Lawsuit Calls on European Court to Intervene in Guantánamo Death Penalty Case

NEW YORK—The Open Society Justice Initiative is calling on Europe’s highest human rights court to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri, a Saudi national.

Al-Nashiri faces charges relating to the bombing of the USS Cole in Aden harbour in 2000 and other alleged acts. He was detained and tortured at a secret CIA prison in Poland in 2002 and 2003, before his ultimate transfer to the US military base at Guantánamo.

In an application to the European Court of Human Rights in Strasbourg, the Justice Initiative argues that Poland violated al-Nashiri’s rights under European law, and that the Court should therefore direct Poland to “use all available means at its disposal to ensure that the United States does not subject him to the death penalty”, and to seek similar intervention by Thorbjørn Jagland, Secretary General of the Council of Europe.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

The Justice Initiative says al-Nashiri now faces being given a possible death sentence by a system of US military commissions that “lack independence, impartiality and fair trial guarantees”.

“The Court must act swiftly to prevent the stain of U.S. practices of torture and the death penalty from spreading to Europe,” said Amrit Singh, senior legal officer at the Open Society Justice Initiative. “Poland’s involvement in al-Nashiri’s rendition means Europe cannot stand by silently and watch the United States subject him to the death penalty after a trial before a kangaroo court.”

The application argues that Poland violated the European Convention of Human Rights by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country. The application also argues that Poland violated al Nashiri’s and the public’s right to truth by refusing to acknowledge, effectively investigate, and disclose details relating to his case. 

“This case is an opportunity for the Strasbourg Court to make clear that, in combating terrorism, governments can and must uphold the rule of law,” said James A. Goldston, executive director of the Open Society Justice Initiative.

Al-Nashiri was captured in Dubai in 2002 by the CIA and held incommunicado and waterboarded at a secret CIA detention site in Thailand before being transferred to Poland around 5 December 2002. He was detained and tortured at a secret CIA prison in a military intelligence base in Stare Kiejkuty in northeast Poland some time between December 2002 and June 2003, not far from Szymany airport.

U.S. interrogators subjected al-Nashiri to mock executions with a power drill as he stood naked and hooded; racked a semi-automatic handgun close to his head as he sat shackled before them; held him in “standing stress positions;” and threatened to bring in his mother and sexually abuse her in front of him. Around 6 June 2003, Poland assisted the CIA in transporting him to another secret detention site outside Poland. He was eventually transferred to Guantanamo in September 2006. US military prosecutors filed terrorism and murder charges him on April 20, 2011.

Al-Nashiri is represented before the European Court by James Goldston, Amrit Singh and Rupert Skilbeck of the Justice Initiative, and Nancy Hollander of Freedman Boyd Hollander Goldberg Ives & Duncan P.A. He is represented in in Poland by advocate Miko³aj Pietrzak of the Pietrzak & Sidor law office in Warsaw, and in the United States by Lt. Commander Stephen C. Reyes, Nancy Hollander and Richard Kammen.

The Open Society Justice Initiative is also representing Khaled El-Masri in litigation pending before the European Court of Human Rights. Mr El-Masri, a German citizen, was subject to torture and abuse at a US site in Afghanistan for four months, after being seized by security officials in Macedonia in December, 2003. He was later flown back to Europe and released.