Twelve years ago, almost three thousand people were killed by the terrorist attacks in New York and Washington. Commemorative events provide an occasion to pay respects to the innocent victims, but also to reflect on the anti-terrorist response adopted by the USA and Europe. By allowing unlawful detentions and interrogation techniques amounting to torture, this response caused further suffering and violated human rights law.
To date, governments have been unwilling to establish the truth and ensure accountability for their complicity in the unlawful programme of “extraordinary renditions” – involving abduction, detention and ill-treatment of suspected terrorists – carried out by the CIA in Europe between 2002 and 2006. In many cases, an abuse of the state secrets privilege hampered judiciary and parliamentary initiatives to determine responsibility. Though secrecy is sometimes necessary to protect the State, it should never serve as an excuse to conceal serious human rights violations
On 13 December 2012 the European Court of Human Rights shook this secret world. In its judgment El-Masri v. “the former Yugoslav Republic of Macedonia”, the first concerning the conduct of a member State in the sordid CIA programme, the Court not only held this country responsible for the torture of the applicant performed by a CIA rendition team in the presence of Macedonian officials and for inhuman and degrading treatment during his arbitrary detention. It also found that the State had failed to comply with its obligation to carry out an effective investigation into the allegations of ill-treatment and arbitrary detention, as well as to provide an effective remedy to the complainant.
In the near future the Court could further expose the lawlessness that has characterised the CIA programme if it decides to examine the complaints lodged by Abu Zubaydah against Poland and Lithuania, and by Al Nashiri against Poland and Romania. The two suspected terrorists, now held in Guantanamo, complain that these countries have failed to conduct effective investigations into the circumstances surrounding their ill-treatment, detention and transfer to the USA.
A thick veil of secrecy, leading to impunity
A detailed report published by the Open Society Justice Initiative in February 2013 reminds us that 25 European countries have co-operated with the US agency.
So far, the only country to have handed down sentences against people involved in the CIA programme is Italy, where in 2009 a criminal court convicted in absentia, twenty-three US citizens, all but one CIA agents, as well as five Italian secret service agents for the kidnapping and rendition to Egypt of a Muslim cleric, Hassan Mustafa Osama Nasr, also known as Abu Omar, from the streets of Milan in 2003.
The judiciary has also performed well in Germany and the United Kingdom. In the first case, Munich prosecutors in 2007 issued arrest warrants against thirteen CIA agents and transmitted them to Interpol. However, the German Government, pressed by its US ally, has so far refused to demand extradition. In the UK, judges have compelled the Government to award very costly compensation to sixteen people who accused the British security forces of facilitating their transfer abroad, where they had been subjected to torture. The UK Government has so far denied any liability.
Sweden too decided to pay compensation for its involvement in the extraordinary rendition of two Egyptian asylum seekers.
In all other countries, little has been achieved or even initiated.
In Poland the investigations only started a full three years after credible information emerged and have been dragging on for five years, mainly because of undue political interference in the work of the prosecutors and the unwillingness of the US to co-operate with the investigations. Concerns about the effectiveness of the investigations have been expressed on several occasions, including by the third Dick Marty report on the CIA detention and rendition programme adopted by the Council of Europe Parliamentary Assembly in 2011.
Lithuania, which now holds the Presidency of the Council of the European Union, has done much less. In 2011 the Prosecutor general closed a year-long criminal inquiry, without pressing any charges. Despite additional information provided by international human rights NGOs and a 2012 Resolution of the European Parliament calling Lithuania to reopen the criminal investigation into its involvement in the CIA programme, nothing has happened so far. Concerns about the promptness, comprehensiveness and thoroughness of the investigations were also expressed by the Committee for the Prevention of Torture in a report of 2011, in which it also pointed out that Lithuania had not provided the specific information requested to determine whether the Prosecutor had conducted the investigation in an effective manner.
In Romania, both the government and parliament (which has conducted only a superficial inquiry) have constantly denied the existence of any secret detention, in spite of reliable material provided in particular by Dick Marty’s 2007 report and the Memorandum sent by my predecessor, Thomas Hammarberg, to the Prosecutor General of Romania in March 2012.
Other countries, including Austria, Azerbaijan, Belgium, Bosnia, Croatia, Cyprus, the Czech Republic, Georgia, Greece, Iceland, Ireland, Portugal, Spain, Turkey and the United Kingdom still have to fully account for their co-operation with the unlawful US programme, in particular as concerns the use of their airspace and airports for suspected rendition flights, capture and transfer of individuals to U.S. custody and participation in interrogation, as well as knowledge of the secret detention and extraordinary rendition operations.
It is imperative to take urgent political and judicial initiatives in member States to lift the veil of secrecy Governments have drawn over their responsibilities.
In particular, Poland has to complete the investigations, make its findings public and try those responsible, even if this implicates high-level State officials.
Lithuania, Romania and the other countries that have yet to clarify their role, should ensure serious, independent and effective investigations.
Germany should pursue its requests for extradition made in 2007, while the United Kingdom should clarify its role, including by publishing Sir Peter Gibson’s report on the country’s involvement in rendition and torture operations.
European countries should not be left alone. The European Union must put its weight behind them and persuade the US to fully cooperate in the investigations, including by ensuring that relevant investigative and judicial authorities in Europe can hear Al Nashiri and Abu Zubaydah.
Finally, all Council of Europe member states must ensure that security agencies operate under independent scrutiny and judicial review.
The CIA programme of rendition and secret detention is not simply a grave political mistake: it is above all a serious violation of fundamental human rights. The continued impunity breeds contempt for democracy and the rule of law, as well as disrespect for the victims and values in whose name the fight against terrorism was carried out. It is high time to set the record straight.