On March 16, 2012, the Grand Chamber of the European Court of Human Rights (ECtHR) heard for the first time a case involving a victim of the U.S. Central Intelligence Agency’s (CIA) program of extraordinary rendition.
Khaled El-Masri claims that in 2003, Macedonian intelligence agents apprehended and detained him before subsequently handing him over to the CIA. Nine years later, in May 2012, El-Masri filed the complaint to the ECtHR alleging unlawful abduction and mistreatment by the Macedonian Ministry of the Interior. The case, El-Masri v. The former Yugoslav Republic of Macedonia, marks the first time an international human rights court has considered the merits of a claim related to the participation of a European state in the U.S.-led renditions program. The upcoming decision by the ECtHR is set to clarify the scope and extent of state responsibility under the European Convention on Human Rights (ECHR) for involvement in extraordinary renditions carried out by states not party to the Convention.
The CIA’s extraordinary rendition program is a global operation launched after the attacks of September 11, 2001, that covertly transfers terror suspects across borders without legal extradition. El-Masri, a German national of Lebanese descent, asserts in his petition that Macedonia held and interrogated him for twenty-three days before handing him over to the CIA for interrogation in Afghanistan concerning suspected links to al-Qaida. He claims the CIA detained him “incommunicado” with no communication to the outside for more than four months until setting him free in Albania after the CIA determined El-Masri had been confused with a similarly-named terrorism suspect.
El-Masri’s complaint alleges that the above actions constitute violations of Articles 3, 5, and 13 of the ECHR.
The claim under Article 3, which prohibits torture and inhumane or degrading treatment, is a complicated issue for the Court to decide. El-Masri’s claim does not accuse the Macedonian government itself of having tortured him, but instead argues that Macedonia violated his rights under Article 3 when the government failed to stop the CIA from detaining him in Macedonia or transferring him to Afghanistan. After being relinquished to the Grand Chamber, the Court must now determine whether the ECHR obligates member states to refrain from cooperating with or facilitating the violation of the Convention by non-member states.
The ECtHR previously ruled in Osman v. United Kingdom that a state is responsible when it “knew or ought to have known” that there was a real and immediate risk to rights protected by the ECHR, and the State failed to “take measures within the scope of [its] powers.” In that case, the United Kingdom authorities allegedly failed to protect the right to life of the applicant’s husband from threat posed by an individual. Similarly, in El-Masri’s case, the ECtHR must determine whether Macedonia can be held responsible if Macedonian authorities knew or ought to have known there was a real risk that once in U.S. custody, El-Masri would be subjected to torture and inhumane treatment.
In addition to Article 3 violations, El-Masri’s petition also claims that his twenty-three-day detention by Macedonian authorities along with his transfer to CIA agents violated his Article 5 ECHR right to liberty and security of person. Article 5 Sec. 2 allows only lawful arrest or detention, prohibiting secret and arbitrary detention and disappearance. If the ECtHR determines that the arrest and detention of Mr. El-Masri was outside any legal process and that Macedonian authorities failed to step in to protect Mr. El-Masri’s right to liberty and security, they will likely find a violation of Article 5.
Lastly, El-Masri’s petition also claims that the failure to investigate and prosecute his arrest, detention, and transfer to the CIA violated his right to remedy guaranteed by Article 13 of the Convention. Article 13 of the ECHR provides a right to effective remedy in national courts for violations of ECHR rights. The remedy required by Article 13 must be effective in practice as well as in law, particularly in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent state. The court must now decide if Macedonia failed to conduct a prompt and effective investigation into the events and thus denied Mr. El-Masri effective remedies under Article 13.
Since the ECtHR is a court of last resort, the Court’s upcoming decision is El-Masri’s only opportunity for legal remedies in relation to an ECHR State Party’s involvement in the U.S.-led renditions program. The Court must weigh political tensions within the Member States as well as possible tension with United States against the claims of human rights violations for which the alleged victims have not found judicial refuge. Detained individuals and their advocates have thus far struggled to bring successful challenges in U.S. courts, so if the Court determines that no violation occurred that can be brought under the ECHR, it will close yet another option for legal challenges to the CIA rendition program.