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. Continue reading