The European Court of Human Rights is hearing a case this week involving European complicity in CIA torture. In doing so, it has a chance to deliver justice in relation to the CIA’s torture programme and highlight the failure of institutions in the United States to do the same.
Abd al-Rahim al-Nashiri, a Guantanamo prisoner, has filed suit against Poland. Al-Nashiri was secretly detained by the CIA on a Polish military intelligence base in Stare Keijkuty, Poland, where was held for six months from December 2002 until June 2003. During that time, he was tortured.
(Al-Nashiri’s case has been consolidated with that of another Guantánamo prisoner, Abu Zubaydah, who also was secretly detained and tortured in Poland under the same CIA programme).
A report released by the CIA Office of Inspector General confirms that interrogators subjected al-Nashiri to mock executions while he stood naked and hooded; to painful stress positions that nearly dislocated his shoulders from their sockets; and to threats of his mother being brought in to be sexually abused before him.
Al-Nashiri was brought to Guantanamo Bay after almost four years of secret detention in various locations, including in Poland. Since the CIA captured him in 2002, he has remained hidden away. He is unable to publicly relay the details of his torture because the U.S. government takes the remarkable position that his own memories and observations of what happened to him would reveal classified sources and methods.
A heavily redacted transcript of a closed-door proceeding held in Guantánamo Bay in 2007 reveals that al-Nashiri said: “From the time I was arrested five years ago, they have been torturing me.” Al-Nashiri's descriptions of his torture are blacked out in the transcript. He does, however, state: “Before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes.” Even U.S. government doctors have concluded upon examining al-Nashiri that he suffers from Post-Traumatic Stress Disorder.
But torture and secret detention are not the only issues at stake in this case. Poland's complicity in al-Nashiri's rendition has exposed Europe to the stain of the U.S. death penalty, a practice that European institutions repeatedly criticise as uncivilized and morally abhorrent.
Now, more than ten years after his torture in Poland, al-Nashiri faces a potential death sentence, not after a trial in a U.S. federal court, but by a military commission at Guantánamo Bay that does not meet international standards of justice. The European Convention on Human Rights prohibits contracting states like Poland from transferring individuals to jurisdictions where there is a substantial risk of facing the death penalty. Al-Nashiri is asking the Court to direct Poland to use all available means—including by seeking diplomatic assurances from the United States—to preclude the death sentence in his case.
The European Court has an opportunity to deliver justice in this case, as it weighs Poland’s complicity in the CIA’s programme against the country's obligations under European human rights law. The implications of doing so would extend far beyond this case, as Lithuania and Romania also have cases pending against them before the Court for hosting secret CIA prisons. More generally, it would puncture the shroud of impunity surrounding the CIA’s flagrantly illegal secret detention and extraordinary rendition operations, in which more than a quarter of the world’s countries were complicit in various ways (as documented earlier this year in the Justice Initiative's report, Globalizing Torture).
A favourable European Court decision would be in stark contrast to the failure of U.S. institutions to deliver any measure of accountability for the Bush administration’s policy of torture. Since 9/11, U.S. courts have refused to give victims of U.S.-sanctioned torture their day in court. No government entity has said it is sorry. Meanwhile, a 6,000-page report on CIA detention and interrogation, which the Senate Select Committee on Intelligence adopted in a bipartisan vote last year, remains classified. It remains classified even though the Sen. Dianne Feinstein confirmed that a majority of her fellow committee members believe that “clandestine black sites” and “enhanced interrogation techniques” were “terrible mistakes” and that the report would settle the debate on torture once and for all.
Washington’s failure to give a full account of the CIA programme, and to hold officials accountable for torture, continues to corrode the moral stature of the United States around the world. We must now look instead to the European court in Strasbourg to do the right thing.