蔡沛倫:Mistaken Identity, CIA Extraordinary Rendition, and the European Court of Human Rights: The Case of Khaled El-Masri

Pei-Lun Tsai
Ph.D. student, School of Law,
University of Nottingham

On 13 December 2012, European Court of Human Rights (ECtHR or the Court) delivered its judgment in El-Masri v The Former Yugoslav Republic of Macedonia, where the Court found Macedonia responsible for torture, ill-treatment and secret rendition of a German national, and in violation of a number of provisions in the European Convention on Human Rights (ECHR).  The applicant, Mr El-Masri, was subjected to an extrajudicial transfer of from one jurisdiction to another for detention and interrogation outside the normal legal system, otherwise known as “extraordinary rendition”.  It was believed that his initial arrest was a result of mistaken identity: his name resembled that of a suspected member of Al Qaeda.  Although the ECtHR case was brought against Macedonia, the judgment is in fact the first international judicial decision rendered on extraordinary rendition practised by the Central Information Agency (CIA) of the United States (US).  While the case of Mr El Masri has been brought to the attention of various national, regional, and international mechanisms (see external links below) and is now still pending before the Inter-American Commission on Human Rights, the current contribution would focus on the considerations and analyses of the ECtHR.

Background of the Case

Although different factual accounts have been put forward by Mr El-Masri and the Macedonian government and officials, the ECtHR found that the Mr El-Masri’s description of the relevant factual circumstances had been “detailed, specific and consistent” throughout all domestic, foreign and international inquiries and later confirmed by evidence obtained by a number of such inquiries.  In addition, since the Macedonian government failed to refute the allegations, the Court based its assessment on Mr El-Masri’s account, summarised below.

Mr El-Masri, a German national of Lebanese origin, was arrested at the Macedonian border on 31 December 2003, after arriving there by bus from Germany.  Following the arrest, he was taken to a hotel in Skopje (capital of Macedonia), and for the next 23 days, he was detained and repeatedly interrogated, in a language in which he was not proficient in, regarding his alleged connection with Al Qaeda.  During this period, he was subjected to constant monitoring and threatened with his life after stating that he intended to leave, and his requests to contact the Germany embassy were refused.  On 23 January 2004, Mr El-Masri was handcuffed, blindfolded and taken to Skopje Airport.  After arriving at the airport and being told that he would be transferred to Germany, he was severely beaten, forcibly stripped of his clothes, and sodomised with an object.  He was later placed in a nappy, dressed in a tracksuit and hooded.  Subsequently, he was dragged inside an aircraft surrounded by armed Macedonia security guards. When on board the aircraft, due to two injection s and an anaesthetic, he was unconscious during most of the flight.  His treatment at Skopje Airport appeared to closely resemble the “capture shock” treatment described in a recently disclosed CIA document.

Upon disembarking the aircraft, due to the warm temperature outside, Mr El-Masri concluded that he was neither in Macedonia nor Germany.  For the following four months, he was confined in a small, dirty and dark cell and subjected to repeated interrogation, beating, insults, and threats.  His repeated requests to meet a German government representative were again denied.  He later understood that he was kept in the “Salt Pit”, a facility in Afghanistan where the CIA detained and interrogated high-level terror suspects.  During his time in that that facility, he staged hunger strikes in protest of his detention and treatment, and despite his deteriorating health, he received no medical attention.  On 28 May 2004, he was led out of his cell and transported to an aircraft without being told of its destination.  After the aircraft landed, he was placed in a vehicle and later released by his captor, still not knowing where he was.  Eventually, he reached the Albanian borders with Macedonia and Serbia and was subsequently put on a plane to Frankfurt Germany.

Upon his return to Germany, Mr El-Masri brought several legal actions concerning his ordeal, including in Germany, the US, and Maecdonia.  Investigations were launched in Germany, and claims under the Alien Tort Statute were filed in US courts.  On December 6, 2005, Mr El-Masri, represented by the American Civil Liberties Union, brought action in the US against George Tenet, the former CIA director, the private corporations involved in the CIA’s extraordinary rendition program, and the unidentified individuals working for the CIA and the private corporations.   The US government subsequently moved to intervene and concurrently moved to dismiss the case to prevent disclosure of State secret.  The US District Court for the Eastern District of Virginia granted the US motion for dismissal after finding that the “national interest in preserving State secrets” outweighed Mr El Masri’s “private interests”.  The decision was affirmed by the US Court of Appeals for the Fourth Circuit and became final after the Supreme Court denied certiorari.  In Macedonia, proceedings were launched before the Department for Control and Professional Standards within the Ministry of the Interior (DCPS), the Skopje public prosecutor’s office for a criminal complaint, and the Skopje Court of First Instance for a civil action for damages.  His criminal complaint was dismissed after the prosecutor received information from the DCPS and concluded that his claims were unsubstantiated, and the civil case is still pending.  The Macedonian government consistently asserted that Mr El-Masri was only questioned for travelling with false documents and denied any involvement of governmental officials in the crimes alleged by the Mr El-Masri.

ECtHR Proceedings and Outcome

Based on the abovementioned facts, Mr El-Masri’s complaint alleged violations of Articles 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life), and 13 (right to an effected remedy).

With regards to Article 3, various aspects of the factual circumstances convinced the Court that Macedonia failed to fulfil its obligation under that provision.  Firstly, during Mr El-Masri’s detention at a hotel in Skopje, his treatment was considered by the Court as inhuman and degrading, especially in light of the state of anxiety stemming from the absence of knowledge of his own fate and from the threat of life after he expressed the intention of leaving.  Secondly, his treatment at Skopje Airport was imposed for the purpose of causing pain and suffering in order to obtain information, amounting to torture.  Thirdly, in view of the public reports on the US practice regarding suspected terrorists and extraordinary rendition, the Macedonian government knew or should have known that transferring him into the custody of the CIA rendition team exposed him to risk of further violation of Article 3.  Lastly, after all the above violations have been brought to the attention of the Macedonian authorities, Macedonia was evidently under the obligation to conduct thorough and effective investigation.  Instead, the investigation was insufficient and summary and fell short of standards set by the ECHR.

Regarding Article 5, the Court reasoned that Mr El-Masri’s detention was not authorised by any court order and not documented, and he had no access to any mechanism reviewing the legality of his internment.  Furthermore, the act of handing him to the US authorities also violated this provision since it was clear that his rights under Article 5 would be severely hampered in the process of extraordinary rendition.  Similarly, the lack of investigation compounded Macedonia’s breach of obligations.  The Court, based on its finding concerning Articles 3 and 5, concluded that Mr El-Masri’s rights under Articles 8 and 13 were also violated.  In short, the Court found violations of all four provisions and requested that Macedonia pay €60,000 for non-pecuniary damage suffered by Mr El-Masri.

Implications of the ECtHR Judgment

Subsequent to the delivery of the judgment, it is reported that the CIA refused to comment on the Court’s findings.  Due to the nature of the ECtHR and its jurisdiction, the Court’s judgment is obviously not binding upon the US, the State actually directing the practice of extraordinary rendition.  Nevertheless, the case remains significance for several reasons.  Firstly, as the practice of extraordinary rendition the case serves great value for other victims of similar violations as they seek remedies for their sufferings.  Secondly, the judgment affirmed that Macedonia, as well as other States involved in the extraordinary rendition program, should undertake rigorous investigation into relevant allegations and identify implicated individuals.  Lastly, and perhaps most importantly, the Court’s condemnation serves as a reminder to the US that even though victims of its wrongdoing often fail to obtain remedies in its domestic courts, foreign, regional, and international forums remain available to address relevant violations.  This case before the European Court of Human Rights joins the line of a number of developments at the national level where individuals whose rights were breached obtained redress.  It may be far-fetch to conclude at this stage that the US government would finally review its own conduct and even provide reparation to all those fallen victim of its extraordinary rendition program.  Nevertheless, with the change of attitudes of certain State previously cooperating with the US in carrying out extraordinary rendition and the strong criticisms of various prominent actors on the international plane, it can be observed that it would be increasingly harder for the US to cover up its unlawful conduct adopted in its “war on terror” and to seek assistance from other States in carrying out further violations.

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