By
Rory O'Connell
On 24 July the
European Court of Human Rights released two important Chamber judgments: Al Nashiri and Husayn (Abu Zubaydah) v Poland (applications 28761/11 and 7511/13). While Poland is the respondent state, the focus of the judgments is on detailing the profound abrogation of fundamental human-rights norms during the US-led global “war on terror”, announced in the aftermath of the September 2001 attacks on New York and the Pentagon.
Modern human-rights law protects a range of civil, cultural, economic, social and political rights. Most of the rights in the international system are subject to various qualifications: they can be limited to protect a legitimate public interest or subjected to special limits in times of emergency. There are few absolutes in this system but one remains: the prohibition on torture. The language used in international treaties permits no exception, as article 3 of the European Convention on Human Rights exemplifies:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
While many rights are subject to exceptions, balancing, proportionate restrictions, such language does not appear in the texts on the prohibition of torture. Yet the unimaginable attacks on “9/11” provoked an unthinkable reaction—a determined effort by some democratic governments, most notably that of the US, to dilute the absolute prohibition on torture.
Still held
In the wake of “9/11”, the US government created a programme for the capture and interrogation of “high-value detainees” (HVD) in the “war on terror”. The applicants in these cases are two such detainees, alleged to be involved with the al-Qaeda network. Both are still held by the US in Guantanamo, more than a decade after their original detention.
Abu Zubaydah was alleged to be a leading member al-Qaeda when he was arrested in Pakistan in 2002, during an operation in which he was seriously wounded. His medical condition and mental health are reported to be extremely poor. Al Nashiri was captured in Dubai in 2002. He is accused of involvement in attacks including that on the USS Cole. He is facing trial, and a possible death sentence, in the US. In late 2002 and for most of 2003, the two men were detained at a secret facility in Poland.
Both were subjected to the HVD regime of the Central Intelligence Agency, details of which are catalogued in the documents, reports and news media canvassed by the court in its judgments. While much of this was known, as my colleague Fionnuala Ní Aoláin says, there is value in the
“judicial articulation” of this process. Much of the often chilling information comes from a CIA background paper detailing the interrogation techniques.
The detainees were transported in jets operated by Jeppeson, a subsidiary of Boeing. They were carried shackled, blindfolded and hooded, not knowing where they were going. The detentions were unacknowledged, the details of the prisoners were kept secret (one expert says they were treated as “cargo”), and the flight plans were disguised. The flights criss-crossed a “spider’s web” of destinations including Morocco, Thailand and several European democracies, such as Poland, Romania and Lithuania. The creation of this network dates to the initial stages of the “war on terror”.
“Black hole”
The aim of the system of secret detention and transport was to maintain these detainees incommunicado in undisclosed locations where the rule of law—be it US law or international law—could not reach. The Guantanamo version of this was labelled a “legal black hole” by the UK judge Lord Steyn but these cases address such a black hole on the territory of a European democracy.
A CIA document published in 2009 and discussed in the case (Al Nashiri, paragraph 62) said:
Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee’s resistance posture. The goal of interrogation was to create a state of learned helplessness and dependence.
The document described the processes involved clinically. Detention conditions included the use of white noise and constant lighting to disorient the detainee and ensure better security. “Conditioning techniques”—nudity, sleep deprivation and dietary manipulation—were intended to convince the detainee that he had “no control over basic human needs”. Sleep deprivation was achieved by vertically shackling the detainee, provided with a diaper for sanitary purposes.
The next stage was the application of “corrective techniques”—described as the insult slap, the abdominal slap, the facial hold and the attention grasp. Finally, the “coercive techniques” consisted of walling (being thrown against a flexible false wall), water-dousing, use of stress positions, wall-standing and cramped confinement in a box.
These “enhanced interrogation techniques” were authorised for use by the CIA interrogators. Al Nashiri was also subject to unauthorised techniques: use of a stiff brush to bathe him, blowing of smoke in his face, standing on his shackles and mock execution involving a handgun and a power drill. Both applicants were subjected to waterboarding.
Complicit
The European Court of Human Rights can hear cases brought by persons against a state party to the European Convention on Human Rights. The US is not such a state and so is not the official respondent in these cases. That is Poland—and the European court found that the Polish state was complicit in the system of secret prisons and torture, even if none of its officials had actively participated in the interrogations.
The US had operated a secret prison near a Polish airport. The procedures for landing the planes and transporting the prisoners were intended to ensure that no Polish national would be a witness. But they could not have been realised without the co-operation of senior Polish officials and military intelligence (the CIA preferred to work with military-intelligence services, as these were less likely to undergo civilian oversight).
The court pulls no punches in its characterisation of the treatment. The administration of George W Bush had notoriously sought to equivocate on the definition of torture. The elaborate detailing of “enhanced interrogation techniques” was meant to create a category of tactics that would not fall within the prohibition on torture. The European court had however little hesitation in finding that the techniques met the level of severity required for a finding of torture and that they were inflicted for definite purposes.
The court also found that the Polish authorities had failed to investigate the allegations of torture promptly or effectively. A Polish parliamentary committee had considered the allegations during a closed inquiry, which produced no statement other than a denial of anything “untoward” (Al Nashiri, para 128). A more elaborate inquiry by the prosecutor’s office had been plagued by delay and had not led to any prosecutions—or, indeed, any identification of suspects. The involvement in incommunicado detention was also a breach of the right to liberty (convention article 5) and the right to respect for private and family life (article 8).
The transfer of the applicants outside the territory of Poland also violated article 6, the right to a fair trial. A convention state may not permit the removal of a person to another state, where this would result in a flagrant breach of article 6. In the context of the process for trying persons in Guantanamo—before a military commission, itself in breach of US law and where evidence obtained by torture might be admissible—removal to face such a “trial” would constitute such a contravention.
The removal of Al Nashiri violated the prohibition on the death penalty. His trial is due to begin in September; the judgment requires Poland to use all its influence to prevent capital punishment were he to face conviction.
The court also found that Poland had failed to co-operate with its hearing. It had requested information and offered guarantees of confidentiality. It noted that it had a long history of dealing with sensitive information in cases involving national security and that as a court it was entitled to be master of its own procedures.
In light of the numerous, serious violations the court ordered Poland to pay €100,000 to each applicant in respect of non-pecuniary damage.
Rights reaffirmed
The court’s ruling is welcome for many reasons. It unequivocally reaffirms the importance of the rights to freedom from torture, to personal liberty, to a fair trial and privacy. It condemns torture, disappearances and secret prisons.
Given the secrecy of the programme, the reluctance of the Polish state to co-operate fully and the isolation of the applicants incarcerated in Guantanamo, the court might have had difficulties in determining the facts. It however rose to this challenge, relying on the wealth of information in a series of reports—US, European (the Marty reports of 2007 and 2011 to the Parliamentary Assembly of the Council of Europe, the Fava and Flautre reports of the European Parliament), media and NGO—to make reasonable assumptions and to evidence its conclusions.
The court has not only restated the absolute prohibition of torture but has also made an important contribution to defending the public’s right to know. And more may yet emerge. This week sees the release of the summary of a
US Senate report on the CIA programme. There is a related case before the European court against Romania (application 33234/12). And there are continuing
unanswered questions about the role of the United Kingdom in the “war on terror”.
Reprinted with permission from openDemocracy.
