The importance of European court’s ruling against extraordinary rendition

It’s the first time a court has expressly found that the CIA’s extraordinary programme constituted torture.

Khaled el-Masri
Although CIA officials realised that el-Masri had been mistaken for someone else soon after his transfer to Afghanistan, they failed to correct the error [Source says "dapd"?????]

In a recent judgment, the Grand Chamber of the European Court for Human Rights (ECHR) concluded that German citizen Khaled el-Masri had been subjected to torture, unlawful detention and other abuses in connection with the CIA’s “extraordinary rendition” programme. 

The case, El-Masri v The Former Yugolsav Republic of Macedonia, not only represents an important judicial critique of the CIA programme, which led to the enforced disappearance of numerous individuals after 9/11, but also underscores the failure of US courts to provide a remedy for the same human rights violations. 

The basic facts of el-Masri’s case have previously been described in accounts of the extraordinary rendition programme, including the 2006 Council of Europe report (compiled by Swiss Senator Dick Marty). In brief, el-Masri was seized while travelling by bus across the Serbian-Macedonian border based on suspicion of terrorism. 

Macedonian officials took el-Masri to a hotel in Skopje, where they subjected him to abuse – including holding a gun to his head – during three weeks of incommunicado interrogation. El-Masri was then handed over to a CIA rendition team, who stripped, beat and sodomised him with a suppository before flying him – hooded and shackled – to a secret CIA prison in Afghanistan known as the Salt Pit.  

El-Masri remained in incommunicado detention at the Salt Pit for four months. Although CIA officials realised that el-Masri had been mistaken for someone else soon after his transfer to Afghanistan, they failed to correct the error. 

Violation of ‘right to be free of torture’ 

The ECHR concluded that Macedonia violated el-Masri’s right to be free of torture and other inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (“the Convention”); his right to be free from arbitrary detention under Article 5 of the Convention; and his right to respect for his private and family life under Article 8 of the Convention. 

The court found Macedonia liable not only for its mistreatment of el-Masri, but also for its failure to carry out an effective investigation after the fact. It directed that Macedonia pay el-Masri 60,000 euros in compensation. 

The ECHR’s decision is important for several reasons. It represents the first time a court has expressly found that the CIA’s extraordinary programme constituted torture. The decision, moreover, reaffirms that torture can occur without direct physical assault, based on what the court describes as “the cumulative and acute psychological effects of anguish and stress” intentionally used to break a person’s will.   

 European court backs CIA rendition victim

The decision also affirms a broad conception of state responsibility. Macedonia, the court concluded, should have known there was a substantial risk that el-Masri would have been illegally detained and abused if transferred to the CIA. Indeed, it acknowledged that Macedonia was effectively acting at the direction of the United States. 

The ruling thus rejects the notion that liability may be evaded if one country (here, the US) solicits the assistance of another country (here, Macedonia) by engaging in proxy detention and extrajudicial transfers. In doing so, it undercuts the modus operandi of extraordinary rendition, where the US relied on other nations to assist it in circumventing legal rules. 

The decision further demonstrates why enforced disappearance marks such a grave threat to human rights. As the court explained, enforced disappearance precludes the “[p]rompt judicial intervention [that] may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees” contained in the Convention. 

The ECHR’s ruling contrasts sharply with the approach of US courts. El-Masri had previously brought a civil action against CIA officials responsible for his mistreatment in federal court in the United States. The US Court of Appeals for the Fourth Circuit, however, upheld the dismissal of the action pursuant to the state secrets privilege, thus precluding any judicial determination of el-Masri’s underlying claims of abuse.  

Flawed reasoning of US courts

The appeals court concluded that because of the sensitive nature of the information involved, a judge could not adjudicate el-Masri’s claims of rendition, torture and unlawful detention without jeopardising national security. The judiciary, it explained, is “ill-equipped” to evaluate the consequences of the disclosure of intelligence information and should accordingly defer to the expertise of the executive branch, even where invocations of secrecy have the effect of shielding the executive’s own misconduct from scrutiny. 

In the US litigation, the judiciary thus rendered el-Masri’s right to a remedy for egregious human rights violations wholly subordinate to the government’s sweeping claims of secrecy. It did so, moreover, even though the CIA’s rendition programme – including its involvement of foreign partners such as Macedonia – was a matter of public record. Other US courts have similarly failed to afford a remedy to other victims of extraordinary rendition, finding that they could not adjudicate the claimed human rights violations without jeopardizing national security. 

In the ECHR litigation, Macedonia did not invoke state secrecy as a basis for dismissing the suit. But even if it had, the ECHR would have rejected the type of argument accepted by US courts: that because the case may involve some sensitive national security information, it warrants dismissal of the entire action. 

As the ECHR noted in a prior case involving human rights violations in Northern Ireland, constraints imposed by national security cannot restrict the exercise of a right in such a manner that the very essence of the right is negated. The ECHR instead seeks to balance an individual’s right to redress with the government’s legitimate claims of security to allow the action to go forward so that victims of torture and other grave human rights violations are not left without a forum for their claims. 

The ECHR’s decision thus not only highlights the flawed reasoning of US courts in denying victims of post-9/11 detention policies the opportunity for justice, but also underscores the importance of a pluralistic legal structure that provides other avenues for remedying human rights violations when one nation’s courts refuse to prevent impunity. 

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System. 

Follow him on Twitter: @JonathanHafetz