 4334 E-mail: ir@interights.org Website: www.interights.org

INTERIGHTS provides leadership and support in the legal protection of human rights internationally. It works to ensure that human rights standards are protected and promoted effectively in domestic courts and before regional and international bodies, contributing to the development of a cumulative and progressive interpretation of international human rights law. Its three main working methods, which are mutually reinforcing, are: • Providing expertise and support in strategic human rights litigation in priority thematic areas and other issues of particular regional significance • Building legal capacity of lawyers and judges through targeted training in human rights law, internships and through collaborative litigation efforts with local partners • Disseminating practical legal information that enhances the use of human rights law and practice The thematic areas it tackles, taking into account shifting areas of threat and new opportunities for jurisprudential development, are: • Economic and social rights • Equality • Security and the rule of law It works regionally in Africa, Europe (with a focus on South Eastern, Central and Eastern Europe and the former Soviet Union), the Middle East and North Africa (MENA) and South Asia. INTERIGHTS holds consultative status with the United Nations’ Economic and Social Council, the Council of Europe and the African Commission on Human and Peoples’ Rights. It is accredited with the Commonwealth Secretariat and is authorised to present collective complaints under the European Social Charter. INTERIGHTS is a registered charity in the UK (charity number 292357) and a company limited by guarantee (incorporation number 1927581).


INTERIGHTS Bulletin Volume 16 Number 1