By Rumyana Grozdanova
Durham University Law School
In December 2012, Khaled El-Masri, a German national who was detained by Macedonian border security and then extraordinarily rendered by the CIA, finally received a measure of justice. In a case that has haunted many in the human rights community, Mr El-Masri was subjected to incommunicado detention, first at the hands of Macedonian authorities after being seized on 31 December 2003, and then by the CIA, who rendered him to the infamous “Salt Pit” secret prison in Kabul where he was detained without access to legal representation or diplomatic services and ill-treated for a further four months. In April 2004, CIA Director George Tenet learned that Mr El-Masri was being held wrongfully. Then National Security Advisor Condoleezza Rice learned of his detention in early May and ordered his release. Mr El-Masri was finally released on May 28th, following a second order from Rice. Rather than feeling relieved that his ordeal might be coming to an end, at the time he believed that his release was a ruse and he expected to be executed. El-Masri was flown out of Afghanistan and released at night on a desolate road in Albania, without an apology or funds to return home. Albanian border guards eventually intercepted him, initially believing him to be a terrorist due to his haggard and unkempt appearance. His torment continued once home in Germany when he realised that his wife had returned to her family in Lebanon with all their children, because she believed that her husband had abandoned them. Perhaps the most distressing part of his story is the reason he was subjected to this treatment— because of suspicions by the Macedonian border control that his German passport was a forgery, combined with the fact that his name is similar to that of Khalid al-Masri, an alleged mentor to the al-Qaeda Hamburg cell.
El-Masri’s case in the European Court of Human Rights was highly anticipated as it was the first arising from the CIA’s program of “extraordinary rendition”. It was also the first time that a court anywhere conducted a full hearing on the merits of his claims, even though various criminal and civil proceedings related to his case have been initiated in Germany, the United States and Macedonia. His case within the United States court system was dismissed on the grounds of the “state secret” doctrine; the Macedonian government refused to acknowledge its role in his detention and ill-treatment despite the evidence, which confirmed his account; and, finally, the German government opted not to disclose what information it had on his case and decided against seeking extradition for the CIA officials who were allegedly involved in his extraordinary rendition.
In December 2012, the European Court of Human Rights unanimously held that there had been a violation of article 3 of the European Convention on Human Rights, the prohibition of torture and inhuman or degrading treatment. Macedonia was found to have violated article 3 on the following accounts: 1) the treatment Mr El-Masri was subjected to while held incommunicado in a Skopje Hotel amounted to inhuman and degrading treatment; 2) his treatment at Skopje Airport amounted to torture; 3) his transfer to US custody exposed him to the risk of further treatment contrary to article 3 and 4) Macedonia failed to carry out an effective investigation into Mr El-Masri’s allegations of ill treatment. The Court then found that article 5, the prohibition against arbitrary detention, had been breached in respect of both his confinement in a Skopje hotel for 23 days and his subsequent captivity in Afghanistan; the violations were described as “particularly grave” by the Court. In light of the breaches of articles 3 and 5, Macedonia was further found to have unlawfully interfered with Mr El-Masri’s family life; thus article 8, which protects the right to privacy and family life, was also found to have been violated. The lack of meaningful investigation of the complaints under articles 3, 5 and 8 and the ineffectiveness of the criminal investigation had undermined the potential effectiveness of any other remedy thus a violation of article 13, the right to an effective remedy, was also found. In its judgement the Court was robust in its condemnation of the practice of extraordinary rendition, which it described as a serious violation of the European Convention on Human Rights. The Court further emphasised that this case was of significant importance personally for Mr El-Masri and victims of similar crimes, and for the general public who had the right to know what had happened.
There was, however, an element of Mr El-Masri’s case that was not fully addressed by the court. He was detained at the Serbian / Macedonian border and then accompanied to a hotel where he was held incommunicado for over 20 days until he was handed over to what was most likely a CIA rendition team at Skopje Airport. The sequence of events suggests that Macedonia and the United States had engaged in bilateral intelligence sharing and cooperation behind the scenes, which led to the rendition of Mr El-Masri to the “Salt Pit”. In this context his case is similar to the plight of Maher Arar, who was subjected to an extraordinary rendition to Syria based on flawed intelligence information shared between Canada and the United States. By virtue of the nature of intelligence cooperation and intelligence gathering, underdeveloped national, regional and international transparency and accountability mechanisms can undermine the effective application and protection of individual human rights. As demonstrated by the facts of these two cases, the effects of incomplete or erroneous intelligence information—combined with dubious intelligence gathering techniques and inadequate accountability mechanisms—can have devastating effects for an individual not only in relation to individual liberty and physical integrity, but also on a socio-economical level. Under the provisions of the International Covenant on Economic, Social and Cultural Rights, extraordinary rendition may violate the protections afforded under article 11 – the right to an adequate standard of living for all persons and their family. In the case of Mr El-Masri, his wife and their 5 children had moved back to Lebanon to rely on the financial and personal support of her family believing her husband had abandoned their family.
The decision in the El-Masri case was a step in the right direction in condemning and seeking accountability for some counter-terrorism practices during the years of the CIA’s “high value detainee” program, which included extraordinary renditions. However, the courts need to take another step forward and fill the accountability vacuum created by the increased reliance post-September 11 on national, bilateral and multilateral security arrangements.