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ON March 27, 2012, a hearing was held in Brussels before the Civil Liberties Committee of the European Union which is investigating the complicity of EU member nations in the CIA’s secret rendition programme.
The programme, which CIA officials say was discontinued in 2009, secretly transported prisoners to countries where torture was legal so that it could be used to extract information from prisoners. The EU parliament began the investigation in 2005, when the Council of Europe estimated that nearly 1,245 rendition flights may have passed through European airspace.
Days after the hearing, Polish officials acknowledged that the CIA had established a secret prison in the remote southern region of Poland, where rendered prisoners were taken and tortured. Amid the outcry following the revelation, the former head of Polish intelligence Zbigneiw Simiatkowski was charged with taking part in the establishment of the prison in a small village called Stare Kiejkuty.
The former Polish president and prime minister both denied knowledge of the existence of the prison which is alleged to have housed Khalid Sheikh Mohammad, Abu Zubaydah and Abdul Rahim al Nashiri who had been formerly held at the prison in Guantanamo Bay, Cuba.
After news of the indictment broke; angered Polish leaders accused the US of attempting to lead their newly democratic country astray by demanding collusion in torture and rendition. Polish Prime Minister Donald Tusk said that Poland had become the “political victim” of the dirty game being played by the US.
Late last year, the UK-based NGO Reprieve along with other human rights organisations had similarly released information about a secret prison in Romania.
Additional reports released by the organisation in August of last year following analysis of documents released pursuant to a court case, showed that a single plane, a Gulfstream N85VM, was used for over 55 such flights transporting prisoners to prisons.
Some of the countries which allowed the flights over their airspace or allowed prisoners to be transported to their territory for torture, include the United Arab Emirates, Pakistan, Egypt, Iraq, Afghanistan, Italy, Germany and Morocco.
While the US and Poland have released information pursuant to the flight records, most European and Middle Eastern countries have refused to do so and ignored requests of human rights organisations.
After the testimony presented at the European Parliament last week, European lawmakers have expressed their commitment to obtain the information and produce a detailed report regarding European complicity in the illegal transfer of prisoners to places where they may be interrogated via torture.
The CIA’s recipe behind rendition was simple: torture is illegal in the US and hence prisoners were transported to other countries where similar legal constraints do not exist so that interrogations using tactics such as starvation, sleep deprivation and water boarding could be used against prisoners.
Several of the prisoners allegedly rendered were those suspected of having information that could prevent future terrorist attacks. Some of them like Mustafa Nasar who lived in Kuwait, Afghanistan and finally Pakistan, where he was arrested, have never been found.
In another case, the prisoner was never the alleged terrorist at all. Khaled Al Masri, a German citizen was kidnapped and abducted in Macedonia and then transferred to a CIA black site in Afghanistan where he was tortured for several months. It was a long time before the interrogators finally discovered that he was not the man his interrogators had been searching for and he was released.
Taking their cue from European human rights activists, lawyers at the American Civil Liberties Union have also decided to pursue accountability before transnational organisations.
Frustrated by being thwarted again and again by US government officials who cite “state secrets privilege” against releasing information about torture or rendition, the ACLU last week filed a petition before the Inter American Commission of Human Rights.
Filed on behalf of three Afghans and three Iraqis, the petition alleges that they were subjected to torture including beatings, cutting with knives and assault. The petition argues that Articles I and XXV of the American Declaration on the Rights and Duties of Man prevents American military officials from subjecting them to torture and inhuman treatment.
The failure of US government officials to carry out a criminal investigation of these cases, and the rejection of the petitioners’ case in a US federal court, the lawyers for the ACLU argue, creates a situation in which international avenues are the only ones that can provide redress.
The outcome of the ACLU petition before the Inter American Commission on Human Rights is unlikely to be known for some time. However, in both the European and American cases, the turn to international mechanisms of accountability or torture comes at a difficult time.
Reeling from the financial crisis and years of squabbling over issues of collaboration and jurisdiction, international legal venues lack the resources, staff and powers of enforcement to really be credible or accessible venues of adjudication in complicated cases involving several countries.
The European Court of Human Rights which has the longest history and the most resources has over 5,000 decisions still awaiting implementation. One report by the Open Society Justice Initiative further revealed that in 500 cases in which the UN Human Rights Committee found violations of civil and political rights, less than one-fifth have received a satisfactory response.
The issue of torture, secret prisons and the flouting of law by flying prisoners to lawless places reflects the challenges before a world where territoriality means little and secrecy means power.
Whether it is terror groups using porous borders or spy agencies operating secret prisons, the dominant challenge facing justice in a post-terror world is the invisibility both of terrorists and those hunting them down.
The victims of this new world of secret wars are those left to guess at the truth from the few visible shreds they can gather, mourning the illogic and injustice of both the suicide bomber and superpower.
The writer is an attorney teaching political philosophy and constitutional law.
