An independent, international panel of eminent judges and lawyers recently published a comprehensive report on the damage caused by the “war on terror” since 2001.1 Their findings are alarming and call for corrective action.
The panel, established by the International Commission of Jurists (ICJ) and chaired by Arthur Chaskalson, former Chief Justice of South Africa, held sixteen hearings covering more than forty countries in all regions of the world.
The report describes counter-terrorism practices such as torture, disappearances, arbitrary and secret detention, unfair trials, and persistent impunity for gross human rights violations. Many governments have allowed themselves to be rushed into hasty responses to terrorism that have undermined basic values and violated human rights. The result is a serious threat to the integrity of the international human rights legal framework.
When the report was released, former UN High Commissioner for Human Rights and one of the panelists, Mary Robinson, said that all states must now restore their commitment to human rights. If we fail to act now, she emphasised, the damage to international law risks becoming permanent.
Some European security agencies co-operated closely with the CIA in the rendition programme. Suspects were brought to Guantánamo Bay and other locations where they were interrogated using unlawful methods.
In some cases European intelligence services literally handed over prisoners to CIA agents, as the Swedish authorities did in the case of Ahmed Agiza and Mohammed El Zary. In others, they provided information with the same result, or looked the other way when foreign colleagues operated on their territory. PACE Rapporteur Senator Dick Marty reported that the CIA flights would not have been possible without such co-operation.2
There have been allegations that agents of European security services co-operated with torturers and that they themselves interrogated detainees after they had been “softened up” by local security police. Reports that British, French, German and Swedish security personnel questioned countrymen while in CIA custody makes it necessary to clarify this co-operation.
Released prisoners have also alleged that they were asked questions during unlawful interrogations – by CIA or local agents – which must have originated from the intelligence services in their home countries. Further, there are indications that information obtained through such illegal means has later been exchanged between agencies.
The full facts about this inter-agency co-operation must be established to allow for follow-up action to be taken. It is disappointing that some European governments have been slow to recognise this need.
One argument is that such investigations would disturb the “special relationship” with the United States. This point was made recently in the trial of Binyam Mohamed, who is reported to have been tortured in Pakistan and Morocco before being transferred to Afghanistan and later to Guantánamo Bay. Questions have been raised about the role of the British intelligence in that case. The Foreign Minister argued that information about Binyam Mohamed’s treatment could not be made available even when requested by a court, because of the risk of negative reactions in Washington.
It is understandable that the European security services are keen to have good working relations with the CIA; exchange of intelligence information is essential for effective security operations. However, this dependency is now being used to cover up facts about human rights violations – and that is unacceptable.
This problem must be discussed further. Sound intelligence is certainly needed in order to prevent terrorist acts and the gathering of such intelligence data does require a degree of confidentiality. Information about intelligence gathering methods can undermine essential security efforts.
The Eminent Jurists Panel respected these arguments, but warned that secrecy may also be used to prevent proper accountability when legitimate security interests are not at stake. The experts reported that they came across many examples of such misuse and stressed the importance of appropriate safeguards.
A distinction must also be made between genuine reasons to keep certain information confidential and arguments about preserving friendly international relations. Following the political changes in Washington it should now be possible to have a constructive discussion on how to ensure that inter-agency co-operation does not result in human rights violations.
This requires a determined position on cleaning up the immediate past.
The Canadian government initiated a thorough investigation in the case of Maher Arar, a Canadian citizen who was arrested in an airport in the US and then transported to Syria where he was subjected to torture and cruel, inhuman and degrading treatment. This inquiry should serve as a good example for European governments.
The time has come for commissions to establish the facts. Secrecy can be protected if and where necessary, but in a democracy no-one should be above the law.
Establishing the facts is important in itself, but it is also necessary to prepare sound policy in this area. Intelligence agencies have acquired new powers and resources during these past years, but these have not been matched by political and legal accountability.3 The work of intelligence agencies, including their international co-operation, must be regulated in line with human rights standards.
Thomas Hammarberg
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Notes:
1. “Assessing Damage, Urging Action”, February 2009. International Commission of Jurists. www.icj.org.
2. “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report”, 11 June 2007.
3. See also: a) Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while fighting terrorism regarding the role of intelligence agencies in the fight against terrorism, 4 February 2009; b) Proposals made by the Secretary General, 30 June 2007, SG(2006)01; and c) Council of Europe’s Venice Commission, Opinion no 363/2005, Strasbourg 17 March 2006.