Ill-treatment in the war against terror: the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania

By Christina Kosin, Ph.D. Candidate and Academic Assistant at the German Police University

On 31 May 2018 the European Court of Human Rights (ECtHR) ruled in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania that the Contracting States Romania and Lithuania violated multiple provisions of the European Convention on Human Rights (ECHR), among others the substantive and procedural limb of Art. 3 ECHR – the prohibition of torture and inhuman and degrading treatment or punishment. Neither in Al Nashiri nor in Abu Zubaydah did public authorities from Romania or Lithuania themselves inflict ill-treatment on the applicants who were under suspicion to be involved in terrorist activities. The Strasbourg Court found a substantive breach of Art. 3 ECHR on the basis of the conduct of a third party, the Central Intelligence Agency of the USA (CIA), at secret detention sites within the jurisdictions of Romania and Lithuania. The ECtHR established “beyond reasonable doubt” that Romania as well as Lithuania knew of the CIA’s activities in their respective territories at the material time. For this reason, it considered that Romania and Lithuania had acquiesced in and consented to the High-Value Detainee (HVD) Programme of the US and therefore held them responsible for the inhuman treatment suffered by the applicants at the hands of US officials.

The cases Al-Nashiri v. Romania and Abu Zubaydah v. Lithuania are follow-up judgments after Al-Nashiri v. Poland and Abu Zubaydah v. Poland from 16 February 2015. In the latter cases, the same applicants had made a similar claim with regard to Poland. Concerning Poland’s responsibility under the ECHR, the Court had decided that the Polish State is responsible for the torture of the applicants contrary to Art. 3 ECHR inflicted by CIA officials on Polish territory on account of Poland’s acquiescence and connivance in the HVD Programme.

Focus

In this comment, a brief comparison is drawn between the cases of 2018 and the judgments of 2015. The focus lies on the substantive breach of Art. 3 ECHR and the comparison is conducted with regard to the question how the ECtHR established the facts of the cases. Since the CIA’s actions within detention sites outside US territory are usually clandestine, it is of interest to find out which sources and materials the Court draws upon to reconstruct the legal truth in such situations. Another issue tackled is why the violence in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania did not amount to torture as in the cases against Poland but to inhuman treatment.

Establishing the facts of the cases

In the cases Al-Nashiri v. Poland and Abu Zubaydah v. Poland the Court had no difficulty to establish the facts of the cases and to describe the form of ill-treatment Al Nashiri and Zubaydah were subjected to – torture – due to available material from the CIA depicting in detail the severe ill-treatment inflicted on the applicants in course of the interrogations. In the current cases, however, no records existed. In order to establish the facts of the cases in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania, the ECtHR relied to a large extent on the US Senate Committee Report of December 2014, a declassified executive summary reviewing the CIA’s detention and interrogation programme in the fight against terrorism. Another relevant source for the Court to establish the legal truth was Der Spiegel Online, a German online magazine. With regard to the latter the ECtHR cited, for example, a publication which revealed that the former head of State of Romania, Mr Iliescu, openly talked about Romania granting the US a “site” on its territory for “US activities”. According to the same online article of Der Spiegel, this statement was confirmed by Mr Talpeş, a former Advisor on National Security in Romania. Further material the ECtHR relied upon to reconstruct the facts of the cases was the European Parliaments resolution of 8 June 2016 (EP Resolution 2016/2573(RSP). In this resolution Mr Talpeş acknowledged to be aware of the CIA’s presence in the country. In Al Nashiri v. Romania as well as in Abu Zubaydah v. Lithuania the Court dismissed the arguments of the Governments not having had knowledge of the CIA’s activities on their territories. Romania and Lithuania tried to proof their statements by basing them on conclusions from parliamentary inquiries which were conducted as well as criminal investigations, in particular, testimonies of witnesses.

In its position against the Governments’ interpretations, the ECtHR gave due weight to the US Senate Committee Report. The great value the ECtHR attached to the Report can be best shown with the following statements of the Court. In the case Al Nashiri v. Romania the ECtHR highlighted that the arguments by Romania “are in a marked contrast to the disclosures made by the US authorities, Romania’s partner under the agreement” (Al-Nashiri, para 559). The Court further stated that it “does not see how the findings of the US Senate Intelligence Committee, based on a several-year-long investigation and in-depth analysis of first-hand evidence, with in most part came from classified “top secret” sources, including more than six million pages of CIA documents […] could be undermined by the material referred to by the Government” (Al Nashiri, para 559). Accordingly, the US Senate Committee Report, albeit being a heavily redacted version of yet still 525 pages (the classified Report comprises 6,700 pages), was of significant evidential function in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania. Since no records of the CIA existed in these cases, the importance of the US Senate Committee Report for helping to uncover the legal truth in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania cannot be overstated. Furthermore, by drawing on publicly available reports from governmental sources, international bodies and the media to find out the facts of the cases, the ECtHR confirmed what it had already established in Al Nashiri v. Poland, Abu Zubaydah v. Poland as well as El-Masri v. the former Yugoslav Republic of Macedonia: European Governments cannot turn a blind eye to CIA activities contravening the ECHR within their jurisdictions if information proving ill-treatment circulates in the public domain. In particular, the judgments of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania have shown that Contracting States cannot hide from their responsibilities under the ECHR and thus their accountability under the disguise of allegedly objectively conducted national inquiries and investigations.

The characterisation of the ill-treatment

In its constant case law the ECtHR understands torture as deliberate inhuman treatment causing very serious and cruel suffering that is inflicted by a public official for a purpose such as the elicitation of information. In Al Nashiri v. Poland and Abu Zubaydah v. Poland the applicants were subjected to   “enhanced interrogation techniques” (EITs) such as waterboarding, mock executions and hanging upside down when they were questioned by the CIA. Since these techniques caused severe suffering and were applied in a premeditated and organised manner with the aim to obtain information, the ECtHR classified the violence as torture within the meaning of Art. 3 ECHR. With regard to the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania, there was no evidence that EITs were used when the applicants were interrogated by CIA officials. In fact, the usage of EITs was suspended for some time when Al Nashiri and Abu Zubaydah were detained in Romania and Lithuania respectively. The Strasbourg Court established that both individuals were kept under “standard conditions of confinement”, which included blindfolding and hooding, solitary confinement and the permanent exposure to light and music. Moreover, the Court established that the victims were subjected to “debriefings”. Concerning the applicant Al Nashiri, the “debriefings” involved “showing [him] photographs” (Al Nashiri v. Romania, para 545). When categorising the violence the applicants faced in Romania and Lithuania, the ECtHR indicated that it did not reach the kind of severity as it did in Poland. However, the Court acknowledged that the applicants were subjected to an “extremely harsh” detention regime in Romania and Lithuania, causing intense physical and mental suffering which amounted to inhuman treatment.

The ECtHR’s decision to characterise the measures in the cases against Poland as torture and the violence in the judgments of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania as inhuman treatment is comprehensible since confronting an individual with photographs is significantly less brutal than subjecting a person to waterboarding or mock executions. Although the ECtHR described the detention regime in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania as “extremely harsh” as the victims were, for instance, held incommunicado and exposed to continuous music and light, the treatment and the circumstances in these two cases were not sufficiently severe to amount to torture, particularly in comparison to the cases against Poland. In terms of the severity of a treatment, the ECtHR tends to classify in its jurisprudence only the most brutal treatment as torture such as rape of a minor from an ethnic minority in police custody (Aydin v. Turkey) as well as arbitrary police brutality leaving individuals permanently impaired (Cestaro v. Italy). Accordingly, the Court characterisation of the ill-treatment in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania as inhuman treatment sits well with the constant case law of the ECtHR.

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