El-Masri v The Former Yugolsav Republic of Macedonia

With the Inauguration of President Obama for his second term fast approaching (20 January, 2013) it is worth considering just how far the United States and indeed the West has fallen from the lofty ideals that underpin the West’s claim to moral, if no longer financial and technological, supremacy. This West’s claim to moral superiority has again been put to the test and has again been found wanting. I’m referring here to the recent judgement by the Grand Chamber of the European Court for Human Rights (“ECHR”) in El-Masri v The Former Yugolsav Republic of Macedonia. The verdict was handed down on 13 December, 2012 and represents not only an important judicial critique of the CIA programme, which led to the enforced disappearance of numerous individuals after 9/11, but also underscores the failure of US courts to provide a remedy for the same human rights violations.

At this juncture it’s worth pausing for a moment to put our minds back to President Obama’s first Inauguration Address, for which former president George W Bush and former vice-president Richard B. Cheney were sitting a few rows behind the President elect. Many people living in the West and elsewhere will recall the power and the eloquence of Obama’s speech, a speech in which he said:

As for our common defence, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man – a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake.

In these two lofty sentences the President elect seemingly rejected the Bush-Cheney heritage of trampling on the United States’ international obligations under the Geneva Convention and the United Nations Convention Against Torture, while at the same time evading or violating the domestic laws of the United States. The question remaining is how much did all this hyperbole match the future reality?

Even a cursory reading of the ECHR’s judgement in El-Masri will show that not only did the Bush-Cheney diarchy trample on the United States’ international obligations, but it trampled on the rights and freedoms of many European Union member states. Worse, from the perspective of a citizen of the United Kingdom or Australia, the Bush-Cheney diarchy received the active support of the Pacific’s deputy sheriff Stumpy Johnny, aka Prime Minister John Howard, and his posse comitatus of slobbering sycophants as well as that beacon of liberalism in the Old Dart, Prime Minister Tony Blair.

Following an article in The Washington Post and a report by Human Rights Watch (“HRW”) published in early November 2005, the international media began reporting allegations that the CIA was running a system of secret prisons, including prisons in certain “central and east European democracies”. Numerous aircraft chartered by the CIA allegedly flew over, to and from European territory (benefiting, therefore, from airport facilities in Council of Europe member states) in order to transport suspects, completely illegally, to these secret centres. HRW expressly mentioned Poland and Romania. The press reports also quoted denials by officials from Poland, Romania, Latvia, the Czech Republic, Georgia, Armenia and Bulgaria.

On 5 December 2005 ABC reported, in turn, the existence of secret prisons in Poland and Romania that had apparently been closed following The Washington Post’s revelations. According to ABC, eleven suspects detained in these centres were then transferred to CIA facilities in North Africa. They were allegedly submitted to the harshest interrogation techniques (so-called “enhanced interrogation techniques”).

In an interview broadcast by the American channel ABC on 29 November 2005, the Director of the United States Central Intelligence Agency, Porter Goss, did not deny the existence of CIA secret prisons in various parts of the world where people suspected of terrorism were held. He did, however, categorically deny that the United States used torture, while refusing to pass judgment on certain interrogation techniques used by its services.

On 5 December 2005, Condoleezza Rice, the American Secretary of State, made a statement addressed to Europeans in which she did not, at any point, deny the existence of the alleged centres, or of the flights transporting detainees, but reaffirmed the need to resort to “extraordinary renditions” in the context of efforts to counter terrorism. The only thing that Ms Rice categorically denied was the use of torture.

On 3 November 2005, Mr Friso Roscam Abbing, spokesman for Franco Frattini, Vice-President of the European Commission and Commissioner for Justice, Freedom and Security, said that the Commission would be seeking further information, on the grounds that such secret detention centres would be a violation of the founding principles of the European Union. On 4 November he said that the Commission had no reason to doubt the denials by the Polish and Romanian Governments. On 14 November 2005, Mr Frattini told the European Parliament that he welcomed the investigation initiated by the Council of Europe and that his departments would be following it closely. On 7 December 2005, Mr Frattini wrote to his colleagues Jacques Barrot and Benita Ferrero-Waldner asking them to support the requests the Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary Assembly had submitted to Eurocontrol and the European Union Satellite Centre (EUSC). On 28 November 2005, the British Foreign Secretary, Jack Straw, asked the American authorities, on behalf of the European Union, for explanations of the alleged stopovers in Europe of aircraft chartered by the CIA.

One European Union (“EU”) citizen and victim of this clandestine programme of kidnapping and torture run by the CIA was German EU citizen Khaled el-Masri. On 31 December 2003, Mr El-Masri boarded a bus in Ulm, Germany, with a view to visiting Skopje in order, as he stated, “to take a short vacation and some time off from a stressful home environment”. At around 3 p.m. he arrived at the Serbian/Macedonian border crossing at Tabanovce. A suspicion arose as to the validity of his recently issued German passport. A border official checked his passport and asked him about the purpose of his trip and the length and location of his intended stay. A Macedonian entry stamp dated 31 December 2003, was affixed to his passport. On that occasion, his personal belongings were searched and he was questioned about possible ties with several Islamic organisations and groups. The interrogation ended at 10 p.m. Accompanied by men in civilian clothes who were armed, he was driven to a hotel, which later research indicated was the Skopski Merak hotel in Skopje (“the hotel”). Upon his return to Germany, Mr El-Masri recognised, through photographs available on the hotel’s website, the hotel building, the room where allegedly he had been held and one of the waiters who had served him food during his detention in the hotel.

The Mr El-Masri was taken to a room on the top floor of the hotel. During his detention at the hotel he was watched by a team of nine men, who changed shift every six hours. Three of them were with him at all times, even when he was sleeping. He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened with being shot. After seven days of confinement, another official arrived and offered him a deal, namely that he would be sent back to Germany in return for a confession that he was a member of Al-Qaeda.

On the thirteenth day of his confinement, Mr El-Masri commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the remaining ten days of his detention in the former Yugoslav Republic of Macedonia. A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany.

On 23 January 2004 at around 8 p.m., Mr El-Masri was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany. Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport.

Upon arrival, still handcuffed and blindfolded, he was initially placed in a chair, where he sat for one and a half hours. He was told that he would be taken into a room for a medical examination before being transferred to Germany. Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus. As stated by Mr El-Masri’s lawyers at the public hearing of 16 May 2012, of all the acts perpetrated against him, that had been the most degrading and shameful. According to Mr El-Masri, a suppository was forcibly administered on that occasion. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. The aircraft was surrounded by armed Macedonian security guards. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. An anaesthetic was also administered over his nose. He was mostly unconscious during the flight. A Macedonian exit stamp dated 23 January 2004, was affixed to the applicant’s passport.

According to the applicant, his pre-flight treatment at Skopje Airport, “most likely at the hands of the special CIA [United States Central Intelligence Agency] rendition team”, was remarkably consistent with a recently disclosed CIA document describing the protocol for the so-called “capture shock” treatment. It reads, inter alia:

Capture … contribute to the physical and psychological condition of the HVD (High-Value Detainees) prior to the start of interrogation …

1) Rendition

… A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods …

Upon landing, Mr El-Masri disembarked. It was warmer outside than it had been in the former Yugoslav Republic of Macedonia, which was sufficient for him to conclude that he had not been returned to Germany. He deduced later that he was in Afghanistan and that he had been flown via Baghdad.

After landing in Afghanistan, Mr El-Masri was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military style blanket and some old, torn clothes bundled into a thin pillow. Through a window at the top of the cell, he saw the red, setting sun. Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the “Salt Pit”, a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects.

During his confinement he was interrogated on three or four occasions, each time by the same man who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German Government were ignored.

In March 2004 Mr El-Masri, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charge. As a consequence of the conditions of his confinement and his hunger strike, the applicant’s health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested it on several occasions.

On 10 April 2004, the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it. After this procedure, Mr El-Masri was given some canned food, as well as some books to read.

Following his force-feeding, Mr El-Masri became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days. Around that time, Mr El-Masri felt what he believed to be a minor earthquake. In connection to this, was submitted the “List of significant earthquakes of the world in 2004”, issued by the US Geological Survey (USGS) on 6 October 2005. According to this document, there was one earthquake on 5 April 2004 in the Hindu-Kush Region, Afghanistan.

On 16 May 2004, Mr El-Masri was visited by a German speaker who identified himself only as “Sam”. The latter visited Mr El-Masri three more times prior to his release. On 21 May 2004, Mr El-Masri began his second hunger strike.

On 28 May 2004, Mr El-Masri, blindfolded and handcuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje. He was told to change back into the clothes he had worn upon his arrival in the former Yugoslav Republic of Macedonia and was given two new T-shirts, one of which he put on. He was then taken to the waiting aircraft, wearing a blindfold and earmuffs, and was chained to his seat there. “Sam” accompanied him on the aircraft. He said that the plane would land in a European country other than Germany, but that he would eventually continue on to Germany.

When the aircraft landed, Mr El-Masri, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. Mr El-Masri was aware of men getting out of the car and then of men getting in. All of the men had Slavic-sounding accents, but said very little.

Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia. The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed Mr El-Masri’s long hair and long beard and told him that he looked like a terrorist. He was then driven to the Mother Teresa Airport in Tirana. He was guided through customs and immigration control without inspection and put on a plane to Frankfurt, Germany. An Albanian exit stamp was affixed to the applicant’s passport.

On 29 May 2004 at 8.40 a.m., Mr El-Masri arrived at Frankfurt International Airport. He was about eighteen kilograms lighter than when he had left Germany, his hair was long and unkempt and he had not shaved since his arrival in the former Yugoslav Republic of Macedonia. Immediately after arrival in Germany, the applicant met Mr M. Gnjidic, a lawyer practising in Ulm.

The ECHR eventually concluded that Macedonia violated Mr El-Masri’s right to be free of torture and other inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (“the Convention”); his right to be free from arbitrary detention under Article 5 of the Convention; and his right to respect for his private and family life under Article 8 of the Convention.

The court found Macedonia liable not only for its mistreatment of Mr El-Masri, but also for its failure to carry out an effective investigation after the fact. It directed that Macedonia pay Mr el-Masri 60,000 euros in compensation.

The ECHR’s decision is important for several reasons. It represents the first time a court has expressly found that the CIA’s extraordinary programme constituted torture. The decision, moreover, reaffirms that torture can occur without direct physical assault, based on what the court describes as “the cumulative and acute psychological effects of anguish and stress” intentionally used to break a person’s will.

The ruling thus rejects the notion that liability may be evaded if one country (here, the United States) solicits the assistance of another country (here, Macedonia) by engaging in proxy detention and extrajudicial transfers. In doing so, it undercuts the modus operandi of extraordinary rendition, where the US relied on other nations to assist it in circumventing legal rules.

The ECHR’s ruling contrasts sharply with the approach of US courts. El-Masri had previously brought a civil action against CIA officials responsible for his mistreatment in federal court in the United States. The US Court of Appeals for the Fourth Circuit, however, upheld the dismissal of the action pursuant to the state secrets privilege, thus precluding any judicial determination of Mr El-Masri’s underlying claims of abuse. And this, President Obama, is what makes the words you uttered at your Inauguration in 2008 nothing more than hollow sounds. How can denying a victim of United States sanctioned torture his just compensation, or indeed any compensation at all, allow those founding ideals of the United States to “… still light the world, and prove an example of not [giving] them up for expedience sake?”