Placing a leash on a dragon? Defiance of the United States by the ECHR


By Monique Bouffé

#ECHR #Torture #Guantanamo #HumanRights

Last month, the ECHR (European Court of Human Rights) rejected Poland’s appeal of al-Nashiri v. Poland and Abu Zubaydah v. Poland for the Grand Chamber to rehear the entire case. This is a fundamental step for the protection of human rights with regard to the rule of law and torture, and shows the Court beginning to extend, if unintentionally, its influence outside of the scope of the Council of Europe.

These cases in question concern Poland’s assistance of the United States’ ‘High-Value Detainees Programme’, by allowing CIA agents to abduct suspects, secretly and forcibly transfer the applicants across borders to secret detention centres, where they were subsequently detained and tortured for information on Al Qaeda and the Taliban. This was done to at least 136 persons without any access to legal counsel, family or friends and without any information or knowledge of when, or if, they might be released. Both applicants in question are still detained indefinitely in Guantanamo Bay without charge.

The substance of these programmes and methods listed in the declassified CIA Report are shocking to many, but what perhaps is more shocking is how countries that have acceded to the ECHR have allowed them to happen within their borders. Some of the ‘methods’ utilised by the CIA to obtain information include ‘walling’, where the person is pushed backwards into a false wall, cramped confinement, sleep deprivation (which is to last ‘no longer than 11 days at a time’) and the infamous waterboarding, where the detainee has a cloth placed over his/her mouth and nose whilst water is poured onto the cloth, producing the sensation of drowning and suffocation.

These are used amongst many other ways of interrogation, designed to mentally and physically harm the person without causing visible damage. 54 States have actively participated in this programme, whether is it providing detention centres, allowing transfer in or out of their territory, providing information on suspects, or other means. Many other States have participated in more passive ways. We see yet another example of law being outrageously breached by the political concerns of the United States, completely disregarding the basic fundamental rights of human beings over whom it has no territorial or national jurisdiction.

The vast majority of us may be thankful that the prohibition of torture is perhaps the most inviolable of all rights. Not only is it codified in six separate Conventions, it is a recognised peremptory norm of the international community. Regardless, this primitive and grotesque instrument continues to be used, even where it has been deemed completely ineffective. When well-established law is trumped by political considerations – as it so frequently is when the need for justice matters most – lawyers may hang their heads in despair as international law is increasingly accused of being ineffectual. If in this case the United States is Goliath, international law appears to have misplaced its sling.

This is why the ECHR has an increasingly global role to play. The Court in the joint cases against Poland is not only condemning Poland’s participation, but is condemning the actions of the CIA as illegal. The binding nature of these judgements forces States to comply with their human rights obligations over political delicacies with the United States. Compliance does not just mean a lack of interference, but establishes a duty to enact appropriate measures, whether they be legislative, judicial, administrative or educative, to ensure the protection of all persons within its territory. Even if the international legal community cannot force the United States to comply with its human rights obligations, it can attempt to isolate these violations to as few states, and as few people, as possible.

There are logistical problems with this that cannot be overlooked – namely that a single triumphant judgement can only have a limited external consequences. In order to have a significant impact the Court has to adjudicate over individual complaints against individual States. For example, Abu Zabedah’s legal team have also won a case in the ECHR against Lithuania on similar grounds. A judgement against one State cannot force another to pay reparations to victims is has responsibility for- but it may begin to outline a clear rule that the Extraordinary Rendition Programme is disgraceful, both legally and morally (if, apparently, that was not obvious before). These States, however, may give a second thought to their legal obligations when complying with the imposing requests of the United States.

There are not many ways in which, on a global scale, one can envisage certain human rights commitments triumphing over international political considerations. The ECHR last week offered us a glimpse of well needed hope that law is capable of buffering political hegemony. Whether this will have tangible long term consequences for the global avocation of human rights and dignity, one can only wait and see- perhaps not with baited breach, but with renewed confidence.

1529690_10153947324560112_114277377_o (2)Monique Bouffé is a LLM student in Leiden University studying Public International Law. Her interests include the status of internally displaced persons in non-international armed conflict and the protection of refugees resulting from environmental crises. After her degree she intends to work for a non-governmental organisation giving legal aid to refugees and putting pressure on States to comply with their non-refoulement obligations. In her spare time she enjoys travelling and occasionally plays the guitar in her local restaurants in The Hague.

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