Europe Leads the Way Forward on Accountability for Torture

In a significant move, the European Parliament today passed a resolution calling on the United States “not to apply the death penalty on Abd al-Rahim al-Nashiri on the grounds that the military commission trials do not meet the standards internationally required for the application of the death sentence.”

The resolution comes on the heels of a case the Open Society Justice Initiative filed on May 6 on al-Nashiri's behalf against Poland before the European Court of Human Rights. The case sets out the facts of Poland's complicity in al-Nashiri's torture and as well as his transfer from Poland, despite the risk of the death penalty in U.S. custody.

From about December 5, 2002, until about June 6, 2003, al-Nashiri was held incommunicado by the CIA on a Polish military intelligence base in Stare Kiejkuty. Official U.S. government documents confirm that during this time, 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,” while lifting him off the floor by his arms while they were bound behind his back and almost dislocated from his shoulders; and threatened to bring in his mother and sexually abuse her in front of him.

The case asks the court to direct Poland to use all available means to ensure that the United States does not subject al-Nashiri to the death penalty. It argues that Poland violated the European Convention of Human Rights by enabling his torture and incommunicado detention on Polish soil as well as his transfer out of the country in the face of the risk of the death penalty.

The European Parliament has heeded al-Nashiri's call for justice. In contrast, efforts within the U.S. seeking accountability for CIA torture and rendition have not met with much success. Just last month, the U.S. Supreme Court declined to review Mohammed v. Jeppesen, the third and final challenge to U.S. rendition practices. The court had previously declined to review a challenge to the renditions of Khaled el-Masri and Maher Arar.

Domestic efforts within Europe appear to be heading in a similar direction. Just last month, in an apparent attempt to appease the U.S. before President Obama's visit to Warsaw, Polish authorities removed deputy prosecutor Jerzy Mierzewski from an investigation into CIA black sites in Poland. Romania and Lithuania have similarly failed to conduct effective investigations into secret CIA prisons situated on their territories.

In this climate of impunity, the European Parliament resolution is especially significant for "strongly criticiz[ing] the fact that no-one has been brought to justice for human rights violations to which Abd-al-Rahim al-Nashiri and other prisoners held under the CIA secret program were subjected, either in Europe or in the United States."

One can only hope that the European Court will follow suit by swiftly rendering justice in al-Nashiri's case.

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When Justice Stephen Breyer spoke about justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum he said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.”

Unfortunately, there seems to be little human will in the Obama administration, the Congress or the American public to enforce the obligations of the Convention Against Torture. We generally seem content to condemn others for doing as we do and not as we say with respect to torture while we look forward and refuse to acknowledge our own recent past. American exceptionalism is not an American exception to the obligations we find unpleasant or politically inconvenient.

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