Collusion with CIA rendition and the search for accountability

Collusion with CIA rendition and the search for accountability

Conference: Post-Socialist Justice After Two DecadesStockholm School of Economics in Riga - Riga, 11 October 2012

Manfred NowakProfessor of International Law and Human Rights, University of ViennaDirector, Ludwig Boltzmann Institute of Human Rights, ViennaFormer UN Special Rapporteur on Torture (2004 – 2010)

http://www.rgsl.edu.lv/

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1. Systematic Human Rights Violations by the Bush Administration in its

“War on Terror”

2. The Phenomenon of “Extraordinary Renditions”

3. Secret Places of Detention

4. Investigations by the Council of Europe and the EU

5. Joint UN Report on Secret Detention in the Context of Countering

Terrorism (2010)

6. Individual applications lodged before the ECtHR

OVERVIEW

Unlimited administrative detention of terrorism suspects (e.g. Guantánamo Bay)

„Enhanced interrogation methods“ amounting to torture on the basis of so-called Torture Memos (Jay Bybee, John Yoo, Steven G. Bradbury)

Enforced disappearences by holding suspected terrorists in secret CIA black sites and in detention by proxy

Global spiderweb of „extraordinary rendition flights“ by the CIA in violation of international aviation and human rights law

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1. Systematic Human Rights Violations by the Bush Administration in its “War on Terror”

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2. The Phenomenon of “Extraordinary Renditions”

• Different types of the “obligatory departure” of aliens:

• extradition: formal procedure whereby an individual who is suspected to have committed a criminal offence and is held in one State is transferred to another State for trial or to serve his or her sentence

• expulsion: unilateral act undertaken by a State to remove an alien whose continuing presence in its territory is contrary to the public interests of the territorial State

• deportation: act of enforcing an extradition or expulsion order

• “refoulement”: refusal of entry or removal from the territory of one State

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• rendition: not a legal term under international law: abduction and transfer of persons to the custody of other governments for the purpose of bringing them to justice

• justification? “male detentus, bene captus” (Eichmann, Carlos “the Jackal”, Öcalan)

• “extraordinary rendition”: practice of the Bush Administration to abduct and transfer suspected terrorists to other countries, usually for the purpose of subjecting them to secret detention and torture.

2. The Phenomenon of “Extraordinary Renditions” (cont’d)

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• Examples of “extraordinary renditions”:

• Boudellaa et al. v. Bosnia and Herzegovina: judgment of the Human Rights Chamber of BiH of 10 October 2002; rendition of 6 Bosnian citizens of Algerian origin from BiH to Guantánamo Bay

• Agiza v. Sweden: decision of the UN Committee against Torture of 20 May 2005; rendition of an Egyptian citizen from Sweden to Egypt

• Case of Maher Arar: Canadian citizen of Syrian origin abducted at New York’s JFK Airport and sent via Jordan to Syria

• Case of Khaled El-Masri: German citizen of Lebanese origin abducted in Macedonia and sent to Afghanistan

• Case of Abu Omar: Egyptian citizen abducted in Italy and sent via Germany to Egypt

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• Applicability of Article 13 CCPR to all forms of „obligatory departure“ of aliens:

• General Comment 15/27 of the Human Rights Committee on the Positions of Aliens

• Case law of the Human Rights Committee in Giry v. Dominican Republic, Canon Garcia v. Ecuador

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• CIA practice of “rendition flights” by using private aircraft operators

• Outsourcing as a means of avoiding responsibility and scrutiny

• Civil, State, and Military aircrafts

• Chicago Convention on International Civil Aviation

• Legal responsibilities of European Governments in respect of “rendition flights” on their territory


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3. Secret Places of Detention

• Prolonged incommunicado detention in an unknown location constitutes enforced disappearance

• Enforced disappearance is a multiple human rights violation which includes the right not to be subjected to cruel, inhuman or degrading treatment

• Prolonged enforced disappearances also may amount to torture: Decision of Human Rights Committee in El-Megreisi v. Libya

• Prohibition of “Refoulement” applicable to serious risk of enforced disappearance

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• Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe: • Dick Marty’s Information Memorandum II on alleged secret detentions in CoE member States of 22

January 2006

• Dick Marty‘s first report on alleged secret detentions and unlawful inter-state transfers of detainees in CoE member States of 7 June 2006 exposing a global „spider‘s web“ of illegal US detentions and transfers as well as Poland‘s and Romania‘s involvement therein

• second Dick Marty report on secret detentions and illegal transfers of detainees involving CoE member States of 8 June 2007 dealing with „high-value detainees“ held in CIA prisons in Poland and Romania

• Last Dick Marty report of 6 October 2011 evaluating the various judicial or parlamentary inquiries launched after his reports five years ago

• CoE Commissioner Thomas Hammarberg echoes in September 2011 Dick Marty‘s repeated calls for accountability on the part of Euoprean governments

• CPT visit to Lithuania (June 2010) questioning in the following report the promptness and thoroughness of the Lithuanian Prosecutor General’s pre-trial investigation into abuse of office, then under way, and to Romania (September 2010) questioning in the following report the absence of a judicial inquiry into the allegations of a secret CIA prison in the country

4. Investigations by the Council of Europe and the EU

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• Council of Europe Secretary General’s report under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts of 28 February 2006

• Venice Commission Opinion on the international legal obligations of CoE member states in respect of secret detention facilities and inter-state transport of prisoners of 17 March 2006

• European Parliament’s “Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners”: reports by Giovanni Claudio Fava

4. Investigations by the Council of Europe and the EU (cont’d)

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5. Joint UN Report on Secret Detention in the Context of Countering Terrorism (2010)

• September 2001: President Bush authorized the CIA to detain terrorists and set up detention facilities outside the US

• September 2006: acknowledgment by President Bush of the existence of secret CIA detention facilities; however, refusal to disclose their location.

• May 2009: Bradbury Memo stating that the CIA had taken custody of 94 detainees and had employed enhanced interrogation techniques with regard to 28 of those detainees

• Several of those 28 detainees were „high value detainees“; fourteen of them were transferred from secrect CIA custody in an undisclosed location to Guantánamo Bay

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5. Joint UN Report on Secret Detention in the Context of Countering Terrorism (2010)

Joint study covers 66 States (44 States replied to a detailed questionnaire; interviews with 30 individuals; analysis of aeronautical data, including data strings) and identified:

• Black Sites- Secret detention is irreconcilably in violation of international human

rights law, including during states of emergency and armed conflicts- Geneva Conventions, applicable to all armed conflicts, prohibit secret

detention under any circumstances- secret detention amounts to an enforced disappearance.

• Rendition Flights- Responsibility of third countries, incl. European States- Corroborates findings of earlier investigations (Council of Europe,

European Parliament, investigative journalists)

• Detention by Proxy- disregard of the principle of non-refoulement- “outsourcing” of torture

„High Value Detainee“ Progamme

Following 14 out of 28 „high value detainees“ were transferred from secret CIA custody to Guantánamo Bay in September 2006: • Abu Zubaydah (Palestinian), captured in Pakistan on 28 March 2002

• Ramzi bin al-Shibh (Yemeni), captured in Pakistan on 11 September 2002

• Abd al-Rahim al-Nashiri (Saudi), captured in the United Arab Emirates in October or November 2002

• Khalid Sheikh Mohammed (Pakistani), captured in Pakistan on 1 March 2003

• Mustafa al-Hawsawi (Saudi), captured with Khalid Sheikh Mohammed in Pakistan, on 1 March 2003

• Majid Khan (Pakistani), captured in Pakistan, on 5 March 2003

• Waleed Mohammed bin Attash (Yemeni), captured in Pakistan on 29 April 2003

• Ali Abd al-Aziz Ali (Pakistani), captured with Waleed bin Attash in Pakistan on 29 April 2003

• Mohammed Farik bin Amin (Malaysian), captured in Bangkok on 8 June 2003

• Riduan Isamuddin (Indonesian), captured in Thailand on 11 August 2003

• Mohammed Nazir bin Lep (Malaysian), captured in Thailand on 11 August 2003

• Gouled Hassan Dourad (Somali), captured in Djibouti on 4 March 2004

• Ahmed Khalfan Ghailani (Tanzanian), captured in Pakistan, on 25 July 2004

• Abu Faraj al-Libi (Libyan), captured in Pakistan, on 2 May 2005

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5. Joint UN Report on Secret Detention in the Context of Countering Terrorism (2010) (cont’d)

Situation regarding secret detention facilities – Europe

Poland: Secret detention facility run by CIA in Poland from 2002-2005; 8 high-value detainees allegedly held between 2003 and 2005 in the village of Stare Kiejkuty; Polish Intelligence Agency confirmed for 2002-2004 the landing of CIA flights (at Szymany airport and in Warmia-Mazuria province);

lack of transparency into the investigation

Follow-up: two identified victims (Abd al-Rahim al-Nashiri and Abu Zubaydah); identification of two people who tortured al-Nashiri on Polish soil; two different official investigations into these events; investigation still pending

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Romania: detainee transfers from Afghanistan and Iraq (CIA flights landed in Mihail Kogalniceanu military airfield)

Follow-up: under code name “Bright Light” small jail in Bucharest consisting of six cells (2003-2005);

However, investigation by the Committee of Enquiry of the Romanian Parliament was finalized in March 2007 by finding the allegations groundless

Lithuania: integration into the secret detention and rendition programmes in 2004; Lithuanian officials provided CIA with a building, inside riding academy in Antaviliai, where 8 terrorist suspects were held for more than a year until late 2005; 2 flights from Afghanistan to Vilnius; in November 2009 opening of investigation into the existence of a CIA secret detention on Lithuanian territory

Follow-up: criminal investigation into a secret CIA detention centre closed on 14 January 2011 due to lack of evidence

Situation regarding secret detention facilities – Europe


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• against Poland (Al Nashiri; lodged in May 2011),• Lithuania (Abu Zubaydah; lodged in October 2011), • Romania (Al Nashiri)• Italy (Nasr and Ghali; lodged in August 2009) and• the former Yugoslav Republic of Macedonia (El-Masri; lodged in July 2009)

against Poland

5. Individual applications lodged before the ECtHR

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Thank you for your attention!

Education

Collusion with CIA rendition and the search for accountability