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Briefing Library European Parliament

Briefing Library European Parliament

Library Briefing Library of the 18/01/2012

Extraordinary of suspects The EU Member States' alleged assistance to the CIA

SUMMARY Following 9/11, the Bush In this briefing: Administration established an "extraordinary  Context rendition" system, whereby terrorism suspects were transferred, secretly detained and  Human rights issues interrogated outside the US.  Obstacles to investigation There has been growing evidence of EU  Inquiries in Member States suspected of Member States' (MS) collaboration with the secret US, allegedly including stopovers by US aircraft at European airports and the setting  European Parliament's position up of secret detention sites in three MS. This  Main references would arguably amount to serious violations of international human rights law. Context The European Parliament and the (CoE) have investigated those The term “” denotes allegations and initiated judicial and the extra-judicial transfer of a suspect parliamentary investigations in individual MS. between countries, in contrast to the However, the investigators' work was hindered formalised process of , i.e. the by the refusal of both the US and European universally accepted form of rendition governments to disclose information, in most regulated by bilateral agreements.1 cases on grounds of "state secrecy". In November 2005, No criminal proceedings against agents (HRW), and ABC televi- involved in extraordinary rendition could be sion reported that, following 9/11, the CIA initiated in the US. Those in the EU have not led had been running an extraordinary to the extradition of American agents. rendition programme for terrorism suspects Amongst the EU institutions, the European outside the US. These allegations were soon Parliament has been the major proponent of corroborated by other disclosures by press holding MS accountable for their participation and NGOs. In September 2006, President in irregular rendition. It severely criticised the George W. Bush confirmed the existence of Council and MS governments for not doing such a programme. enough to shed light on the actions of their Secret transfers secret services. The US programme involved illegally abducting or arresting individuals in one state and transferring them by military or CIA flights to the Guantánamo facility or to ”black sites” (secret prisons) located in third countries, many of them with no legal protection against . The suspects were typically held in secret and “incommunicado” detention (the authorities denied or refused to confirm the Image Copyright Stephanie Swartz, 2012.

Used under licence from Shutterstock.com detention, and detainees had no access whatsoever to the outside world, including to family, judicial authorities and legal

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 1 of 6

Library Briefing Extraordinary rendition of terrorism suspects counsel). Those “ghost detainees” were also , , and subsequently also subjected to practices referred to by , evidence was found of the President Bush as “enhanced existence of secret detention sites set up for techniques“ or “an alternative set of proce- use by the CIA. Moreover, officials of some dures“, some of which are widely believed to MS allegedly interrogated prisoners at amount to torture. Guantánamo and other secret detention facilities. MS' alleged complicity Whilst MS governments have consistently If these allegations are true, it would mean denied such allegations, there has been that several MS have seriously breached growing evidence of MS' cooperation with their obligations as regards the protection of the US authorities in extraordinary rendition. human rights stemming from both As early as 2006 and 2007, the CoE Special international and EU law. Such a conclusion , , and the European would be given further weight by the fact Parliament issued reports providing a that some of the detainees were EU citizens detailed account of this cooperation. Further or individuals legally resident in the EU. evidence was presented in the 2010 UN Joint Study on Global Practices in Relation to Secret Detention and two other CoE Human rights issues reports.2 Several elements of the extraordinary The evidence gathered strongly suggests rendition programme raise doubts as to MS' that, between the end of 2001 and the end compliance with international human rights of 2005, at least 1 245 flights operated by instruments. This seems particularly the case the CIA and an unspecified number of with respect to the way suspects were military flights entered European airspace or abducted, their ill-treatment in detention, stopped over at airports in MS and some and their transfer to countries in which they other European countries. were likely to be subjected to torture. The MS concerned were , , The norms of human rights law which could , , , , , be applied with respect to extraordinary , Lithuania, Poland, , Romania, renditions include the prohibition of: , and the UK. With respect to Figure 1 - The global "spider's web" of secret detention and unlawful inter-state transfers

Stopover points Pick-up points Staging points Detainee transfer / drop-off points

Prestwick Stockholm Shannon Szymany Prague Ramstein Timisoara Bangor Aviano Tuzla Bucharest Rome Skopje Tashkent Baku Incirlik Washington Athens Santa Maria Larnaca Baghdad Algiers Kabul Rabat Amman Islamabad

Guantanamo

Banjul Source: Council of Europe Parliamentary Assembly, 2006.

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 2 of 6

Library Briefing Extraordinary rendition of terrorism suspects

 inhuman or degrading treatment  The 2007 International Convention  torture for the Protection of All Persons from Enforced Disappearance.  refoulement (transfer to a country where a risk of torture exists), and There are no mechanisms however to  enforced disappearances (depriv- guarantee the enforcement of these ation of , followed by the conventions. concealment of the detainee's fate or The Council of Europe whereabouts and placing them EU MS are all members of the CoE, and so outside the protection of law). the European Convention on Human Rights The fact that MS agents were not directly applies to them. Therefore, non-compliance involved in most of the alleged acts would with Articles 2, 5 and 6, and, most not appear to waive their responsibility for importantly, Article 3 ECHR may lead to breaches of human rights which reportedly cases before the European Court of Human occurred. Rights (ECtHR) These provisions are enforceable however only to the extent that In this connection, it is widely held that in CoE members are willing to implement the case of surrender of a person, ECtHR judgements. diplomatic assurances of the US position on extraordinary receiving state are insuffi- rendition and Several detainees have cient to guarantee the filed cases before the Following 9/11, the US argued that ECtHR (e.g. Al Nashiri v. sending state's compliance neither the traditional instruments of Poland, Othman (Abu with human rights law. criminal law nor the laws of war Moreover, it is argued that (including the Geneva Conventions) Qatada) v. the UK, Babar the activities of foreign intel- applied to terrorism. The category of Ahmad and others v. the ligence services operating in "unlawful " was UK, and v. the EU may be subject to less introduced with respect to terrorism Lithuania). The applicants stringent legal provisions suspects who could thus be detained claim the responsibility of than those of the MS and for indefinite time without any access MS for participation in to the US judicial system. Moreover, should thus be monitored. violations of human rights the US consistently held that human This was not the case for and for failure to conduct rights conventions only apply to the effective investigations. American military bases territory of the ratifying state and 3 located in the EU. therefore cannot be invoked in EU law and human International law respect of the programme operating rights instruments outside the US. The Lisbon Treaty has The UN instruments changed the human Relevant UN instruments include: rights architecture of the EU, by giving the EU Charter of Fundamental Rights binding  Convention against Torture and force equal to the Treaties. Its provisions Other Cruel, Inhuman or Degrading may therefore be enforced by the Court of Treatment or Punishment, and in Justice of the (CJEU). particular Article 3 which prohibits the transfer of individuals to states This does not however open the door for where they would be in danger of individuals to hold MS accountable for their being subjected to torture. past actions in the area of secret services' cooperation, which is outside EU  International Covenant on Civil and competence. Political Rights, and in particular Article 7 prohibiting torture and cruel or degrading treatment.

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 3 of 6

Library Briefing Extraordinary rendition of terrorism suspects

Obstacles to investigation position to determine the scope of a parliamentary investigative mandate. In the MS concerned, various state and non- Otherwise, it would take control over its state actors tried to shed light on the MS' own overseers. The Court further argued role in extraordinary rendition. MS' that parliaments have their own rules which authorities have however denied their guarantee the protection of state secrets.4 participation, in many cases without The European Parliament and the CoE conducting any formal inquiries. In MS in Special Rapporteur also considered that which investigations were carried out, many national governments have not cooperated commentators pointed to their lack of with them to a satisfactory level. They thus independence, ineffectiveness and insuffi- had to rely to a large extent on information ciently public character. provided by "whistle–blowers" and non– The unwillingness of the American side to state actors. cooperate has been a major obstacle. Not Accountability of perpetrators only did the US authorities announce that In the US no criminal proceedings have any extradition request would be refused on been initiated against agents involved in national security grounds, they also extraordinary renditions. Nor could redress consistently refused to grant any form of be sought in civil courts, as illustrated by the legal assistance to European investigators. dismissal of El Masri’s action for damages for The competent authorities in Europe also acts of torture on the grounds of the so– invariably blocked the disclosure of called ““. information. One argument put forward was In the EU some attempts were made to that such disclosure could lead to the denial bring the perpetrators of illegal acts to of terrorism-related intelligence sharing justice, but these have been unsuccessful. with the US, as illustrated by the position of the UK Foreign Secretary in the Binyam The in Italy has been the Mohamed case. only case so far to lead to convictions of officials engaged in irregular rendition. 25 The MS authorities invoked “state secrecy“ individuals, including 22 CIA agents, were and the protection of national security sentenced to lengthy imprisonment. The without any further explanations. Such a judgement was delivered in absentia, which general refusal of disclosure by German has been criticised by some commentators.5 authorities in the Khaled El Masri case led a The extradition of the American citizens group of Bundestag members to request a charged or convicted was never officially ruling of the Federal Constitutional Court to requested by the Italian government. assert the parliament’s right to information. The Court stated that the government’s In a German investigation into the abduc- interest in protecting its internal decision- tion of El Masri, arrest warrants were issued making process must always be weighed against 13 CIA agents. Again, there was no against parliament’s interest in being follow-up by the executive branch, as those informed. The executive branch cannot refer warrants were never transmitted to the in general terms to state secrecy as American authorities. A complaint aimed at justification for withholding information obliging the government to request the from the legislative branch. Specific and extradition of the American agents was detailed reasons for refusal have to be given rejected by the competent German court. in each individual case. Parliamentary Two criminal complaints were also filed with oversight is one of the most important the German Federal Prosecutor, based on prerogatives of the parliament. For it to be the principle of universal jurisdiction, in an effective, the government must not be in a

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 4 of 6

Library Briefing Extraordinary rendition of terrorism suspects attempt to hold high-ranking US officials Moreover, the Polish accountable for "war crimes" committed in confirmed that between 2002 and 2004, CIA the "". The Prosecutor flights landed at the nearby Szymany announced however that he would not airport. open an investigation, using his discretiona- An application against Poland was recently ry power in this respect.6 lodged at the ECtHR on Al Nashiri’s behalf. In the UK, 16 people were granted Romania significant financial compensation for The Romanian government has consistently alleged ill-treatment by the secret services. denied allegations of the existence of black The UK Government arguably agreed to sites in Romania, and of CIA planes having such a settlement to avoid long-lasting landed in Kogalniceanu military airfield. The court cases and being forced to divulge inquiry conducted by the Romanian intelligence in court. It did not admit Parliament has been criticised by the CoE however to any wrongdoing by its secret Special Rapporteur as “superficial”. services. Lithuania Inquiries in Member States suspected The inquiry by the Seimas, initiated in of secret detention November 2009, concluded that two secret detention centres existed in Lithuania. Poland However, it did not establish whether In Poland, the allegations were first anyone had been detained in those facilities. addressed by the parliamentary commission Therefore the parliamentary committee responsible for oversight of the secret recommended a criminal investigation. The services. The commission, which worked in latter was started in January 2010 only to be camera and without minutes, held a one- suspended in January 2011 due to day meeting in December 2005, following “information shortages“. This decision was which it denied the existence of any CIA justified by the statute of limitations as well prison in Poland. as the refusal of the American authorities to However, in March 2008, the Polish Public provide legal assistance. Prosecutor launched an official investi- European Parliament's position gation, which led to the identification of "high-value detainees" who had been The Parliament has played a bigger role than secretly held in Poland. Two of them – Abd any other EU institution in investigating the al-Rhim al-Nashiri and Abu Zubaydah (both allegations.7 To this end a special committee currently incarcerated in Guantánamo) – – the Temporary Committee on the Alleged were granted victim status. Despite use of European countries by the CIA for the repeated requests by the Polish prosecutor, transportation and illegal detention of American authorities refused to assist him. prisoners (TDIP) – was set up in 2006. The The information from the prosecution was Committee's report was published in 2007. made public mainly thanks to Polish NGOs, In its 2007 resolution the Parliament which repeatedly addressed requests for formulated 46 detailed recommendations to information to the prosecution on the basis MS, the Council and the Commission. It of the Polish Freedom of Information Act. endorsed the TDIP Committee's report and The evidence gathered by various actors denounced the lack of cooperation of many strongly supports the hypothesis that a MS and the Council with the Committee. It was run by the CIA in the village of also requested that a "clear and forceful , where several detainees were declaration" be issued by both the Council interrogated and subjected to torture. and the MS calling on the US Government to

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 5 of 6

Library Briefing Extraordinary rendition of terrorism suspects put an end to the practice of extraordinary Main references rendition. It further encouraged national parliaments to continue or to launch Torture and secret detentions: the UN investigations, in particular through the perspective and the role of the European Union setting up of parliamentary committees of / Nowak, M. and Hall, J. European Parliament, inquiry. 2011. A 2009 resolution reiterated some of those Abuse of state secrecy and national security: recommendations and stressed that the EU obstacles to parliamentary and judicial scrutiny institutions and bodies involved in the of human rights violations / Parliamentary Assembly of the Council of Europe (PACE), 2011. transatlantic dialogue should share information with Parliament. It was not the Disclaimer and Copyright first time the latter problem had been raised, as the Parliament had consistently This briefing is a summary of published information and does not necessarily represent the views of the author or complained about the unwillingness of the the European Parliament. The document is exclusively Council to answer information requests addressed to the Members and staff of the European from the TDIP Committee.8 Parliament for their parliamentary work. Links to information sources within this document may be The EP itself has also been subjected to inaccessible from locations outside the European criticism for having abandoned its investi- Parliament network. © European Union, 2012. All rights reserved. gation following the TDIP report.9 http://www.library.ep.ec

Endnotes

1 Such as the Agreement on extradition between the European Union and the of America. 2 Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States / PACE, 2006; Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report / PACE, 2007; Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners / European Parliament, 2007, and Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations / PACE, 2011. 3 Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners / European Parliament, 2007. 4 PACE, 2011, op. cit. pp. 14–15. 5 All human rights are equal, but some are more equal than others: the extraordinary rendition of a terror suspect in Italy, the NATO SOFA, and human rights / Jenks, Ch. and Talbot Jensen, E. Harvard National Security Journal, 12 November 2010. 6 CIA – 'Extraordinary Rendition' flights, torture and accountability – a European Approach / ECCHR, January 2009, pp. 127–131. 7 Besides the resolutions analysed in this section, the Parliament addressed extraordinary rendition in its 2005 resolution on presumed use of European countries for the transportation and illegal detention of prisoners by the CIA, as well as the 2006 and 2009 resolutions on Guantanamo prisoners and the 2010 resolution on the fundamental rights in the European Union. 8 e.g. Parliament criticised the Council for withholding information on the December 2005 informal transatlantic meeting of EU and NATO foreign ministers, as well as for not providing a full dossier from the meetings of two Council working parties with senior representatives of the US Department of State in early 2006. 9 Torture and secret detentions: the UN perspective and the role of the European Union / Nowak, M. and Hall, J., European Parliament, p. 8.

Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 6 of 6

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