The fact that democratic states have used illegal methods might well be what terrorist leaders hoped for. It has seriously harmed the credibility of the international system for human rights protection. It is a fundamental principle that respect for human rights, basic freedoms and the rule or law be upheld also in times of tension and crisis – and by everyone.
The first step to restore the primacy of these values is to recognize the facts. European decision makers would do well to take note of the debate in the United States which is now, at long last, both frank and self-critical. The New York Times, among others, has repeatedly articulated deep human rights concerns. In an editorial in mid-January it summarized the main points:
“In the years since Sept. 11, we have seen American soldiers abuse, sexually humiliate, torment and murder prisoners in Afghanistan and Iraq. A few have been punished, but their leaders have never been called to account. We have seen mercenaries gun down Iraqi civilians with no fear of prosecution…”.
“Hundreds of men, swept up on the battlefields of Afghanistan and Iraq, were thrown into prison in Guantanamo Bay, Cuba, so that the White House could claim they were beyond the reach of U.S. laws. Prisoners are held there with no hope of real justice, only the chance to face a kangaroo court where evidence and the names of their accusers are kept secret, and where they are not permitted to talk about the abuse they have suffered at the hands of American jailers.”
“In other foreign lands, the CIA set up secret jails where “high-value detainees” were subject to even more barbaric acts, including simulated drowning. These crimes were videotaped, so that “experts” could watch them, and then the videotapes were destroyed, after consultation with the White House, in the hope that Americans would never know.”
“The CIA contracted out its inhumanity to nations with no respect for life or law, sending prisoners - some of the innocents kidnapped on street corners and in airports – to be tortured into making false confessions, or until it was clear they had nothing to say and so were let go without any apology or hope of redress.”
This editorial reveals flagrant defiance of core principles of justice on which human rights are built: protection against torture; presumption of innocence; no deprivation of liberty without due process; the right to a fair trial; the right of appeal; and the right to reparation.
European citizens are also among the victims. Some have been brought to Guantanamo for indefinite detention and interrogation in violation of the United Nations Convention against Torture. Others have been “blacklisted” by the Security Council on suggestion of the US. They have had their bank accounts frozen and been prevented from any travel – without legal procedures and any possibility to appeal.(1)
European governments have not defended their citizens in these situations with sufficient vigour. They have been late in clearly condemning these methods of counter-terrorism. They have yet to fully clarify the facts about European cooperation with the US intelligence services in this counter-terrorism policy.
Senator Dick Marty in the Council of Europe Parliamentary Assembly managed in his investigation to uncover cooperation of European countries in the “spider’s web” of detainee transports to Guantanamo as well as to secret prisons.
This needs to be discussed in depth. Tendencies to see the protection of human rights as an obstacle to effective work against terrorism must be discarded. As Kofi Annan once said, respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism. It is of utmost importance to uphold human rights standards in times of crisis – that is when the strength of our values is tested.
Attempts to redefine the very meaning of torture must not be accepted. Simulated drowning (“water boarding”) remains torture, also when used against terrorist suspects. Sending back people to situations where they risk torture is unacceptable – so-called diplomatic assurances from regimes that practice torture cannot be used as a pretext to circumvent the ban on such deportations.
Independent and effective national investigations should be set up whenever there are credible allegations of unlawful renditions or secret detentions. States are required to investigate human rights violations under the European Convention on Human Rights.
One such case is the Swedish handover to CIA agents of two asylum-seeking Egyptians, Ahmed Agiza and Mohammed al-Zari, at an airport in Stockholm from where they were flown to security cells in Cairo and subjected to “harsh” interrogation. The handling of this case has been severely criticized by the United Nations Committee Against Torture. Although the Swedish government has admitted mistakes it has not yet agreed to a full investigation into all circumstances of the case.
One argument against such investigations has been the fear of damaging relations with US intelligence services. Exchange of secret information between the security agencies is essential for each of them. However, the Canadian authorities demonstrated in the case of Maher Arar – a Canadian citizen who was stopped at a US airport and handed over to the Syrian security police and badly tortured – that a thorough and fair investigation is possible without endangering the intelligence nerve system.
This is also about a crucial principle. Democracies should never accept the use of secrecy doctrines to excuse lack of action against serious human rights violations. It should be absolutely clear that security agents must also be held accountable – parliamentary and judicial scrutiny must be possible. One of the lessons of the mistakes made during the “war on terror” is that the national security agencies must be kept under effective democratic control.
This was indeed one of the recommendations resulting from inquiries conducted by the Parliamentary Assembly of the Council of Europe, the Council of Europe Venice Commission and the Temporary Committee of the European Parliament. The Secretary General of the Council of Europe suggested measures to oversee the activities of national and foreign security agencies and also to prevent illegal air transports of detainees.
Three problems in particular were addressed in these recommendations:
• Activities of national and foreign civilian and military intelligence services operating in European countries should be regulated;
• Transiting civil and State aircraft should be controlled so that illegal transport of detainees is prevented; and
• Measures should be taken to ensure that secrecy doctrines and state immunity do not become a shield against investigating serious violations of human rights.
The full truth about European cooperation with the secret detention and unlawful rendition programmes must be exposed, the breaches of the European Convention of Human Rights addressed, the victims granted reparation and decisions taken to ensure that these violations will not be repeated.
European governments must act on these recommendations. A head-in-the-sand attitude cannot be defended. These issues must be fully addressed, and the time is now.
Thomas Hammarberg
Note
1. See PACE Resolution 1597 (2008) and Recommendation 1824 (2008), based on PACE document 11454