Wednesday, May 16, 2012

Today: Extraordinary Rendition comes to Strasbourg

At 9.15 am Strasbourg time today, the Grand Chamber of the European Court of Human Rights will hear a complaint relating to the extraordinary renditions programme for the first time. In El Masri v Macedonia the complainant, Khalid El Masri (left)—a Lebanese national but German resident—will claim that Macedonia’s refusal to instigate a full and proper investigation of his rendition, together with the state’s direct involvement in the rendition itself, constitute a breach of the Convention. The application claims breach of Article 3 (torture and inhuman or degrading treatment or punishment), Article 5 (liberty and security) and Article 13 (effective remedy). 
Mr El Masri alleges to have been seized by Macedonian agents and held by them for 23 days, before being handed over to the Central Intelligence Agency in Skopje. He claims that he was then ‘rendered’ to Afghanistan where he was detained, interrogated, subjected to sustained violence, force fed (having been on hunger strike) and denied access to doctors, lawyers, diplomatic representatives and so on. After four months detention in Afghanistan he claims that he was returned to Europe. El Masri has attempted on several occasions to uncover the truth of what happened to him. How did Macedonian agents know that he was travelling from Ulm (in Germany) to Skopje such that they intercepted his bus and removed him? On whose orders and based on what information was he identified as a suspected terrorist? The United States has admitted that it made an “error” in the case of Mr El Masri, but the full picture of what happened has still not emerged. Macedonia has been asked for information as to the rendition of El Masri and Macedonia’s involvement in it by Germany, Spain, the Council of Europe and the European Parliament but satisfactory responses have not been forthcoming. For this reason, one presumes, the Open Justice Initiative is framing this as a case about ‘the right to the truth’.
This is a monumentally important case for the Convention and for Article 3. In some senses it is the most straightforward case imaginable to bring to Strasbourg because the involvement claimed is direct (Macedonia had ‘hands on’ involvement), verifiable (passport stamps and scientific evidence verify location), and the fact of rendition is not denied. There are many more complex cases in which questions as to jurisdiction and complicity under the Convention raise serious questions, the answers to which re not entirely clear (particularly where indirect involvement is alleged, such as intelligence sharing and facilitation through over-flight and stop-over rights). What will, perhaps, be most interesting in today’s hearing is the approach taken by Macedonia to the claim. Article 3 is one of the few Convention rights categorised as “absolute”; these are precisely the cases that test that alleged absoluteness. The idea of a right to the truth is, of course, more or less a rhetorical one but the rhetoric here is powerful. If Article 3 is to be successful as a protective provision it seems that actions violating that article must be disclosed with disclosure being a cogent form of accountability here, especially as torture has always been said in the jurisprudence of the Court to carry a particular “stigma”. Domestic procedures can be circumvented or, indeed, simply not established such that accountability-based disclosure does not happen; today will test whether the European Court of Human Rights can effectively push back against that potential in the dark world of rendition.
Readers will be interested to see that the hearing is due to be webcast on the Court’s website; it ought to be possible not only to watch live but also to 'listen back' afterwards. Further background information on the case is available here; IntLawGrrls' posts on extraordinary rendition here.

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