In a unanimous ruling, the 17 judges in Strasbourg found that Macedonia had violated the prohibition against torture for its role in his abduction and rendition, in the case El-Masri v. “the former Yugoslav Republic of Macedonia”.
The story of this German national of Lebanese decent, wrongly suspected of being linked with al-Qaeda because of a homonymous mistake, was one of the most emblematic cases of abduction and secret detention by the CIA with the complicity of European countries. It has led to many investigations and reports from the Council of Europe, the European Parliament and the German Bundestag - who largely supported his allegations.
Khalid El Masri was arrested on 31 December 2003 by the Macedonian authorities at the border while traveling by bus from Germany. They kept him for more than three weeks in Skopski Merak hotel in Skopje, in a room guarded at all hours by armed Macedonian officers. He was kept in the dark day and night and was not allowed to leave the room. He was interrogated repeatedly and asked to confess that he was a member of Al Qaeda. His many requests to speak to a lawyer or to call his wife or at least to have a German translator were in vain. On 23 January 2004, he was eventually handed over to the CIA at Skopje airport, and forcibly boarded on to a CIA aircraft departing for Baghdad and then Kabul, handcuffed and blindfolded after having been stripped of his clothes, sodomized and beaten with sticks. He was held in Afghanistan for nearly 4 months at the notorious detention centre known as the “Salt Pit.”
During his detention, he was subjected to harsh treatment. He was beaten by armed guards, subjected to violent and prolonged interrogations, denied medical treatment, deprived of sleep and force-fed following a 27-day hunger strike. He was never charged with anything or brought before a judge, or allowed to call his family or anyone else in the outside world for that matter. He lost around thirty kgs while in detention. Investigations, among others, by the Parliamentary Assembly of the Council of Europe and the Commission of Inquiry into the ‘rendition’, confirmed those allegations.
When on 28 May 2004, the CIA realised it was holding the wrong man; he was flown out of Kabul on CIA aircraft to Berat-Kuçova Aerodrome in Albania. Arrested by border police officers, he was taken then to Mother Theresa Airport where he boarded a commercial flight to Frankfurt, Gremany. Back in Germany, his abuse was far from over as he started his struggle to obtain justice and reparation that only ended today with the final decision of the ECHR’s Grand Chamber.
In June 2004 prosecutors in Germany opened an investigation into his allegations and found that El-Masri did travel to Macedonia by bus at the end of 2003, and that he had been detained shortly after entering the country. Prosecutors also confirmed from his passport that he entered Macedonia on 31 December 2003, and exited on 23 January 2004. They conducted scientific tests also of his hair which proved that he had spent time in a South Asian country and had been deprived of food. Macedonia, however never investigated into these allegations and never opened a formal case.
A claim was filed in the United States in December 2005 by the American Civil Liberties Union on Mr El-Masri’s behalf against the former CIA director George Tenet. However, the court decision, which became final with the US Supreme Court’s refusal to review the case in October 2007, stated in particular that the State’s interest in preserving State secrets outweighed Mr El-Masri’s individual interest in justice. Obama’s administration as well as Bush’s before that systematically refused such claims arguing that protecting the State security should prevail. Rendition, secret detention programme, CIA’s interrogations stay classified in all cases.
The complaint before the ECHR was filed on 21 September 2009. In its ruling issued today, the Court found unanimously that Macedonia violated article 3 and concluded that “the complainant's account was convincing enough and that his claims on the ground of Article 3 were established beyond reasonable doubt». The Court concluded that the respondent State is to be held responsible for the inhuman and degrading treatment to which the applicant was subjected while in the hotel in the hands of the Macedonian authorities, for his torture at Skopje airport and for having transferred the applicant into the custody of the US authorities, thus exposing him to the risk of further treatment contrary to Article 3 of the Convention.
The Court considered also that the applicant's abduction and detention amounted to “enforced disappearance" as defined in international law and concluded then that Macedonia was to be held responsible for violating the applicant's rights under Article 5 of the Convention during the entire period of his captivity, which is the right to liberty and security.
Furthermore the Court found that Macedonia violated his right to respect for his private and family life when detained in the hotel incommunicado for several weeks as well as his right under article 13, which is the right to an effective remedy as his complaints were never the subject of any serious investigation. The Court condemned Macedonia to pay 60 000 Euros to Mr El Masri as compensation.
Other cases are pending before the ECHR such as the case of Abu Zubaydah and Abd al Rahim al Nashiri, both detained in Guantánamo Bay have introduced a complaint before the Court respectively against Lithuania and Poland which show the extent of European countries complicity on rendition programme. Isolated initiatives have been taken in some Member States of the Council of Europe, but none have helped to bring those responsible to account. In Italy for instance a criminal court convicted 23 CIA agents for their participation in the "rendition" of Abu Omar, abducted from a street in Milan and sent to Egypt.
Needless to say that this ruling is a victory and a landmark decision as for the first time methods used by the CIA are clearly described as torture, which is very promising for other victims that might seek compensations and send an important signal to the US authorities. However Macedonia does not seem to be the big fish in this Kafkaesque story and is only the sidekick of greater powers. When will they be held accountable for their actions?