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Anti-terrorism and human rights

New Europe, 31/07/2014

If you think that democracies can harmlessly forfeit human rights in the fight against terrorism, you should think twice. On 24 July, the European Court of Human Rights, the highest judicial body protecting the rights of individuals in 47 European countries, delivered two judgments which reaffirmed that absolute human rights norms, such as the prohibition of torture, must be upheld in all circumstances.

The European judges were asked to determine whether Poland had violated its human rights obligations in relation to the conditions of detention, interrogation and transfer to the USA of two terrorist suspects currently held in Guantanamo, Abd Al Rahim Hussayn Muhammad Al Nashiri and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah.

The 7 judges unanimously found that Poland breached the European Convention on Human Rights on all these counts and on the failure to conduct effective investigations into the applicants’ allegations. Indeed, the investigations only started a full three years after credible information emerged and they have been dragging on for five years, mainly because of undue political interference in the work of the prosecutors and the unwillingness of the USA to co-operate with the investigations. Moreover, the judges condemned Poland’s refusal to comply with the Court’s requests for the submission of evidence and required the Polish authorities to obtain assurances from the USA that Mr Al Nashiri will not be subjected to the death penalty.

This is not the first time that the Court exposes the lawlessness that has characterised the sordid rendition programme carried out by the CIA in Europe between 2002 and 2006, which involved abduction, detention and ill-treatment of suspected terrorists. Already in December 2012 the Court held “the former Yugoslav Republic of Macedonia” responsible for the torture of Khalid El Masri 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.

The significance of these judgments has a bearing well beyond the two countries directly concerned. At least twenty-five European countries have co-operated in the CIA rendition programme, but only very few of them have established some sort of accountability.

In the majority, little has been achieved. In Lithuania, the Prosecutor General closed in 2011 a year-long criminal inquiry, without pressing any charges. After international pressure and a national court decision, a pre-trial investigation was eventually re-opened last February.

The Romanian parliament has conducted only a superficial inquiry. Both it and the government have constantly denied the existence of any secret detention, in spite of evidence to the contrary.

In the UK, an official inquiry published last December raised several questions about the country’s role in the US-led war on terror. Others, including Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, the Czech Republic, Georgia, Greece, Iceland, Ireland, Portugal, Spain, and Turkey still have to fully account for their co-operation.

If the El Masri, Al Nashiri and Abu Zubaydah judgments oblige “the former Yugoslav Republic of Macedonia” and Poland to implement specific measures, they should also drive all governments to finally remove the cloak of secrecy they have drawn over their responsibilities. At the same time, these judgments provide two broader lessons for all democracies engaged in the fight against terrorism.

The first is that Governments must not abuse the state secrets privilege to hamper judiciary and parliamentary initiatives established to determine responsibility for unlawful counter-terrorism acts. Though secrecy is sometimes necessary to protect the State, it should never serve as an excuse to conceal serious human rights violations.

The second lesson is that forfeiting human rights in the fight against terrorism is a grave mistake and an ineffective measure with far-reaching consequences, as it breeds contempt for the rule of law, a fundamental pillar of democracy and the values we stand for.

The US and European governments should make good use of these lessons. A first step would be to ensure that security agencies operate under independent scrutiny and judicial review. The next one should be to make anti-terror policies and actions more human-rights compliant.

By doing so, state security is not reduced. On the contrary, governments would increase their credibility among the public and weaken support for anti-democratic causes if they showed as much resolve in safeguarding human rights as in fighting terrorism.

Nils Muižnieks