The European Court Rules: CIA Engaged in Torture of Victim of Mistaken Rendition
By Jonathan Birchall
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:
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.
Jonathan Birchall is senior advisor for communications at the Open Society Foundations.