A protest against extraordinary rendition/wikimedia
The Commissioner for Human Rights of the Council of Europe (CoE), Europe’s 47-member human rights body, Nils Muižnieks, marked the twelfth anniversary of the 9/11 attacks with a statement remembering victims of the attacks for whom the world has held a silence lasting more than 12 years, reflecting “on the anti-terrorist response adopted by the USA and Europe […that allowed] unlawful detentions and interrogation techniques amounting to torture, […and] caused further suffering and violated human rights law.” With respect to European states, this was a reference to their involvement in the CIA’s extraordinary rendition programme, “involving abduction, detention and ill-treatment of suspected terrorists”.
While “governments have been unwilling to establish the truth and ensure accountability for their complicity in the unlawful programme,” this may well be because in some cases they are still complicit. The statement limits activity to between 2002 and 2006, but it is erroneous to assume that the practice is not ongoing. Unlike his broken pledge to close Guantánamo Bay, Barack Obama never made any such promises about extraordinary rendition.
The coalition government is accused of involvement in rendition cases, mainly relating to east African states. One such torture case involved the “rendition” of three Kenyans following the Kampala Bombings in 2010; they were reportedly questioned and tortured in the presence of MI5 agents. They sued the government to admit to this but a ‘secret court’ hearing last year ruled against disclosure.
There is also the bizarre case of Mahdi Hashi, a British citizen who was stripped of his nationality shortly before “disappearing” in Somalia last summer only to re-emerge charged with terror offences in US custody months later. He is currently on hunger strike over the harsh conditions of detention he faces in the US. The secrecy surrounding the issue overall makes it impossible to know how prevalent the practice remains.
Muižnieks gives a nod to the comprehensive and thorough report issued by Open Society Foundations (OSF), Globalizing Torture, in February this year. It lists 54 states that are known to have assisted the extraordinary rendition programme, 25 of whom are CoE members. How can states be held accountable when “little has been achieved or even initiated”?
Given that the programme was “designed to place detainee interrogations beyond the reach of the law”, it is unsurprising that the most effective remedies are available through legal channels. Italy is so far the only country to have secured convictions, upheld by its supreme court, for collusion in extraordinary rendition. As most states have failed to take action, the European Court of Human Rights in Strasbourg, offers a possible avenue. This is the same court whose jurisdiction the Coalition government would like to rid itself of.
In December 2012, in El-Masri v Macedonia, the court awarded damages to a German citizen who was “rendered” from Macedonia to Afghanistan in a case of mistaken identity, holding the state responsible for the rendition, failing to investigate or offer remedies. Other cases are currently pending by Guantánamo Bay prisoners against Poland, Lithuania and Romania. However, while the Court “could further expose the lawlessness that has characterised the CIA programme”, it is a court of last resort, that only be referred to once all other domestic legal avenues have been exhausted, a costly and lengthy process. Domestic courts can and should do better.
The statement singles out Germany and the UK for their efforts in this respect. In the latter, the result has been secret out-of-court settlements on more than one occasion. Criminal prosecutions have fallen through largely due to a lack of evidence or private settlements. Where the British government was forced to make a disclosure in the case of Binyam Mohamed, it emerged that the government had misled the courts, the public, and parliament about what it knew, proving it cannot be trusted on this matter. Most importantly, “The UK Government has so far denied any liability”.
The upshot of the cases involving Guantánamo Bay prisoners has been one of the most contentious pieces of legislation in the past few years, the Justice and Security Act 2013, rolling out the use of secret courts and evidence, prejudicing what details torture victims can ever know about their ordeal. Although Muižnieks concedes “secrecy is sometimes necessary to protect the State, it should never serve as an excuse to conceal serious human rights violations.”
In its latest observations on the United Kingdom earlier this year, the UN Committee Against Torture picked up on this point too, stating that secret court proceedings “may adversely impact on the possibility to establish State’s responsibility and accountability.” Both the UN Committee and Muižnieks ask the UK government to publish the report into the findings of the now defunct Detainee Inquiry to “clarify its role” in “rendition and torture operations”.
With official denial and an almost complete lack of media scrutiny, the potential for accountability appears to have been lost. Twelve years of secrets and lies, however, have not made the issue go away. Muižnieks concludes that “It is high time to set the record straight”.
Both the European taxpayer funding state collusion in crimes against humanity and the victims of these crimes have a right to know about them. The failure to investigate and hold officials and intelligence agents accountable at all levels has translated into the worsening human rights and civil liberties situation across Europe, as this “continued impunity breeds contempt for democracy and the rule of law.” Civil society and the judiciary will continue to do what they can, in spite of the obstacles and “national security” excuses placed in their way; yet, as wishful as it sounds, it is ultimately up to states to act.