Lessons Learned from the Latest Rendition Cases at the European Court of Human Rights
The European Court of Human Rights (ECtHR) recently finalized its judgment against Lithuania in a case involving Guantanamo Bay (GTMO) detainees. The ECtHR ordered Lithuania to pay Mustafa Ahmed Adam al-Hawsawi 130,000 Euros as redress for violations of the European Convention on Human Rights (ECHR). The case followed the Court’s now familiar pattern in responding to cases brought by GTMO detainees against European States that permitted the U.S. Central Intelligence Agency (CIA) to detain and interrogate the applicants within their territory between 2003 and 2006.
The cases are remarkable in that they provide data points in understanding what actions might constitute an internationally wrongful act on the part of a State when assisting an ally. They arose in the context of providing aid and assistance to a party to an armed conflict and they are particularly relevant to NATO partners that are also party to the ECHR. While international focus has recently been placed on support for Ukraine and Israel, the ECtHR has added clarity to the grey zone of permissible support at the intersection of international humanitarian law (IHL) and international human rights law (IHRL). Notwithstanding the fact that the ECtHR naturally grounded its rulings on the ECHR, the cases help explain broader principles of international law, and are binding on nearly all NATO members.
This post seeks to draw lessons from these recent ECtHR cases and consider their potential application in the broader context of international support to a party to an armed conflict.
ECtHR Rendition Cases
Dating back to 2012, the ECtHR has ruled on several applications it refers to as “secret detention site” or “rendition” cases. Each involves a former or current detainee lodging an application with the ECtHR against a respondent European State. In each case, the applicant alleged he was detained and interrogated by the CIA within the territory of the respondent State, with the respondent’s assistance.
The cases involve five different detainees in a total of nine cases. Three of those five detainees remain at GTMO and have lodged applications with the ECtHR.
Al Nashiri
Abd Al Rahim Hussayn Muhammad Al Nashiri is a Saudi Arabian citizen, alleged to have organized the bombing of the USS Cole, among other attacks. Al Nashiri was captured in 2002 by the CIA and, like the two detainees referred to below, he was held as part of the high value detainee (HVD) program before being transferred to GTMO in 2006. Al Nashiri is a defendant in an active U.S. Military Commissions case, the next hearings for which are set to take place in July. Al Nashiri first lodged an application with the ECtHR against Poland in 2011. Four years later he brought a similar application against Romania, which concluded in 2018. Earlier this year he brought a complaint against Lithuania, which is currently pending a response from the Lithuanian government.
The ECtHR ruled in Al Nashiri’s favor in his applications against both Poland and Romania. The ECtHR found Poland had violated Al Nashiri’s rights under ECHR Articles 3 (prohibition on torture), 5 (right to liberty), 6 (right to fair trial), 8 (right to private and family life), and 13 (right to an effective remedy). The ECtHR ordered Poland to pay Al Nashiri 100,000 Euros. It also required Poland to seek assurances from the United States that it would not seek the death penalty in his Commissions trial. The ECtHR’s ruling against Romania in 2018 was nearly identical.
Zubaydah
A Palestinian born in Saudi Arabia, Abu Zubaydah was captured in Pakistan in 2002 and placed in the CIA’s HVD program because he was suspected of being a senior Al Qaeda leader. He remains at GTMO today. In 2013, Zubaydah submitted a complaint against Poland at the ECtHR, and the Court combined his application with that of Al Nashiri, described above, who had applied two years before.
Like Al Nashiri, the ECtHR ordered Poland to pay Zubaydah 100,000 Euros for violations of various articles of the ECHR, including Article 3 (the prohibition on torture). Zubaydah brought discovery proceedings to the U.S. Supreme Court, in which the Court sided with the government in denying his and Poland’s request for discovery, submitted under a provision of U.S. statute 28 USC § 1782. Thus, the United States has not provided information to assist the respondent States in the ECtHR rendition cases.
Al-Zubaydah also lodged an application with the ECtHR against Lithuania in 2011. In 2018, the Court found that Lithuania had also violated his rights under the same articles, and ordered Lithuania to pay him 130,000 Euros.
Al-Hawsawi
Mustafa Ahmad al-Hawsawi is a Saudi Arabian citizen, captured in Pakistan in March 2003 and suspected of being a travel and financial facilitator to the 9/11 hijackers. Al-Hawsawi was held in CIA custody until 2006, when he was transferred to GTMO where he remains today. In March 2016 al-Hawsawi submitted an application to the ECtHR against Poland, alleging that the authorities had violated Poland’s obligations under the ECHR while he was detained there in 2003.
In June 2016 the CIA declassified documents that incidentally revealed al-Hawsawi was never detained in Poland, causing his counsel to request dismissal, which the ECtHR granted later that year. Al-Hawsawi then lodged an application against Lithuania, alleging that the State had violated the ECHR when he was detained (but not abused) there by the CIA in 2003. In April 2024 the ECtHR found in favor of al-Hawsawi and ordered Lithuania to pay him 130,000 Euros.
Other Cases
This list does not include Khaled El-Masri or Abu Omar Nasr, whose applications the ECtHR typically describes as among the secret detention site cases. But El-Masri and Nasr were not detained at GTMO and the respondent States were more actively involved in their detentions.
The ECtHR’s Findings
Procedurally, the Court followed an interesting pattern in finding that the respondent States had violated their respective ECHR obligations. It relied not on direct evidence but on heavily redacted government reports and expert testimony. The most recent case, Al-Hawsawi v. Lithuania, for example, relied substantially on the testimony of an academic who claimed to have developed novel techniques to “unredact” U.S. government documents, “both literally and metaphorically” (see para. 115 of the final judgment).
This approach puts the respondent States in a difficult position. They do not have evidence that might allow them to refute these experts who are, ostensibly, testifying from public sources. Further, while the ECtHR requires proof beyond a reasonable doubt, the only requirement for evidence to be admissible is that it “would have probative value to a reasonable person” (Al-Hawsawi v. Lithuania, para. 248). Perhaps more significantly, the ECtHR expressly drew “strong inferences” against the respondent State, to ensure the government did not benefit from its failure to disclose documents or to provide convincing explanations of how the events occurred (Al-Hawsawi v. Lithuania, para. 137).
In each case, the ECtHR found that the applicant established three critical facts: (1) that the applicant was detained in the respondent State; (2) that the applicant was tortured, abused, and held arbitrarily; and (3) that the host nation knew or ought to have known of that abuse, torture, and unlawful detention.
This final conclusion is surprising in the most recent case of Al-Hawsawi, given that the Lithuanian government seems to have known very little about the detention operations. Even the redacted U.S. records noted that Lithuanian officials held, at best, an “incomplete notion” of the detention facility’s function (para. 67). There was also no information indicating that Al-Hawsawi was subjected to enhanced interrogation techniques in Lithuania (para. 153). Nevertheless, the ECtHR inferred that the CIA’s “standard conditions of confinement” had been applied to the applicant, including continuous noise and light (para. 156). It further inferred, without the applicant’s testimony, that previous instances of abuse placed the applicant in “constant fear” that he may be abused again and this fear would have existed throughout his time in Lithuania (para. 213).
The Relevance of IHL
The ECtHR cases do not discuss the implications of a state of armed conflict on detention operations, except to note that Article 3 of the ECHR does not allow for exceptions or derogation. Thus, while the Court frequently refers to the U.S. “war on terror,” (always in quotes) it implicitly finds the status of this war irrelevant. The primary focus of each judgment is the ECHR’s Article 3, the substance of which would effectively apply even under the lex specialis of IHL. The provision reflects obligations that are binding on States under common Article 3 of the Geneva Conventions and reads simply, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Torture can constitute an internationally wrongful act, even if committed during an armed conflict. The respondent States in the secret detention cases did not dispute that the CIA had breached the United States’ international obligations through the HVD program. Rather, the primary question was whether the respondents had breached the applicants’ rights under the ECHR by failing to protect the applicants from those abuses. The application of IHL was not relevant to this question.
The Law of State Responsibility
The Court discussed the law of State responsibility in each of the secret detention site cases (see e.g., Al Nashiri v. Poland, paras. 447-59). In this context, the ECtHR cited Article 16 of the International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles). Article 16 provides,
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.
In its Al Nashiri v. Poland judgment, the ECtHR did not expressly apply this article to the facts of the case. Nevertheless, it provided commentary on the concept of aiding and assisting, under the ILC Articles, stating in dictum, that “State responsibility might arise from either active co-operation in or passive tolerance of [detention operations]” (para. 448).
The cases do not provide any factors or tests for determining what types of aid or assistance could lead to State responsibility. But in applying the principle from Article 16 of the ILC Articles, the Court held that the respondent States had provided aid and assistance, or that they “cooperated in the preparation and execution” of the operation because they had allowed the CIA to use their airspace and airports, allowed the CIA to build a detention facility on their territory, and provided security and logistics to that facility (Al Nashiri v. Poland, para. 442).
The knowledge element of the ILC articles is met where a State provides aid and assistance “with knowledge of the circumstances of the internationally wrongful act.” But in most of the secret rendition site cases, there was little or no evidence of respondents having direct knowledge of mistreatment. s the ECtHR stated, “The interrogations and, therefore, the torture inflicted on the applicant . . . were the exclusive responsibility of the CIA,” and it was unlikely the respondent States knew what was happening inside the facilities (Al Nashiri v. Poland, para. 517). The former President of Poland expressed the idea more plainly, “If a CIA agent brutally treated a prisoner in the Warsaw Mariott Hotel, would you charge the management of that hotel for the actions of that agent?” (para. 240). But the ECtHR held that even if the respondents “did not have, or could not have had, complete knowledge of the HVD Programme,” they nevertheless had a positive obligation under the ECHR to take reasonable steps to avoid the risks of ill-treatment (Zubaydah v. Lithuania, para 575; Al-Hawsawi v. Lithuania, para 207).
Third-party interveners argued that the ECtHR must read this positive obligation “in light of Article 16 of the ILC Articles” (Al Nashiri v. Poland, para. 449). The ECtHR did not expressly rely on the ILC Articles but ruled that a State’s responsibility is engaged whenever the authorities “fail to take reasonable steps to avoid a risk of ill-treatment, about which they knew or ought to have known” (para. 509). In the absence of any evidence of direct knowledge, the ECtHR concluded that the host nations “ought to have known” of the CIA’s activities because: (1) a series of circumstances, including public reporting on U.S. practices, should have alarmed the respondents to practices that were manifestly contrary to the ECHR; and (2) the host nations failed to take reasonable steps to discover and prevent those practices from occurring in their territory (para. 442).
Conclusion
The ECtHR concluded in each of these cases that the respective host nations violated their obligations under the ECHR because they provided aid and assistance to a partner operating in their territory when they ought to have known, and taken steps to prevent, that partner from mistreating the applicants.
The ECtHR’s views are binding on most NATO partners, and these cases may serve to inform States’ policies when engaging with international partners. Further, the cases require parties to the ECHR (including most NATO partners) to take reasonable steps to ensure a State’s activities on their territory are lawful. This might include a requirement to actively monitor operations within a facility built by another State.
What is significant about Al-Hawsawi’s most recent case is that Al-Hawsawi was not, in fact, abused during interrogations in Lithuania. Nevertheless, Lithuania was found to have violated the ECHR through its “acquiescence and connivance” in the broader program. That program caused “permanent emotional and physical distress” from “past experience of torture,” which would have “inevitably” caused “fear of his future fate” while Al-Hawsawi was in Lithuania (para. 213).
This may be a case of bad facts making bad law but taken broadly, it places an additional positive requirement on host nations to come to a more fulsome understanding of the nature and purpose of a partner’s operations before allowing part of that operation to take place in their territory.
Naturally, many host nations already apply rigorous standards before permitting partners to operate within their territory. But U.S. and other officials should not be surprised if, moving forward, NATO partners begin asking more questions, and placing more conditions on hosting or assisting bilateral or multilateral operations.
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Major R. Scott Adams is currently an investigator with the Department of Defense Office of Inspector General.
Photo credit: Sfisek
