As torture victims the world over know all too well, decades can separate them from the redress they are entitled to under international law. But for most survivors of torture the required remedies never come at all: no truth is revealed, no justice done, no compensation paid, no official apology uttered.
If the United States government has its way, persons tortured by its agents — and by foreign agents acting on its behalf – in the former administration’s “rendition program” will fall into the latter category. Victims have come forward; flight logs have been disclosed; intelligence officials have confirmed aspects of the program; and the CIA has acknowledged the use of unlawful interrogation techniques, including waterboarding, on prisoners held in secret.
Despite the wealth of public information, including former President George W. Bush’s recently televised proud admission that he personally authorized waterboarding – otherwise known as torture – all three branches of the current US government have failed to take the necessary action to close the accountability gap. On Bush’s admission alone, the US should have immediately commenced a criminal investigation into the former president’s actions.
If those victims of these abuses who are determined to pursue justice get their way, however, some redress may be in the offing: in European countries and in regional courts and commissions where a concerted effort is underway to resurrect respect for human rights from the ashes of the Bush administration’s “war on terror”.
A new report by Amnesty International condemns the yawning accountability gap in the US, but argues that Europe remains fertile ground for such accountability. The report, titled Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention makes quick work of the US (virtually no accountability to date) and then moves on to Europe, highlighting eight countries – Germany, Italy, Lithuania, Macedonia, Poland, Romania, Sweden and the UK — where inquiries, investigations, disclosures of information, or processes in regional courts or human rights commissions offer a glimmer of some sort of remedy. The idea that the “truth will out” is apt: the US’s refusal to cooperate with these investigations has hurt, but not hobbled, them. The examples below represent a series of recent “firsts” in getting at that truth.
For a Saudi national in US custody for the last eight years and currently awaiting trial by military commission at Guantanamo Bay, a measure of justice could come from a seemingly unlikely place: Poland. In October, the Warsaw prosecutor investigating allegations that Poland hosted a secret prison for the CIA from 2002-2004 granted Abd al-Rahim al-Nashiri formal status as a victim, which guarantees his lawyers a role in the proceedings: the first time that a named victim will have such representation in a European country alleged to have helped the CIA imprison him in secret. The CIA has acknowledged that al-Nashiri, the alleged mastermind of the USS Cole bombing, was subjected to waterboarding, but also suffered under “unauthorized” techniques such as having a gun that he didn’t know was unloaded and a drill held to his head, and being implicitly threatened with the sexual assault of his women relatives.
After several failed attempts, rendition victim Khaled el-Masri might also finally see some justice. A German national, El-Masri was secretly held for weeks in 2003 by Macedonian agents before being shipped from Skopje to Afghanistan by the CIA. The US Supreme Court refused to hear his case, invoking state secrecy to justify knocking el-Masri off the docket, and the German government absolved its agents of any responsibility. So el-Masri has taken his case to the European Court of Human Rights, putting Macedonia on the hot seat by accusing its agents of unlawful imprisonment, ill-treatment, and complicity in his transfer to Kabul where he claims to have been tortured in the notorious “salt pit”. The case is the first time the European Court is likely to consider a CIA rendition case on the merits.
The first ever criminal convictions of CIA and foreign agents for actions related to a rendition came in November 2009, along with an order to pay the victim compensation. An Italian court convicted US and Italian agents for the 2003 kidnapping of Egyptian national Usama Mostafa Hassan Nasr (aka Abu Omar) in Milan. Abu Omar was subsequently transferred to Egypt where he reportedly was tortured. High-level Italian intelligence officials, however, were protected from conviction under the state secrets doctrine and some US diplomats were granted diplomatic immunity. But the intrepid Italian prosecutor appealed and last month argued in the appeal proceedings that state secrecy should not be used as a shield to protect Italian officials from scrutiny for egregious human rights violations – and that kidnapping hardly constitutes a diplomatic duty for which an official should be granted the privilege of immunity.
Other recent “firsts” include the long-awaited announcement in July 2010 that the UK would hold an independent inquiry into its involvement in some of these practices. That process is set to get underway in early 2011 and may offer a glimmer of hope for rendition victims such as former Guantanamo Bay detainee, Binyam Mohamed. Mohamed was held in Pakistan, Morocco and Afghanistan, where he claimed he was tortured, including by being sexually mutilated. Mohamed’s credible claims of British complicity in his mistreatment have dogged the government for years. The admission by Lithuania in December 2009 that its agents prepared secret detention facilities for use by the CIA was the first time that this Baltic state appeared on the radar, confirmed as having participated in the rendition and secret prisons’ operations. In January 2010, a criminal investigation was opened. The European Committee for the Prevention of Torture (CPT) visited both sites last June, the first time an independent monitoring body made public a visit to secret CIA prison in Europe.
The global span of the CIA’s rendition program provided the US government with everything it needed to round people up worldwide: willing complicit allies, landing points for fuelling stops, proxy interrogators, and a secret prison network that included sites on at least four continents. But taking advantage of such reach has had an unintended effect: it has provided numerous jurisdictions and forums in which victims can now seek legal accountability. The US may be an “accountability-free zone” at the moment, but the rest of the world – Europe, in particular – may just be ripe with real opportunities for those seeking justice for the complicity of the many governments that eagerly participated in the US’s pernicious “coalition of the willing.”
Julia Hall is a human rights lawyer and Amnesty International’s expert on counter-terrorism and human rights in Europe in the organization’s international secretariat in London, England