On December 3, attorneys for two Guantánamo detainees argued before the European Court of Human Rights that Poland bears responsibility for the torture, disappearance, and unlawful transfer of CIA detainees on its territory as part of the U.S. rendition and secret detention program in 2002 and 2003. The hearing was extraordinary in that it consisted of a court addressing, as a substantive matter, the U.S. torture and rendition program—something that U.S. courts have refused to do, relying on versions of the state secrets doctrine to dismiss a series of cases brought in federal court. But the hearing was also ordinary in the sense that the substantive violations inherent in the rendition program are at the very core of the abuses the European Convention for the Protection of Human Rights and Fundamental Freedoms was written to prohibit. Truly novel is the fact that the Court will determine whether Poland is legally responsible for what the applicants’ attorneys describe as its role in “aiding, abetting, and facilitating” the torture and rendition that the CIA undertook in the black site it ran on Polish territory. Clear findings against Poland would begin to dismantle the legal edifice that the U.S. relied upon in constructing the extraordinary rendition and secret detention program. By holding individuals in secret prisons outside of its territory, the U.S. government sought to keep detainees beyond the protection of U.S. law and away from the reach of judicial oversight.
The applicants in the paired cases are Abd al-Rahim Hussayn Muhammed al-Nashiri and Zayn al-Abidin Muhammad Husayn (Abu Zubaydah), who were both held in a series of CIA black sites between 2002 and 2006, then transferred to Guantánamo with other CIA “high-value detainees” (HVDs). Al-Nashiri faces death penalty-eligible charges for his alleged role in the bombing of the U.S.S. Cole; his military trial is set to begin in September 2014. Abu Zubaydah has not been charged, and the U.S. government has in recent years backed away from its most serious claims concerning his role in al-Qaeda. Both men were considered to be HVDs by the Bush Administration and together were subjected to the full range of “enhanced interrogation techniques” used by the CIA in its secret prison system, including waterboarding, mock execution, beatings, confinement in extremely small spaces, “stress” positions, exposure to extreme cold, and psychological torture. The facts submitted by the attorneys in these cases are for the most part not based on the applicants’ own testimony, since the two men are held under the strictest secrecy arrangements: their own words and memories—because they concern CIA techniques and methods—are considered by the U.S. government to reveal classified information. Indeed, apart from some passages drawn from released and leaked documents that quote the applicants, the filings in these cases are not based on direct testimony by the applicants. Instead, their attorneys have had to rely on the evidence pieced together by European and UN investigations, leaked ICRC accounts, NGO reports, and media investigations concerning the rendition program.
Relying on this evidence, the detainees’ attorneys, Amrit Singh, Mikolaj Pietrzak, Padraig Hughes, and Bartlomiej Jankowski argued forcefully that Poland was not only aware of the abusive activities taking place on its territory but actively assisted and facilitated the creation and functioning of the “black site” at Stare Kiejkuty, Poland. Under the European Convention, states have a range of affirmative obligations, including requirements to prevent torture and ill-treatment on their territory, to investigate reports of such activities, and to hold to account those responsible for such activities. The applicants allege that Poland has failed in these obligations, despite officially granting the applicants “victim” status in relation to a criminal investigation of the CIA program that began in 2008. This investigation has foundered, the applicants’ attorneys argue, dragging on for years without significant outcomes. During the hearing on December 3, Poland refused to confirm or deny the existence of a CIA prison on its territory. Instead, the government relied heavily on the principle of subsidiarity: Poland argued that the Court should withhold action on the case while its national investigation into the rendition program proceeds. While Poland recognized that the criminal investigation has been pending for some time, the state denied a lack of progress, pointing to volumes of documents and dozens of interviews its prosecutors have conducted. The judges focused their questions on the status and nature of the Polish investigation. The bench appeared well aware that last month, the UN Committee Against Torture criticized Poland for its slow and secretive investigation.
This case is in many ways the tip of an iceberg. More than 50 countries have been identified as having played some role in the Bush-era rendition and secret detention program. A handful have been identified as hosts for secret black site prisons. Cases similar to these are pending in the European Court against Romania and Lithuania, and in the African Commission on Human and Peoples’ Rights against Djibouti. While the exact contours and depth of states’ responsibility may be up for debate, the European Court is unlikely to allow Poland to escape liability, given the extensive factual evidence and the clarity and forcefulness of the Court’s jurisprudence on torture, incommunicado detention, and refoulement. In 2012, the European Court held Macedonia responsible for its unlawful detention of Khaled El-Masri, a German citizen who Macedonia held briefly without charge before turning him over to the CIA. The Court found Macedonia liable for the unlawful detention, and for facilitating and assisting in the CIA rendition team’s torture of El-Masri both on the tarmac in Skopje and in a CIA prison in Afghanistan.
As states that cooperated with the United States in its torture and rendition program face responsibility for their complicity, will the full truth emerge about the U.S. program? During the hearing against Poland on December 3, Ben Emmerson, UN Special Rapporteur on Human Rights and Counter-Terrorism, made an intervention on this issue. Speaking on behalf of several UN human rights experts, he urged the Court to recognize that the emerging right to truth requires disclosure of the facts concerning the CIA program and the institutional failures that allowed the violations to occur. If U.S. courts will not compel such transparency, perhaps the courts of other nations will fill the vacuum.