June 01, 2018

Policy and Legal Implications of European Court’s Ruling on CIA “Black Sites”

JustSecurity.org

by Katherine Cheasty Kornman

June 1, 2018

A Casa 235 turboprop plane at Ruzyne Airport April 8, 2005 in Prague, Czech Republic before leaving for Afghanistan. According to airport flight records the plane was registered to the firm Aero Contractors, a firm suspected of participating in the CIA’s rendition program. Pavel Horejsi / Getty

On Thursday, the European Court of Human Rights handed down its judgments in two cases involving European countries that had hosted CIA “black sites” in their territory. In the two cases – Al Nashiri v. Romania and Abu Zubaydah v. Lithuania – the Court found that both States, through their cooperation with CIA extraordinary renditions of the applicants, had committed multiple violations of the European Convention on Human Rights (ECHR). In reaching its findings against the two European States, the Court also delivered blistering criticism of the U.S. Military Commissions as well as the CIA’s interrogation practices, black sites, and High-Value Detainee Program.

The judgments have important implications, including the prospect that there may be prosecutions before the International Criminal Court (ICC) related to these incidents, possible constraints on future participation of European states in national security operations involving the United States, and more.

Background

Applicants Abd Al Nashiri and Abu Zubaydah were captured in 2002 and have since remained in US custody on suspicion of terrorist activities. Zubaydah is alleged to have been Al Qaeda’s chief of operations, and Al Nashiri is suspected of orchestrating the 2000 bombing of the USS Cole, for which he is currently facing capital charges before a military commission at Guantanamo.

After their respective captures in 2002, the United States transferred both Al Nashiri and Abu Zubaydah from a CIA detention facility, or black site, in Thailand to one in Poland. The CIA subsequently transferred each prisoner to different locations – Al Nashiri in 2004 to a black site in Romania and Abu Zubaydah in 2005 to another black site in Lithuania. After additional relocation and detentions elsewhere, both prisoners were transferred to US military custody in Guantanamo in September 2006.  Both prisoners were designated “High Value Detainees” at that time and continue to be held at Guantanamo Bay. In 2011, the detainees submitted their respective applications to the European Court against Poland, Lithuania, and Romania.

Judgments

While the underlying facts of each case are different, the Court’s judgments share substantially similar language and analysis. They both rely and build heavily on the Court’s 2014 judgments in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland,  in which the Court considered the culpability of Poland regarding assistance given to the CIA’s extraordinary rendition program following the attacks of September 11, 2001.

Both of Thursday’s Al Nashiri and Zubaydah judgments “are striking for their frank and clear declaration that the CIA operated black sites in Lithuania and Romania at which torture took place, with the knowing acquiescence of the host governments,” notes Just Security’s Oona Hathaway. “The Court, relying in significant part on the 2014 US Senate Committee Report, dismissed Romania’s and Lithuania’s claims that, among other things, (a) the applicants lacked credible sources of evidence; (b) the black sites did not exist in their countries, and (c) if the sites did exist in their countries, the government did not agree to them and did not know that torture was taking place at them,” Hathaway said. Indeed, the 2014 Senate Report serves in these rulings as evidence to prove the Court’s prior conclusion in 2012 Poland decision that it was “inconceivable,” in the words of the Court, that the CIA could have operated its rendition and detention programs without the knowledge and consent of the host government.

Legal and Policy Implications

There are four key implications of these judgments.

Legal Liability for European States

First, for Council of Europe Member States, these judgments emphasize the legal and political risks of cooperating with or assisting foreign operations. This is especially true in cases where a Member State permits the use of its territory or airspace for such operations. The judgments suggest that States may, as a matter of law, now have affirmative obligations to investigate past ECHR violations involving this type of assistance provided to foreign partners. While there is a varying degree of compliance with the ECHR obligations across the Council of Europe’s 47 Member States, the Convention serves as a powerful force for the articulation of political norms in Europe. As such, Thursday’s judgments may increase the incentives for Member States to place increased weight on their ECHR obligations when deciding whether to participate in or facilitate a proposed foreign operation in the future.

Cooperation with US Programs

Second, this may have a ripple effect for States outside the Council of Europe. As Hathaway observes, “on first glance, the legal findings appear limited to Europe — the Court found violations of multiple articles of the European Convention of Human Rights, to which the United States is not a party. But these findings are important for the United States, as well as other collaborating states outside Europe,” she said. “The decision against the U.S.’s European accomplices may very well make European states more wary of assisting U.S. programs, especially CIA programs, in the future.  The likely impact on future collaboration is hard to gauge, but it could be significant.” As Brian Chang has explained on Just Security, European concerns over ECHR compliance can have a direct impact on US policy by limiting the willingness of Council of Europe Member States to assist or facilitate certain US operations. Thursday’s decisions emphasized potential downsides to cooperation with US intelligence programs that may not pass ECHR muster – downsides that, as Alex Whiting has written previously, may even threaten the reliability of such assistance from our NATO allies.

As Hathaway further points out, “the Court found clear evidence that black sites existed, that torture took place at them, that there were bilateral agreements between the host states and the U.S. that permitted the sites to exist, and there were many statements in public records indicating that the host government officials knew or had reason to know that interrogation practices crossed the line into torture.  These facts are likely not limited to Romania and Lithuania.”

International Criminal Court Proceedings and Other Litigation

Third, the judgments may lead to greater calls for criminal accountability before the ICC. An ICC Pre-Trial Chamber  is currently considering the request by the Prosecutor to open an investigation into war crimes and crimes against humanity in Afghanistan. (Just Security has covered the probe in an online symposium.) The US is not a party to the Rome Statute establishing the ICC, which is one of several reasons that the viability of any such investigation or subsequent prosecutions are murky at best. As such, experts are keeping a close eye on how far the ICC proceeds down that path, waiting to see whether and to what extent it leads to a reckoning with the United States.  

The issuance of these two judgments, Whiting explains, “will likely increase pressure on the Prosecutor to focus on alleged U.S. crimes in Afghanistan and the black sites in Poland, Romania, and Lithuania once the Pre-Trial Chamber authorizes the investigation. That there has been some measure of accountability in these decisions, which rely in part on publicly-available information, will encourage the Prosecutor to consider whether individual criminal responsibility is also warranted. However, she will also be mindful of the differences between the ECtHR decisions and an ICC investigation: the applicable law is not the same, and while the ECtHR focused on state responsibility, the Prosecutor will need to establish individual culpability beyond a reasonable doubt.” 

Finally, although the judgments of the European Court of Human Rights may not translate directly into ICC proceedings, Hathaway points out that the former could well support “findings of violations of the Convention Against Torture, the International Convention on Civil and Political Rights, perhaps Common Article 1 of the Geneva Conventions (which require states to “ensure respect” for the Convention), and the Draft Articles on State Responsibility, not to mention regional human rights agreements. There is some potential, then, that these decisions could spark additional litigation not just in Europe but elsewhere as well.”

The Torture Debate

The implications of Thursday’s judgments may also include how the US handles its own history with torture. In the Al Nashiri judgment specifically, the Court offered an unequivocal censure of military commission procedures and the use of torture by US officials and policies.

“This landmark ruling keeps the issue of accountability for CIA rendition live and relevant,” said Just Security’s Fionnuala Ní Aoláin. “It underscores the necessity for a fuller accounting, whose day will inevitably comes, not least because the drip drip effect of these ECHR cases keep the issues and the methods used to torture persons during the CIA rendition program squarely in our sights.” 

Filed under:

CIAInternational Lawtorture

About the Author(s)

Katherine Cheasty Kornman

Legal researcher at Just Security and student at Yale Law School.

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