Europe Leads on Rights, Part I.

As we begin 2013, the European Court of Human Rights has surpassed the US Supreme Court as the world’s leading protector of individual rights. On December 13, 2012, the ECHR did what the Supreme Court refused to do: acknowledge and seek to remedy the wrongs committed in the post-9/11 so-called “Global War on Terror.” Rather than defer to executive privilege claims for national security secrecy, as their American counterpart has done, Europe’s judiciary acted to uphold the rule of law and human rights.

In El-Masri v. The former Yugoslav Republic of Macedonia, a 17-judge panel in Strasbourg unanimously held that Macedonia violated Europe’s prohibition against torture and inhuman or degrading treatment for its role in the abduction and unlawful detention of Khaled el-Masri, a German citizen seized by Macedonian police off a bus at a border crossing in 2003 while on holiday (see the ruling at: http://www.lawfareblog.com/wp-content/uploads/2012/12/CASE-OF-ELMASRI-v.-THE-FORMER-YUGOSLAV-REPUBLIC-OF-MACEDONIA1.pdf). Mr. Masri was held incommunicado for 23 days and threatened with execution before being turned over to the CIA at Skopje airport where he was beaten, drugged and then flown to a secret prison in Afghanistan where he was held and tortured for 4 months.

The judges found beyond any reasonable doubt that Masri was tortured: “Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning of the term established by the case-law of the United Nations Committee against Torture.” The judges found violations of Macedonian, European and international law, including the European Convention on Human Rights (holding that Articles 3 – Prohibition of Torture, 5 – Right to Liberty and Security, 8 – Right to respect for private and family life, and 13 – Right to an effective remedy, were violated), the 1963 Vienna Convention on Consular Relations, the 1976 Covenant on Political and Civil Rights (which in part binds that “no one shall be subjected to enforced disappearance”), the 1984 Convention Against Torture, and more.

Mr. Masri’s nightmare has been well-documented – by the Council of Europe, the German Parliament, lawyers and journalists (*) – yet it took a decade to get a court to affirm that he was in fact unlawfully abused. Rather than a show trial, Masri for a decade faced a no trial sham – unable to get his day in court as the US government tried to conceal what it did to him. US officials acted to block German and Spanish criminal inquiries, as well as US civil proceedings. As the 17 judges in the ECHR grand chamber condemned the horrific abuse and torture of an innocent man mistaken for a terrorist by out-of-control state agents acting in the name of security, the cover-up has finally been exposed.

Thanks to courageous whistleblowers and journalists, we know that many European states were complicit in the CIA system of secret prisons and other post-9/11 abuse. The head of the ACLU human rights program said the Masri ruling “sends the message to European nations that they have a heightened obligation to investigate their complicity and cooperation with the illegal CIA extraordinary rendition program.” James Goldston, executive director of the Open Society Justice Initiative, who represented Masri before the ECHR, described the ruling as “a comprehensive condemnation of the worst aspects of the post-9/11 war on terror tactics that were employed by the CIA and governments who cooperated with them.”

Although the ECHR lacks jurisdiction over the United States, its ruling is a powerful rebuke of the tactics used by the CIA and other US state actors in the name of fighting terror, and also of the US courts for failing to hear the claims brought by Masri or any of the other victims of the US policy of kidnapping, secret imprisonment and torture.

December 13 marked the first time that a court had ruled on Masri’s claims, though he has been seeking his day in court for 8 years. The ECHR ordered Macedonia to pay him 60,000 Euros ($78,000 USD). Masri and his lawyers say that the case has never been about money. Amnesty International called the judgment “a historic moment and milestone in the fight against impunity.” Predictably, the CIA declined to comment.

Masri’s initial lawsuit in the US sought an apology and explanation for his mistreatment. He received only silence. The Supreme Court dismissed Masri’s lawsuit in 2006 on the basis that it would expose state secrets. The Supremes refused to hear his case without comment, simply rubber-stamping the executive branch claim of privilege and thereby shirking the constitutional duty of an independent judiciary (See “Supreme Mistake” at http://www.praguepost.com/archivescontent/4483-supreme-mistake.html). Denied his day in court in America, Mr. Masri got it in Europe. Following the ruling, Masri’s lawyer, Mr. Goldston, commented, “For so long as Washington refuses to examine its own conduct, it will fall to courts in other countries to uphold the rule of law. And, as Thursday’s decision makes clear, they will.”

If truth and fairness are the pillars of justice, then America’s response to the abuses committed in the ‘war on terror’ is manifestly unjust. The law aims to right wrongs with remedies, and to punish lawbreakers so as to deter future misconduct. Europe has taken an important step in that direction. America continues a path of denial and impunity for lawbreakers.

Plausible deniability no longer exists. As Justice Helen Keller wrote in her concurring opinion, joined by three other judges on the panel, Mr. Masri “was denied his ‘right to truth’, that is the right to an accurate account of the suffering endured and the role of those responsible for that ordeal…in enforced disappearances cases the right to the truth is a particularly compelling norm in view of the secrecy surrounding the victims’ fate.” In such cases truth is more important to healing victims than money, and it is vital to punishing wrongdoers and upholding the rule of law.

Europe has become the beacon of human rights. America note: To be a leader, you’d better lead, get out of the way, or risk being left in the dust or run over. Part II of this series of articles will look at the significance of the ECHR’s Masri ruling, critique the Obama administration on justice, further examine how Europe has led, and consider why we all have a stake in Mr. Masri’s struggle for justice.

About the author:

The author, an attorney and constitutional law scholar, has written for TNP since 2006. He currently lectures on law, ethics and critical thinking at University of New York in Prague. His “Degradation of the rule of law in response to terrorism: a failed approach,” was published by Palgrave-Macmillan in 2011.

published: 9. 1. 2013