Long awaited decisions by the European Court of Human Rights emerged last week (initially reported here) that substantially address torture and the complicity of European states in C.I.A led practices of rendering individuals to “black sites” for sustained interrogation interlaced with allegations of torture and ill-treatment once detained. In Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland the Court found breaches in both cases of Convention articles 3 (torture), 5 & 6 (liberty, security and trial), 8 (family and private life), and 13 (right to an effective remedy). In Al Nashiri, the Court further held that there had been a violation of article 2 (right to life) and 3 of the Convention taken together with article 1 of Protocol 6 (abolition of the death penalty). One of the applicants (Abu Zubaydah) is currently held at Guantanamo Bay, Cuba. The other applicant, Al-Nashiri, was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit.
While many of the facts concerning the “high-value detainee program” before the Court are to be found in the public domain, the case is significant not least because it brings high-level and detail oriented judicial scrutiny to the operation of the program. Media reports, NGO investigations, and various official leaks have exposed the extreme forms of interrogation applied to detainees. Nonetheless, there is a particular weight to judicial articulation on the form and specificity of treatment experienced by multiple detainees as a result of the rendition and interrogation practices of the C.I.A.:
“… isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.” (para 57, Abu Zubaydah)
The authentication of harms in official form has a validating effect, and undoes the sense that key actions, decisions and outcomes taken during the so called “war on terror” exist in a legal shadowland. Moreover, as with prior ECHR analysis, the attention to documenting the administrative state that functioned meticulously to enable torture underscores the degree of organization, coherence and control exercised as well as the presumed acceptability of these procedures at the time. The Court made clear, relying on earlier decisions like El-Masari, that where respondent state fails to provide evidence to counter significant factual information before it, negative inferences can be drawn unfavourable to the state.
The Court’s persistence in seeking official and other information from Polish officials and persons aware of the rendition program is notable. The Court requested various documents from the Polish government during the proceedings including an alleged agreement on the setting up and running of a secret CIA prison on Polish territory, any documents related to the setting up or running of a rendition program as well as documents related to investigations concerning rendition on Polish territory. The Polish government’s unwillingness to supply these documents got short shrift from the Court, which consistently upheld the principle that Convention rules and procedure trumped conflicting national rules:
“Having regard to the above facts, the Court finds that in the course of the relevant international inquiries the Polish authorities displayed conduct that can be characterised as denial, lack of cooperation with the inquiry bodies and marked reluctance to disclose information of the CIA rendition activities in Poland.” (para. 435, Abu Zubaydah)
Poland was found responsible under Article 1 of the Convention for the violation of rights in both cases because it had knowingly, intentionally and actively collaborated with the CIA in rendition programmes and facilitated detention and transfer to and from its territory. The Polish response to the decisions, consistent with its views throughout proceedings was that adjudication by the Court was “premature.” Given that the stalled domestic proceedings (these commenced in 2008 and struggled to gain any procedural traction as well as evidencing a variety of procedural flaws) the Court was clearly under-whelmed by the State’s optimism on the robustness of its domestic investigations.
As regards article 3 of the Convention, the findings are consistent and trenchant:
“The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.” (para. 480, Abu Zubaydah)
The Court found both procedural and substantive violations of Article 3, and expressly confirmed Poland’s responsibility:
“Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held above, on the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.
Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HDV programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory” (para 512, Abu Zubaydah).
Commentators have attributed a number of political and legal implications to these decisions. For example, the holding on Article 6, and the conclusion that the applicant’s trial before U.S. military commission would be unfair, is viewed by some as a substantial legal determination, despite the Court’s thin reasoning. Others have underscored the importance of naming the existence of such “black sites” and stressed the importance of the decision for ending impunity for the catalogue of actions taken by the C.I.A. in the aftermath of 9/11. The cases clearly add to an undulating pressure to investigate and account for the actions of military and civilian actors in the creation, execution and oversight of detention and interrogation programs put in place by the United States. International scrutiny is not going away. Rather, the European Court decisions continue to chip away at the culture of impunity that continues to prevail on detainee treatment, and stands in marked contrast to the persistent dismissal exclusion of any meaningful judicial process in the United States regarding accountability for torture and rendition.
Readers may also find it interesting that in the Court’s finding on Just Satisfaction (article 41 remedy) for the applicants, Poland is required to pay each applicant 100,000 euros in respect of non- pecuniary damage. In the case of Abu Zubaydah the applicant is to be paid EUR 30,000 in respect of costs and expenses. No claim for costs and expenses was made by Al Nashiri. In the requirements for execution of judgements the Court decided that Poland, in order to comply with its obligations under articles 2 and 3 of the Convention and article 1 of Protocol No. 6 to the Convention, was required to seek to remove, as soon as possible, the risk that Mr Al Nashiri could be subjected to the death penalty by seeking assurances from the U.S. authorities that such penalty would not be imposed on him. Many will watch that advocacy space with interest.
The judgments are not final as set out under articles 43 and 44 of the Convention. During the three-month period following delivery of the decisions, any party may request that the cases be referred to the Grand Chamber of the Court. If that request is made, a panel of five judges would consider whether the cases deserve further examination. In the event that Poland were to seek such a referral, a risky proposition based on the strength and unanimity of the decisions, the Grand Chamber would hear the case and deliver a final judgment. In the absence of a referral, these judgements are final and will be transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. More decisions on this highly sensitive issue involving other states are pending from the European Court, specifically a case against Romania involved one of the same detainees (Al-Nashiri) is likely to bring the same close scrutiny to another European state. Many will watch Poland’s positioning with interest, as well as the likely discomfort of another estimated 50 states alleged to have colluded with and supported the rendition program in multiple ways.