The European Court Rules: CIA Engaged in Torture of Victim of Mistaken Rendition

A key milestone in the long struggle to secure accountability of public officials implicated in human rights violations committed by the Bush administration CIA in its policy of secret detention, rendition and torture.
Ben Emmerson, UN Special Rapporteur

The European Court of Human Rights has vindicated the long search for justice of Khaled el-Masri, a German citizen who was the victim nine years ago of a mistaken rendition operation by the U.S. Central Intelligence Agency.

In a landmark ruling on Thursday, December 13, the court offered the most comprehensive condemnation to date by any court of what it termed “torture” by the CIA during the campaign of extraordinary rendition of terrorism suspects launched after the September 11 attacks on the United States.

The Justice Initiative filed the case on El-Masri's behalf before the court in September 2009.

In addition to condemning El-Masri’s arbitrary arrest, detention and interrogation in 2004, the court also found that the so-called “capture shock” techniques used by CIA agents to prepare him for a rendition flight to Afghanistan involved degrading ill-treatment amounting to torture. The ruling further found that El-Masri’s allegations of mistreatment throughout the more than four months he remained in U.S. custody were “established beyond reasonable doubt.”

James A. Goldston, executive director of the Open Society Justice Initiative and lead lawyer for El-Masri, wrote in the New York Times that the court "held that Mr. Masri’s forcible disappearance, kidnapping and covert transfer without legal process to United States custody nine years ago violated the most basic guarantees of human decency."

His colleague at the Justice Initiative, Darian Pavli, who also represented El-Masri in the case, told reporters at the court in Strasbourg that the ruling was a "signal to all countries who are planning to collaborate with the US that these practices cannot be justified and that their governments and individuals will be held responsible."

After being seized on December 31, 2003 on Macedonia’s border and held for more than three weeks in the capital Skopje, El-Masri was handed over to a CIA team at the city’s airport. Unnamed CIA agents placed him in restraints for the rendition flight to Kabul, in an officially-standardized process used in other renditions to induce a state of “capture shock” in detainees that included stripping him, photographing him and forcefully inserting a tube in his anus.

El-Masri was held for four months in Kabul and interrogated at the infamous detention center known as the “Salt Pit”. He was flown back to Europe on May 28, and left on the side of a road in Albania; the CIA was aware of its mistake for some time before he was eventually released. El-Masri’s subsequent attempts to seek legal redress in Germany, the U.S. and in Macedonia were unsuccessful, leading him to file an application to the ECHR in September 2009.

In its ruling, the court held Macedonia responsible for El-Masri’s treatment over the whole period of his detention, in both Macedonia and in Afghanistan.

Ben Emmerson, UN Special Rapporteur for Human Rights and Counterterrorism, said the ruling was "a key milestone in the long struggle to secure accountability of public officials implicated in human rights violations committed by the Bush  administration CIA in its policy of secret detention, rendition and torture".

Jean-Claude Mignon, President of the Parliamentary Assembly of the Council of Europe (PACE), said:

“This judgment can be called historic: it is the first condemnation, by an international court, of the CIA practice of renditions and secret detentions, which the Court has likened to enforced disappearance and cruel and inhuman treatment.”

Addressing U.S. role, the Justice Initiative's Goldston urged President Obama "to immediately and publicly acknowledge the wrong that was done to Mr. Masri, apologize on behalf of the American people and offer reasonable compensation to Mr. Masri."

Following the court ruling, the Open Society Justice Initiative is urging the Macedonians to immediately publicly accept the facts of El-Masri’s abduction and rendition, and to issue a full, high-level public apology to him, while immediately paying the individual damages ordered by the ECHR.

Given the role of the U.S. government, as well as the reported involvement of Germany intelligence operatives in El-Masri’s detention, as well as Macedonia’s previous refusal to properly investigate wrongdoing in this case, the Justice Initiative doubts Macedonia’s ability to conduct an effective investigation into the events that occurred.

We therefore believe that this will only be achieved by means of a high level international inquiry, constituted by Macedonia with the support of the Committee of Ministers of the Council of Europe, which is charged with implementing ECHR judgments.

“Macedonia has proven it is not prepared to investigate what happened to El-Masri properly,” said Goldston. “In view of the diplomatic pressures and internal political constraints involved, we believe that only a properly constituted, independent international inquiry will deliver an accurate and credible account of responsibility.”

The Justice Initiative is also urging the German government to transmit to the U.S. authorities the arrest warrants previously issued on 31 January 2007 for 13 CIA operatives involved in the case, so that U.S. officials involved in his case can be tried in Germany. Germany must also clarify the extent of its knowledge of, and involvement in, El-Masri’s extraordinary rendition.

We also urge the German government to provide El-Masri with adequate medical and psychological care for trauma associated with his extraordinary rendition.

Amrit Singh, a lawyer at the Justice Initiative who leads our legal work on human rights and counterterrorism issues, argued in The Guardian that following the judgment, "The time has come for European governments to stand up to the United States and break the conspiracy of silence [around rendition], regardless of the diplomatic consequences."

The Justice Initiative is currently involved in two additional cases at the ECHR over the CIA’s post-September 11 campaign of extraordinary renditions, which focus on the use of secret prisons in Romania and Poland to secretly detain and abuse Abd al-Rahim al-Nashiri, a Saudi national now on trial before a U.S. military commission at Guantanamo Bay, Cuba.

14 Comments

The wheels of justice grind slowly but they grind. Congratulations for your legal advocacy on behalf of Khalid el-Masri. ECHR unanimous ruling -Macedonia's role in el-Masri's abduction and imprisonment Dec.31,2003- May 28,2004. Khalid el-Masri awarded EUR 60,000 in damages. Since US g'ment in general and CIA/CT in particular 'abducted' el-Masri- 'tortured him- did not contact German authorities whether or not he was a German citizen (unless German Sec. divs were privy to this info and under ECHR guilty of abetting), US owes el-Masri not only apologies- but compensation -abduction (kidnapping)- torture (US signed Geneva Convention..Pres.Reagan's Exec. Order confirming same.) imprisonment..like DNA cases for falsely imprisoned/compensation.. punitive damages etc. Pres.Obama can forego all political tit-for-tats by issuing an Executive Order prohibiting unlawful detainments/inhuman torture etc. - pay el-Masri damages (punitive et al damages- in lieu of el-Masri not instituting a very damaging lawsuit in US - since el-Masri is a German citizen and Germany has an Embassy in Washington D.C and co-operation on federal level between both countries security (their equivalent of FBI/CIA/Nat.Sec.)..Read Skopje paper-http://www.skopjediem.com/-latest-news/17035-khaled-el-masri-wins-europe...

Thanks for the comment and the good wishes, Maarit.

More shocking is the contemporary world's NOT opening its eyes towards the peoples own form of establishment (democracy ) that indulges in such rights violations ! Modern democracy in its essence and spirit has been proved nothing different from the old authoritarian, alien regimes. Please share more on the self deception of modern democratic notion, at blog link: http://direneedofreinventingdemocracy.blogspot.in/

Our human rights have to be respected by all governments.

"Another Life' is the only American play about the U.S. torture program. It has been widely praised by human rights activists, writers and artists. Surreal, real and poetic, it was originally partly funded by OSI, when performed on the weekend of Sept. 11, 2011. Theater Three Collaborative always stages the play in conjunction with A Festival of Conscience, a series of conversations about torture and human rights. "Another Life" reopens this coming March 28-April 21 at Theater for the New City (sadly without additional OSI funding as the arts, or, at least, the theater, have dropped off their agenda). A new Festival of Conscience will focus on honoring whistle blowers and on Accountability. for more info: http://theaterthreecollaborative.org

This exposes the ugly face of the so-called American democarcy and her human rights records ...

I thought I heard on the news that the US paid $80,000 to Khalid el-Masri. I don't know whether that was a settlement or not but I would like to know that detail. FHS

Dear Frederick,

Thanks for your question. The European Court ordered Macedonia to pay Khaled El-Masri 60,000 euros (we had asked the court for 300,000) in compensation. This is not a settlement of any additional civil claims he might have...in contrast to the Pnds2.2 million settlement by the UK government with Sami al-Saadi over his rendition and torture in General Qaddafi's Libya, which was announced the same day. As a result of that settlment, the details of what happened to Saadi will never be substantiated before an English court, which did happen with El-Masri's case at the ECHR.

We are calling on the United States and Germany to pay additional compensation to El-Masri for what happened to Khaled El-Masri. So far the Canadian government has the best record on this; Canada paid roughly $10m to Maher Arar, a Canadian citizen who was wrongly seized at JFK airport as he changed planes on his way home to Canada, and sent to Syria, where he was tortured. The payment, and an apology from the Canadian prime minister, came after a full inquiry by a Royal Commission.

Justice will prevail, but it is likely to take time, patience and a group of committed and smart people working together to out-think the complex web of denial and counter-argument spun by US lawyers, politicians and PR men and women. Keep up the good work.

We ought to place everything in perspective.Injustice in every form is condemnable and unacceptable nonetheless the OSI and friends must equally be energetic in pursuing justice against forces of terror that made September 11, 2001happen.It is noteworthy that the terrible acts of that day on the Twin Towers culminated in Mastri's mistaken rendition sadly.
Think on this!

Thanks for the comment.

At the Open Society Foundations, we believe that working towards a more open and more just society is a powerful way of opposing those who promote violence and extremism. Like you, we rely upon the state where we live, which is responsible for our security and the administration of justice, to pursue those responsible for violence. But we also believe it is important to ensure that this pursuit of justice doesn't itself lead to injustice, such as the dreadful treatment of Mr. El-Masri, or the CIA's wider embrace of torture and secret prisons in its response to the September 11 attacks. Jonathan Birchall

Congratulation to Justice Initiative and to all those who believe in protecting the basic guarantees of human decency.

It is refreshing that at least somebody can stand up to the powers that be on behalf of the weak.

Thanks Isaac. That is why we are such strong supporters of the European Court of Human Rights - which gives individuals the right to challenge abuses by their governments.

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