About a month ago, on Thursday 31st of May, the European Court of Human Rights (ECtHR) ruled that Romania and Lithuania allowed the United States Central Intelligence Agency (CIA) to operate on their territory, violating the European Convention on Human Rights (ECHR). These States are accused to have imprisoned alleged terrorists in secret prisons, after they were kidnapped by the CIA. If the existence of secret prisons like this is well-known in Afghanistan, Morocco, Egypt or Thailand, silence is preferred concerning Europe. Indeed, as one of the most active defender of human rights of the world, Europe prefers to hide it. This is why the two ECtHR cases are very important. In order to examine how Europe upholds fundamental human rights when it comes to terrorism, this article will first examine the judgements of the ECtHR, before observing the outcomes of the verdict, and finally questioning if Europe is taking the path of the US on terrorism issues.
The European Court of Human Rights, a watchdog in the fight against terrorism
After the 9/11 attacks on the United States (US), the US CIA launched a program of secret detention, torture and rendition creating secret prisons for terrorists all around the world. The Prison of Guantánamo (Cuba) is the symbol of these prisons specifically created for terrorists. These detention centres are the perfect example illustrating how terrorism threats can justify the violations of human rights. Also called “black sites”, their existence was disclosed to the public opinion in 2005 by The Washington Post, before being officially revealed by the former American President George W. Bush in 2006.
CIA black sites – US senate intelligence committee
These prisons constitute the theatre of grave human rights violations as reported by Amnesty International. As part of these US-led programs, individuals were illegally detained and transferred to secret facilities in other countries, where many of them were beaten up, deprived of food and sleep, or ill-treated. Some of them, who were supposed to be the most dangerous one were subjected to waterboarding, a form of torture in which a person is held facing upwards while water is poured in large quantities over their face, giving them the feeling that they are drowning. These reports were confirmed first by an ECtHR ruling in 2014 against Poland, and then, this year in two cases against Lithuania and Romania.
On Thursday, 31 May, 2018, in the Abu Zubaydah v. Lithuania and the Al Nashiri v. Romania cases, the European Court of Human Rights ruled that Lithuania and Romania breached some ECHR rights[i].
Concerning first Abu Zubaydah[ii], he is a stateless Palestinian who is currently held at the United States Guantánamo Bay Naval Base in Cuba. He is suspected of having planned the 11th September 2001 attacks and a senior lieutenant to Osama bin Laden. He was the first so-called “high-value detainee” (HVD) detained by the CIA at the beginning of the “war on terror”. First detained in Thailand before being moved to Poland (2002-2003), to Guantánamo, to Morocco, to Lithuania (2005) and then to Afghanistan (2006) before coming back to Guantánamo, he filed a lawsuit against Poland and Lithuania before the ECtHR. He claimed the violation of article 3 of the Convention, meaning the prohibition of torture. According to him, his detention included interrogators putting a black cloth over his face and pouring water over it so he could not breathe, slamming him into a wall and slapping his face, playing loud music while he was kept in a tall box, depriving him of food, and keeping him naked in a cold environment. He testified that doctors had referred to him he had nearly died four times during months of interrogation. He also told he had been kept in continuous solitary confinement throughout his undisclosed detention. He had no knowledge of where he was being held and no contact with anyone except for his interrogators or guards. He stated that he had suffered from blinding headaches and an acute sensitivity to sound. He had more than 300 seizures between 2008 and 2011 and at some point, during his captivity he even lost an eye. Considering all these facts and consequences, the court ruled the violation of article 3 (prohibition of torture) by Lithuania. But it also ruled the breach of article 5 (right to liberty and security) as Lithuania enabled the CIA to transport the applicant in and out of the country and hold him in secret, article 8 (Right to respect for private and family life), article 13 (right to an effective remedy). As a consequence, the court held that Lithuania had to pay the applicant 100,000€ in respect of nonpecuniary damage, and 30,000€ in respect of costs and expenses.
Concerning the case of Romania, Al Nashiri v. Romania[iii], the applicant is a Saudi Arabian national who is also being held in the facility of Guantánamo. He was suspected of committing an attack on the US Navy ship USS Cole in the harbour of Aden (Yemen) in 2000 and on the French oil tanker MV Limburg in the Gulf of Aden in 2002. After his capture he was held in Afghanistan, Thailand, Poland (2002-2003), Romania (2004-2005) and finally in Guantánamo. Allegedly he was the victim of various acts of torture including interrogators hanging him upside down for almost a month, subjecting him to waterboarding, making him stand in a box for a week, slamming him into walls. According to all of these facts, the Court ruled Romania violated Article 3 of the European Convention on Human Rights, on the ground of Romanian Government’s failure to effectively investigate Mr Al Nashiri’s allegations and due to its complicity in the CIA’s actions that had led to ill-treatment, violations of Article 5 (right to liberty and security), Article 6 § 1 (right to a fair trial within a reasonable time), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy). The Court held that Romania must pay Mr Al Nashiri 100,000€.
If Lithuania did not immediately respond publicly to the court’s findings, the Romanian Ministry of Foreign Affairs said that it was studying the ruling. He added that Romania was “firmly attached to the principle of respect for human rights,” including that the prohibition on torture must be obeyed “even under the most difficult of circumstances.”
What do these judgements reveal of European policy on terrorism?
These are the first rulings which condemn publicly the complicity of Romania and Lithuania in the violation of human rights on alleged terrorists. It has to be noted that the European Court of Human Rights had already condemned Poland for complicity with the CIA secret prison program in 2014, as well as the former Yugoslav Republic of Macedonia in 2012 and Italy in 2016[iv]. Julia Hall, Amnesty International expert on counter-terrorism and human rights in Europe said that “Romania and Lithuania have never been held accountable for their direct involvement in CIA rendition and secret detention.” According to her, it was the chance for “the victims’ lawyers to set the facts out before the European Court in the hope that it will help break the conspiracy of silence”.
These cases demonstrate that the national fight against terrorism is not above international laws. Indeed, by their actions, Lithuania and Romania clearly violated their international obligations including the ECHR, article 6 of the Treaty on the European Union, the Universal Declaration of Human Rights (1948) or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which they ratified in 1996 and 1990).
Furthermore, they did not only violate their obligations by their actions but also because of their omissions. Indeed, these States clearly failed to investigate properly after they were being accused of hosting these prisons. As a consequence, several NGOs are still calling them to investigate more on this. For example, Amnesty International challenged the Lithuanian authorities to investigate on particular topics such as links between aircraft landings in Lithuania and a number of other European countries, including Poland.[v]
However, we cannot deny that the European Parliament, and the Council of Europe (CoE) did take their responsibilities even before the ECtHR’s rulings. From 2005 they launched high-profile investigations at both national (parliamentary) and European (CoE) levels[vi]. Since 2015 the European Parliament is calling Member States to “investigate these allegations and prosecute those involved”, and this recommendation is also addressed to the US[vii]. Now, thanks to a precise documentation on the CIA-operated flights which used European airspace between the 11 September 2001 and the end of 2005, we know that 14 States – among which Germany, Sweden, Italy, Belgium, and Spain – landed illegal transfers. The only European State which launched an effective investigation on the subject was Italy which indicted 22 CIA agents who intervened in Milan in the kidnapping of Abou Omar, transferred in an Egyptian prison where he was tortured.
Consequently, considering all these information, it is clear that besides the will of Europe to condemn violations of human rights, most of Member States care less about it when it comes to terrorism. These States did not only let the violations happen, nearly half of them actively participated to it by allowing illegal transfers to or through their territory. This is why NATO assistance obligation cannot justify these actions. Although European States member of NATO have to “reinforce the exchange of information”, “grant adequate resourcing to support operations against terrorism” or “permit to the US and their allies to access to NATO Member States’ ports and airports”, most of them did more. Therefore, they cannot justify their actions on the grounds of assistance to NATO on terrorism. Hence M. Dick Marty, former President of the human rights commission at the Council of Europe, said that several States “were not victims of American machinations” since they “voluntarily participated” to it at different degrees[viii].
Finally, these judgements could encourage the International Criminal Court (ICC) to investigate on these cases and hold individuals accountable for their crimes. Indeed, until now, the Court could not investigate as it can only act as a last resort if national authorities failed to investigate, but Lithuania and Romania launched investigations or at least pretended to. However, since the ECtHR’s rulings Romania and Lithuania failed to investigate properly, it could justify an investigation from The Hague. Moreover, since the ICC opened an investigation on Afghanistan in 2017, many NGOs are calling the Court to investigate on CIA secret prisons in Europe or in Guantánamo.
These European Court of Human Right’s rulings are the concretization of a new phenomenon in Europe: if, on the one hand some Member States participated to the war on terror by cooperating with the CIA, on the other hand they are more and more restricting people’s human rights in the name of counter-terrorism.
Is the post-9/11 US political change happening in Europe?
Is Europe forgetting its values over terrorism? Are these values less important than people’s security?
The United States (US) might answer positively to this last question regarding the “war on terror” that started after the 9/11 attacks. This war on terror implied military operations in States involved in the attacks, the creation of secret facilities in Lithuania, Romania or Cuba but also the implementation of the Patriot Act, still partly in effect. This act provided the US administration appropriate tools in order to intercept and obstruct terrorism threats. Hence, the US government was able to collect millions of Americans’ communications records, ultimately violating its citizens’ right to privacy.
The United States, in this “war on terror” created several secret facilities in Europe where torture was the usual way to make interrogators, thanks to the complicity of European States. Therefore, the US did not theoretically violate international law while the EU States did. Moreover, it opened a prison in Cuba but as Guantánamo Bay is considered as a lawless zone the US did not formally violate international or their national laws even though multiple human rights violations are perpetrated there every day. Consequently, the prison is still open. Finally, the US has quit the UN Human Rights Council on June 19, 2018, partly because according to them, it played an « unending hostility towards Israel ». All of these facts demonstrate the lack of consideration that the US has towards human rights in general and especially when it comes to terrorism.
Thus, it seems that Europe is slowly evolving towards a policy like the US one. However, Europe appears to be more careful regarding human rights. Indeed, if a French patriot act was considered after Paris terrorist attacks of 13 November 2015, it did not succeed mostly because of European values’ weight. Indeed, Europe (the European Union and the Council of Europe) has always been a proponent of human rights and constantly stressing the importance of always weighing its actions against human rights. It follows that lowering human rights values would mean surrendering to terrorism
Although the EU finds it imperative that any counter-terrorism action should be in line with human rights, the US is willing to go further. The human rights area where both parties keep butting heads is the right to privacy and personal data protection. Any agreement the EU and the US have signed and concluded which was related to personal data, has been bogged down by opposing views on the protection of personal data although Europe is more and more flexible on the question.
Since the 2015 terrorist attacks in France, and the several attacks in all Europe after that, especially in Belgium, Germany or the UK, national governments are taking measures. At the European level, the Passenger Name Record (PNR) directive was directly adopted after several terrorist attacks in Europe in April 2016. According to Cristian Preda, European Parliamentary, a respectful fight against terrorism is possible if the solidarity between European States is increased, even and especially coming from those not directly affected by terrorism. This solidarity is represented by the adoption of this PNR directive by the members of the European Union. The directive provides the obligation of air carriers to transfer to Member States the PNR data they have collected. The directive regulates the way Member States can use the PNR data collected and provides for the necessary data protection safeguards. Member States had to transpose the directive before May 2018[ix]. If this directive demonstrates a will of solidarity to counter terrorism in Europe, it is also the target of critics as it violates people’s privacy. Hence it is contrary to article 8 of the ECHR which in its first paragraph states: “Everyone has the right to respect for his private and family life, his home and his correspondence.”. By collecting information on citizens, and often transferring them to other States, Europe clearly denies European’s right to private life, family life, home and correspondence.
Therefore, if the creation of these prisons is not a new issue, it reveals a lot on Europe’s current struggle against terrorism. In a continent rich of freedom values but which is the theatre of diverse terrorist attacks, the question is as follows; are security and full freedom compatible? The derogatory logic is undeniable as antiterrorist measures are, by definition, derogatory to the rule of law[x]. Furthermote, according to Marie Hélène Gozzi, a criminal law professor, the terrorism domain can be qualified as “endeitic of the delicate conciliation of two imperatives: the protection of fundamental individual freedoms and the defence of public order and collective security”.
Some scholars say Europe cannot have a wide program against terrorism if it does not make concessions on human rights and wants to keep the same level of protection of human rights. Would the solution be to lower European human rights standards and prioritize security? Then, would this mean that Europe is surrendering to terrorism? The question is: do people want to live in a safe environment with less freedom, or have freedoms but less security? It looks like European governments chose the first option. Indeed, according to François Dubuisson, an international law professor, the notion of “terrorism” is repeatedly used by governments in order to establish the existence of an imminent threat in order to justify the rapid adoption of measures breaching fundamental rights and going further than counter-terrorism actions. In the balance between human rights and security, the concept of terrorism is used in order to prevail security by establishing an emergency which needs to be addressed[xi].
This is what George W. Bush did from 2001. Justifying grave measures (war, violations of human rights in secret facilities) in the name of counter-terrorism. This, thanks to the complicity of many States which agreed to these values. Some already said that we came back to the Brezhnev’s doctrine of “limited sovereignty”- but this time it was imposed by the American President George W. Bush. Nevertheless, one thing is for sure, several European governments acted without the knowledge of the citizens, as supporters of Washington.
To sum up, it looks like Europe is acting first and then thinking, judging and repairing. Emergencies clearly make Europe trample on its values whether it concerns terrorism or the refugee crisis. However, at least contrary to the US, it is aware of its mistakes. But isn’t Europe’s role to think wisely and forethought?
An example of this attitude is the joint statement by the European Parliament, the Council and the Commission upon the adoption of the directive on Combating Terrorism in 2017, where the first sentence stated the need to respect human rights and the rule of law in the fight against terrorism[xii].
Another recent example is the adoption by the Council of Europe on the 4 July 2018 of a new ‘Triple P’ counter-terrorism strategy for 2018-2022 based on prevention, prosecution and protection, including assistance to victims. This document stressed the importance of respecting human rights and not jeopardizing them[xiii].
Hence, in theory Europe is undeniably willing to protect human rights, but the future will tell if these commitments will be honoured or not.
[i] Open society foundation website: https://www.opensocietyfoundations.org/voices/europe-s-human-rights-court-shines-more-light-cia-s-black-site-torture-program
[iv] The European Court of Human Rights, “Secret detention sites”, https://www.echr.coe.int/Documents/FS_Secret_detention_ENG.PDF
[v] Amnesty international website, https://www.amnestyusa.org/reports/lithuania-re-open-secret-prison-investigation-now/
[vi] European Union report on “CIA activities in Europe: summary of the European Parliament inquiry”, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+IM-PRESS+20060626BKG09303+0+DOC+PDF+V0//EN&language=EN
[viii] Le Monde diplomatique website, https://www.monde-diplomatique.fr/2006/08/CHIESA/13832
[ix] European commission website, https://ec.europa.eu/home-affairs/what-we-do/policies/police-cooperation/information-exchange/pnr_en
[x] Brochot, Vanessa, « Étude critique sur l’hypothèse de la circulation des normes en matière de lutte contre le terrorisme », Sécurité globale, vol. 20, no. 2, 2012, pp. 101-112.
[xi] Dubuisson, François, « La définition du « terrorisme » : débats, enjeux et fonctions dans le discours juridique », Confluences Méditerranée, vol. 102, no. 3, 2017, pp. 29-45.
[xii] European parliament website, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-0046+0+DOC+XML+V0//EN
[xiii] Council of Europe Website, https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016808afc96