The truth about torture: on disclosure and obfuscation

The creation of an international court that could rule over severe crimes, including the absolute prohibition, should function as an effective deterrent for states members to the Convention. The legacy of clear, accessible judgments should provide for a solid cornerstone in order to ensure the respect of the rule of law across its jurisdiction. But when it comes to torture, the entire process of accountability relies on disclosure, that respondent states block each and every step of the way.

Al-Nashiri v Poland

In December 2013, the Court held a seminal hearing in the case of Al-Nashiri and Abu Zubaydah v Poland, one of the first applications lodged regarding member states’ collaboration – collusion – with the CIA in its rendition, detention and interrogation (RDI) program. The two men, still held in Guantanamo Bay, were detained in a black site, a secret prison, on Polish territory, where they were tortured before being sent to the naval base in Cuba. Poland has always categorically denied its involvement in what could come to be known as the torture program. During the hearing, the Grand Chamber repeatedly asked the government of Poland to provide any memorandum of understanding (MoU) that would have been undertaken with the United States. This could shed a much needed light on the extent to which Poland was expected to collaborate and hold responsibility for US intelligence activities on its soil. The hearing, which lasted over three hours, focused on repeated events of denial of access to information and documentation to the appellants and their lawyers. Ultimately, the Court requested Poland to comply.

Poland found itself in a position where documentation that had been submitted to the Court unequivocally pointed in the direction of collusion. It would be unthinkable that a state would allow foreign intelligence activities, especially of such wide-scale logistics – from the use of its airspace, airports, to detention facilities and armed guards – without prior contractual approval. The Court then offered Poland the possibility to submit any MoU under national security classification, provided by clause 33 of the Rule of the Court, so as to receive information on which to base a future decision without the documentation presenting a risk to the state by being disclosed along with the judgment and the rest of the case file. Upon this information being shared, I decided to challenge this classification, arguing that any deliberate collaboration with the CIA despite the actions being performed by agents in black sites – and the MoU perhaps even providing for Polish agents to be present during interrogations – was serious enough to warrant disclosure.

I received a letter a few weeks later from the Registrar’s Office that implied that Poland had not submitted anything despite the offer of the information to be classified, and that in any case, a judgment was forthcoming. Sure enough, the decision was published on July 24, 2014, not only making note that Poland had indeed collaborated in the violation of the absolute prohibition under Article 3, but that the state was found in negative inference with the Court, refusing to provide information with regards to the activities under litigation. In a landmark ruling, the Court decided that evidence collected with media reports, press investigations and gathered by legal investigators was sufficient to make a determination, and would not need government-issued documents. Poland sought to overturn the decision, only to be found trapped between a rock and a hard place: the Court had ordered that it sought assurances, on account of having an agreement with the United States, that Al-Nashiri would not be facing the death penalty. Al-Nashiri is currently facing a troubled military commission for charges carrying a death sentence. Poland either has to detail its relationship with the CIA, or interfere without the possibility of a result.

Al-Nashiri v Lithuania

The investigation of the black site in Lithuania, that arose with the case of Al-Hawsawi, has has considerable political ramifications at domestic level. It did not stop lawyers for the state to argue for a curious interpretation of state responsibility at a hearing before the Chamber in June 2016, denying the veracity of press reports, the substance of prior investigations, the role of EU rapporteurs in previous inquiries, but never the body of work compiled by the US Senate in a report which executive summary was released, partially redacted, in December 2014. The extent of the denial was perhaps even more egregious than that of Poland, in light of two years worth of media coverage of EU states’ collaboration in rendition, acknowledging detention of several detainees that could be identified, even recalling the specific methods of torture to which they were subjected. In a harrowing book, journalist Crofton Black, who testified about his years-long investigation to the EU Parliament inquiry into CIA rendition, talks about the various contracts undertaken to build the black site in Antaviliai, a small village ten miles north of Vilnius.

 

Past and present officials gave testimony; requests for information were filed with ministries, the State Security Department and the Border Guard, the Customs, the Civil Aviation Administration and airports. The press, pundits and politicians commented loudly from the sidelines, speculating and sniping. Daily, contradictory stories emerged, like ripples expanding and interfering with each other, tell-tale signs of an unseen shoal beneath the surface. While some spectators were eager for scandal, others remained sceptical. ‘Anything can happen, but why do we have to believe that this has happened?’ asked the former head of the military, Major General Jonas Kronkaitis. ‘There are many people who think that little green men arrive in Lithuania from Mars, but do we then carry out an investigation? No, we leave it alone.’

Even after the hearing, the denial was maintained in the face of unequivocal coverage. Black carried on releasing information, from photographs to court transcripts, in stark contrast with the arguments put forward by the Lithuanian government, for whom the activities of a foreign state on its sovereign territory may as well be fortuitous at best, and at the very least exempt from scrutiny. Interference from intelligence holds a very specific history in Central and Eastern Europe, the epicenter of the Cold War, for decades satellite of a surveillance state, later chosen to be host to NATO bases and post-German reunification deployment. It seems that, in Lithuania like in Romania, Estonia or Poland, a relationship with the CIA holds more power than adherence to legal requirements under international human rights law. Exposure to the suffering endured by former detainees, and the role played even by facilitating detention if not directly organizing it, leaves a mark on public opinion, supporting ongoing investigations. Evading the scrutiny of the Strasbourg court and the committee of the Council of Europe tasked with verifying the enforcement of its judgments can only diminish the country’s standing within the organization, perhaps not to the point, however, of weighing significantly enough against the foreign interests inherent to a special relationship with the United States.

Ireland v UK

 When the legal advice supporting the use of torture by the CIA post 9/11 was declassified, a footnote jumped at the face of many observers: Bybee, advising the government, issued a long opinion on the threshold between ill-treatment and torture, and based his decision on a 1978 judgment from the ECtHR. According to him, the final ruling in Ireland v UK, which application was lodged in 1974, endorsed the CIA’s interrogation methods as “harsh” or “enhanced” interrogation techniques, never crossing the threshold into the absolute prohibition. That an international court could have ruled so decisively back then surely reassured the US government, then proceeding with experimentation of some techniques on one of it earliest detainees, Abu Zubaydah. It was later found that some of the methods had not been sanctioned by the Office of Legal Counsel (OLC). Nevertheless, the existence of that threshold and the use of this justification to approve of what would have come to define abuses under counter-terrorism law in our generation was a jarring find.

Forty years onwards, new elements have emerged after decades of investigation through British archives. The team of surviving men detained during the Internment in 1971, colloquially referred to as the “Hooded Men”, have petitioned to have their case reopened before the Strasbourg Court. A judicial review was underway in Belfast, during which a judge found himself playing referee between requests to release documents and government lawyers arguing first that documents didn’t exist, then that more time was necessary to field through the archives and release them in the appropriate conditions. The frustration over access to the truth and the duty of investigation as interpreted through Article 2 of the Convention is palpable, and has journeyed all the way to Strasbourg, where the Court has granted a second extension to the British government in regards to justifying their position on one crucial point: deliberate omission.

The documents that were submitted by the British Government after the application was declared admissible were found to be incomplete. The respondent state had deliberately hidden parts of its research and activity logs in order for the evidence submitted by the appellants to fall underneath the threshold of torture; the Court, ruling the methods of interrogation were cruel and unusual punishment, in violation of article 3 still, did not make a finding of torture. Somehow, such an outstandingly infliction of suffering, not being an absolute in nature, did not carry the same weight, did not yield the same outrage, did not demand the same amount of responsibility. There is no impunity for a violation of Article 3, but that threshold, thus manufactured by a partial look at a complex picture comprised of state control of colonized territories and the irrational fear provoked by terrorism, seemed to somehow help the British government escape the obligations resting upon it for perpetrating acts of torture, namely, the prosecution of those responsible.

The broadcast of “The Torture Files” on Irish public channel RTE led to an awkward dance between Dublin, London, and Strasbourg, the complexity and political meanderings of inter-state cases being weighed down even more by the unwillingness to provoke any form of conflict in Northern Ireland, “rock the boat” in a way that could be perceived to jeopardize a hard-won, fragile stability. Uncovering a lie, no matter how blatant, has the potential to rattle, to unsettle, to generate mistrust. In the face of the abuses that have been committed between 2002 and 2009, and constantly threatened to reemerge by political candidates capitalizing on fear, disclosure is not only essential – it remains an obligation. Appearing before an international court which duty is to examine the degree to which domestic investigations are satisfactory should be in itself a signal that the rule of law has been coopted in the name of political power, corrupted by an executive necessity that the court exists to curb. Lying before the ECtHR is not just disregard for the most fundamental of obligations; when it comes to the absolute prohibition, it constitutes more than negative inference. It is obstruction.

Are there any consequences?

Beyond monitoring the implementation of the Court’s judgments via the relevant committee, it is difficult to assess whether the existence of such a jurisdiction has enough of a deterrent effect against human rights abuses committed in the name of counter terrorism. The political impact of possibly violating understandings and otherwise enshrined intelligence relations far outweighs the legal consequences of breaching the prohibition of torture; the argument of necessity, constantly debunked and dismantled by observers but always influential, seems somehow still opposable to fundamental rights. As the threat of terrorism comes and goes like the tide in a rapidly evolving world, as international law seeks to catch up with modified conflict paradigms, the trend is to separate the concept of national sovereignty from that of supranational accountability, to supersede the right to self-defense, to create a considerable and unbridgeable difference between intelligence activities and judicial transparency.

The outrage provoked by long lasting claims in the United Kingdom to withdraw from the Convention and a recent bill passed by the Duma to reserve the state the right to ignore the Court’s judgments is not enough. Education about the role of the Convention, its place in EU history and construction, the systems it implements and the political relations it has spurred and governed is paramount. Most importantly, it is not necessarily the Convention as an instrument, but education about human rights as a whole, the reasoning and faith behind the prohibition of torture, the evolution behind installing it as the unjustifiable crime, and the values that tie us together as an international community that can ensure the perennial role of the Court’s judgments against torture. The transparency that comes with an investigation requested under the right to a fair trial and the obligation to adjudicate will continue to shed light on why such work is crucial, essential for the respect of human rights worldwide.