European Court of Human Rights Hears Extraordinary Rendition Cases, as "War on Terror" Controversies Continue

Hassan v UK
Hearing in Hassan v. UK

Over the past week, the European Court of Human Rights has held hearings in several cases relating to the “war on terror,” at the same time as the United States has forcibly repatriated two Guantanamo Bay detainees, despite their fears of persecution. The following post summarizes these developments and – in follow-up to this previous post – also surveys recent advances in other cases concerning extraordinary rendition, torture, and secret detention sites that have been brought before regional and international human rights bodies.

Al Nashiri & Abu Zubaydah v. Poland

On December 3, the European Court of Human Rights (ECtHR) held a hearing in the cases of two men, Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national and Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah) a stateless Palestinian, who are currently being held at the United States Guantanamo Bay Naval Base in Cuba. [ECtHR] Both of the applicants claim that through the practice of extraordinary rendition, they were transferred to a secret U.S. detention site in Poland where they were tortured and subjected to other forms of inhumane treatment, before being to Guantanamo. ECtHR, Al Nashiri v. Poland, no. 28761/11, Communicated on 10 July 2012; ECtHR, Husayn (Abu Zubaydah) v. Poland, no. 7511/13, Communicated on 9 July 3013.

The applicants allege that the Polish government “knowingly and intentionally enabled” the U.S. Central Intelligence Agency (CIA) to conduct activities that violated their human rights, including torture and incommunicado detention. [INTERIGHTS] Additionally, the applicants argue that the Polish government failed to uphold its duties under the European Convention on Human Rights by allowing their transfer from Poland to a location where they would not receive a fair trial and then failing to investigate the human rights violations that occurred within Polish territory. Mr. Abu Zubaydah has also submitted an application against Lithuania concerning the unlawful detention, torture and ill-treatment to which he was allegedly subjected on a secret CIA detention facility on Lithuanian soil. [INTERIGHTS] See ECtHR, Abu Zubaydah v. Lithuania, no. 46454/11, Communicated on 14 December 2012. Mr. Al Nashiri’s application against Romania alleges that government is similarly responsible for his secret detention, torture and transfer by the CIA from within Romanian territory. See ECtHR, Al Nashiri v. Romania, no. 33234/12, Communicated on 18 September 2012.

Hassan v. United Kingdom

On December 11, the Grand Chamber of the European Court of Human Rights held a hearing in another case relating to the “war on terror,” Hassan v. the United Kingdom. [ECtHR] The applicant alleges that his brother, Tarek, died after being taken into custody by British soldiers in Iraq. See ECtHR, Hassan v. United Kingdom, no. 29750/09, Communicated on 30 August 2011.  Both the applicant and the government agree that Tarek was taken to Camp Bucca, a facility run by the United States military. [ECtHR]

The key issue in this case is whether or not Tarek was within the jurisdiction of the British government for the purposes of its obligations under the European Convention when he was first detained and while he was being held at Camp Bucca. Mr. Hassan is asking the Court for a declaration that the British government violated articles 5(1-4) (right to liberty and security) on the grounds that his arrest and detention were arbitrary and not carried out in accordance with the law, as well as article 2 (right to life), 3 (prohibition against torture and inhumane or degrading treatment), and 5 for the government’s failure to investigate Tarek’s detention, treatment and death. Mr. Hassan also requests compensation, and an order for a full investigation into the detention, treatment and death of his brother. [ECtHR]

Forcible Return of Guantanamo Detainees

On December 5, the U.S. forcibly repatriated two Guantanamo detainees, Djamel Ameziane and Belkecem Bensayah, to Algeria where both reportedly feared persecution. [NY Times]  The men fled Algeria during the civil war in the mid-1990s, were detained abroad in 2001 and transferred to U.S. custody, and had been held at Guantanamo since 2002. Following the men’s return, the United Nations Special Rapporteurs on torture and on human rights and counter-terrorism expressed their concern about Mr. Ameziane’s fate, stating they feared his life could be in danger and that his transfer contravened precautionary measures granted by the Inter-American Commission on Human Rights. [UN News Centre]

According to the Center for Constitutional Rights, Mr. Ameziane was captured by Pakistani authorities while crossing the border between Afghanistan and Pakistan. He was then sold to the U.S. for a bounty. [CCR] The U.S. initially detained him at the U.S. airbase in Kandahar, Afghanistan and then transferred him to Guantanamo. [CCR] In 2008, the Center for Constitutional Rights submitted a petition and request for precautionary measures on behalf of Mr. Ameziane to the Inter-American Commission on Human Rights (IACHR). The IACHR granted Mr. Ameziane precautionary measures, asking the U.S. to take steps to ensure that Mr. Ameziane is not the victim of torture or cruel and degrading treatment and “to make certain that he is not deported to any country where he might be subjected to torture or other mistreatment.” Then in 2012, the IACHR admitted Mr. Ameziane’s petition, which alleged he had been subjected to torture, cruel and degrading treatment and arbitrary detention, and faced a risk of being returned to Algeria where he feared serious harm. See IACHR, Report No. 17/12, Petition 900-08, Djamel Ameziane (United States), 20 March 2012, para. 2. At the time of his repatriation, Mr. Ameziane’s case had not yet been decided on the merits.

The other Guantanamo detainee forcibly returned to Algeria last week had also sought recourse at the international level.  Mr. Bensayah had been investigated and exonerated in Bosnia for financing and facilitating Muslim extremist, but was nonetheless turned over to agents of the U.S. and sent to Guantanamo. [Reuters]  In 2008, the European Court of Human Rights rejected Mr. Bensayah’s application against Bosnia and Herzegovina, finding that the government “can be considered to be taking all possible steps to the present date to protect the basic rights of the applicants, as required by the domestic decisions in issue.” See ECtHR, Boumediene and Others v. Bosnia and Herzegovina (dec.), nos. 38703/06, 40123/06, 43301/06, 43302/06, 2131/07 and 2141/07, 18 November 2008, para. 67.  The applicants had alleged that Bosnia and Herzegovina was obligated to take all necessary steps to ensure respect for their human rights while in U.S. custody, in compliance with a domestic court decision to that effect. The European Court did not examine the question of any underlying State responsibility for the applicants’ transfer to American custody, which occurred before the European Convention on Human Rights entered into force in Bosnia and Herzegovina.

Recent Developments in “War on Terror” Cases before Human Rights Bodies

The United Nations and each of the three major regional human rights systems have received individual complaints regarding the rights of terrorism suspects held at Guantanamo Bay or other detention sites around the world. Many of these cases are identified in a previous post from September 2012, and are still pending resolution.  However, there have been recent developments.

Khaled El-Masri’s complaint regarding Macedonia’s role in his rendition and mistreatment has advanced before the European Court of Human Rights. In December 2012, the ECtHR found that the treatment of Mr. El-Masri at the Macedonian airport by U.S. agents and Macedonian officials constituted torture. ECtHR, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012, Judgment of 13 December 2012.

On November 2, 2013, the African Commission on Human and Peoples’ Rights held a hearing on the admissibility of the case of al-Asad v. Djibouti. The admissibility brief filed on behalf of Mr. al-Asad, a Yemeni national living in Tanzania, alleges that in December 2003 he was taken from Tanzania to Djibouti as a victim of the “U.S. extraordinary rendition and secret detention program.” Mr. al-Asad was allegedly transferred from Djibouti to three different secret U.S. detention facilities (two in Afghanistan and one in an unknown location) where he was held incommunicado. In 2005, the U.S. government transferred him to Yemen. At no time was he ever charged with crimes related to terrorism. The communication alleges violations of Mr. al-Asad’s rights to equal protection, life and personal integrity; freedom from torture, arbitrary detention and refoulement; fair trial; property and family under the African Charter on Human and People’s Rights.

In conformity with its mandate, the United Nations Working Group on Arbitrary Detention has also considered individual complaints regarding the treatment and detention of terrorism suspects. Earlier this year, the Working Group concluded that the ongoing detention of Mr. Obaidullah, an Afghan national, at Guantanamo was arbitrary. [IJRC] See Working Group on Arbitrary Detention, Communication concerning Mr. Obaidullah, Opinion No. 10/2013 (United States of America), 6 February 2013.

Other Pending Cases

Along with the Ameziane case discussed above, the Inter-American Commission on Human Rights continues to process other complaints by current and former Guantanamo detainees and others detained in the “war on terror.”  The IACHR has not yet published a decision on the admissibility of the petition submitted in 2011 on behalf of Binyam Mohamed, Bisher al-Raqi, Abou Elkassim Britel and Mohamed Bashmilah, or the petition submitted in 2008 by Khaled El-Masri, both of which involve allegations of extraordinary rendition and arbitrary detention at U.S.-run detention sites.

The case of Nasr and Ghali v. Italy, which concerns the alleged abduction by CIA agents and extraordinary rendition of the applicant Mr. Nasr (known as Abu Omar) from Italy to Egypt, is still pending before the European Court of Human Rights.  See ECtHR, Nasr and Ghali v. Italy, no. 44883/09, Communicated on 22 November 2011 (French only).

Past Decisions

In addition to the cases decided by the European Court of Human Rights and UN Committee Against Torture (listed at the end of this previous post), the UN Working Group on Arbitrary Detention also processed several complaints from “war on terror” detainees in recent years.

In 2005, the Working Group concluded that the detention without charge in Yemen of Messrs. Walid Muhammad Shahir Muhammad al-Qadasi; Salah Nasser Salim ‘Ali and Muhammad Faraj Ahmed Bashmilah violated the four men’s right to freedom from arbitrary detention. See UN Working Group on Arbitrary Detention, Communication Concerning Messrs. Walid Muhammad Shahir Muhammad al-Qadasi; Salah Nasser Salim ‘Ali and Muhammad Faraj Ahmed Bashmilah, Opinon No. 47/2005 (Yemen), 9 August 2005. Prior to being released into the custody of Yemeni officials, all of the men were held at Guantanamo Bay and other U.S. detentions sites. Allegedly, the U.S. government requested the ongoing detention of the men after their release from Guantanamo.

Additionally, in communications to the U.S. government regarding the cases of Mr. Sanad Ali Yislam Al-Kazimi, the Mr. Mohammed Abdul Rahman Al-Shimrani, and Mr. Ibn al-Shaykkh al-Libi and 25 other persons, the Working Group condemned the U.S.’s treatment of detainees at Guantanamo and other detention sites in relation to the “war on terror.” See UN Working Group on Arbitrary Detention, Communication Concerning Mr. Sanad Ali Yislam Al-Kazimi, Opinion No. 3/2009 (United States of America), 7 July 2009; UN Working Group on Arbitrary Detention, Communication Concerning Mr. Mohammed Abdul Rahman Al-Shimrani, Opinion No. 2/2009 (United States of America), 1 July 2008; UN Working Group on Arbitrary Detention, Communication Concerning Mr. Ibn al-Shaykkh al-Libi and 25 other persons, Opinon No. 29/2006 (United States of America), 8 December 2005.  At the time of the communications concerning their cases, both Mr. Al-Kazimi and Mr. Al-Shimrani were being held at Guantanamo, and the Working Group found their detention to be arbitrary.

While the specific locations Mr. Ibn al-Shaykkh al-Libi and the 25 other men named in the third case are not known, the facts alleged in the communication from the Working Group suggest that they were previously or are currently being detained at unknown secret detention centers run by the United States. The Working Group found that their treatment and detention violated the U.S. government’s obligations under the International Covenant on Civil and Political Rights.

Additional Information

For additional information, see the factsheets produced by the Office of the UN High Commissioner for Human Rights on Human Rights, Terrorism and Counter-terrorism and the ECtHR’s factsheets on Terrorism, Secret Detention Sites, and Extra-territorial Jurisdiction of ECHR Member States, as well as the Inter-American Commission’s Report on Terrorism and Human Rights.