European Human Rights Court Exposes Further Complicity in CIA Torture

The appointment of Gina Haspel as the new CIA director has brought the issue of extraordinary rendition and CIA torture back onto the radar, opening up a much-needed debate that has revealed how little is known about the program and its victims more than a decade after the CIA claims to have shut it down.

The program would not have been possible without the complicity of dozens of states worldwide; the fact that Haspel ran a CIA torture prison in Thailand in 2002 is evidence of this. A 2013 Open Society Justice Initiative report mentions 54 foreign governments participating, with 27 of them in Europe. Claims have been made concerning other states, too. Like Haspel, government officials in these countries have been evasive about their role in the CIA program.

Further light has been shed on the scale of global complicity in a ruling made by the European Court of Human Rights in Strasbourg on May 31, finding Lithuania and Romania complicit in the CIA’s extraordinary rendition program.

The complaint against Lithuania, brought by CIA torture “poster child” Abu Zubaydah, found that he had been held at the purpose-built “Site Violet” from February 2005 to March 2006; the state had known about his treatment there and facilitated his onward journey to further torture, all in breach of the European Convention on Human Rights‘ absolute ban on the use of torture.

The complaint against Romania was brought by Abd Al Nashiri, who is currently facing the death penalty at Guantánamo in a case whose evidence was obtained through the years of torture he suffered in CIA black sites. The Court found “it had been proved that a CIA secret detention centre had operated in Romania from September 2003 to November 2005 and that Mr Al Nashiri had been held there from April 2004 to at the latest November 2005.” According to the 2014 US Senate Torture Report: “Mr Al Nashiri was subjected to rectal feeding at one point in 2004 when being held in Bucharest because he had tried to go on a hunger strike and in 2005 he was on the ‘verge of a breakdown.'”

It was the first time the European Court of Human Rights had recourse to the redacted 2014 report to back up evidence presented by the victims’ counsel. With the two badly tortured men safely and conveniently locked away at Guantánamo Bay, with highly limited access to others due to their status as high-value detainees, the court was unable to question them and had to rely on other information and experts.

The European Court of Human Rights also found that the two states had breached other human rights of the victims, particularly through their failure to investigate properly, and ordered them to pay €100,000 in compensation respectively.

This latest judgment, which can be appealed in the next three months, means that five European states have now been found complicit in the CIA’s extraordinary rendition program, after Macedonia, Italy and Poland.

The 2012 ruling against Macedonia, for its arrest and handover to the US of German-Lebanese national Khaled El Masri, was particularly important, as it was the first time ever that a state was brought to account for its complicity in extraordinary rendition, and indicated that such states are not above the law.

The case against Poland is similar to the latest judgments in that it established, for the first time, that a European state had knowingly allowed the CIA to run a detention and torture facility in its territory, similar to the site run by Gina Haspel in Thailand. While there were indeed many other individuals held at all of these facilities during the period in which they operated, the fact that the complaint was brought by the same two victims as in the latest judgments demonstrates the perverse nature of the CIA torture program. Both were held at other secret torture facilities, before and after, in different locations around the world over a number of years.

The $250,000 compensation Poland was ordered to pay the two men appears to have provoked more controversy than the $15 million the CIA is reported to have paid Poland to host the facility. Although payments to other states are mentioned in the Senate Torture Report, the exact amounts paid and to whom are not disclosed.

In the US, a known torturer has been promoted to the head of the CIA and no one involved in the program at any level has ever been prosecuted. Positive action taken in other countries is thus welcome, but it should not be forgotten that the European Court of Human Rights is a court of last instance, a resort after all other avenues have been exhausted. States are supposed to investigate their own complicity adequately and carry out the necessary prosecutions. That has not happened in any European state. Instead, states remain in denial or are noncommittal to investigating their role.

Macedonia, the first country to be found complicit, issued a formal apology to Khaled El Masri in April 2018, but it “has yet to open a formal criminal inquiry into what happened, or to hold anyone to account.” Similarly, Poland’s investigation is reportedly still ongoing, more than two years after the judgment against it became final.

In its latest judgments, the European Court of Human Rights recommended that Lithuania conclude its reopened investigation into Abu Zubaydah’s ordeal swiftly and punish those involved. No details have been made public of Romania’s alleged criminal investigation, which the court urged it to conclude and “aim to identify and, where appropriate, punish those responsible.”

In Al Nashiri’s case, Romania was also found guilty of breaching his rights with respect to a fair trial and the death penalty. The court urged Romania “to seek assurances from the US authorities that he will not suffer the death penalty.” While Al Nashiri has now successfully sued two European states for their role in his torture by the US, his military commission at Guantánamo, which has been indefinitely suspended since February 2018, demonstrates the farcical and arbitrary nature of those proceedings. The impact of this latest ruling on that case, if any, remains to be seen.

Hosting torture facilities for the CIA is only one way in which European states have been complicit, as demonstrated by the British government’s apology for its role in the rendition of a Libyan dissident and his pregnant wife from Southeast Asia to Libya in 2004. Many states allowed CIA torture flights to land and refuel at their airports. States, such as the Netherlands and Finland, have failed to investigate adequately and remain in denial about what they knew and what they allowed. The European Parliament, which held its own inquiry in 2007, has repeatedly called on member states to investigate and prosecute those responsible for enabling torture if necessary.

While there have been calls in the US to investigate and prosecute Gina Haspel, investigations into collusion in the CIA’s extraordinary rendition program must also take place worldwide. It is not enough for senior officials‘ claims to be taken at face value when they purport to have known nothing at the time. Torture victims and the general public should not have to wait years for cases to go to international courts before states are forced to take some form of action. The global conspiracy of silence around the extraordinary rendition program must be broken. With Donald Trump threatening to bring back torture, states must demonstrate that they will not collude again in the CIA’s illegal activities.