Eu Report on Secret Cia Prisons in Europe, 2006
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restricted AS/Jur (2006) 16 Part II 7 June 2006 ajdoc16 2006 Part II Committee on Legal Affairs and Human Rights Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states Draft report – Part II (Explanatory memorandum) Rapporteur: Mr Dick Marty, Switzerland, ALDE C. Explanatory memorandum by Mr Dick Marty, Rapporteur Table of Contents: 1. Are human rights little more than a fairweather option? ……………………………………. 1.1. 11 September 2001 ……………………………………………………………………… 1.2. Guantanamo Bay ………………………………………………………………………… 1.3. Secret CIA prisons in Europe?…………………………………………………………. 1.4. The Council of Europe’s response ……………………………………………………. 1.5. European Parliament ………………………………………………………………….. 1.6. Rapporteur or investigator? …………………………………………………………… 1.7. Is this an Anti-American exercise? ……………………………………………………. 1.8 Is there any evidence?............................................................................................ 2. The global “spider’s web”………………………………………………………………………. 2.1. The evolution of the rendition programme ……………………………………………. 2.2. Components of the spider’s web ………………………………………………………. 2.3. Compiling a database of aircraft movements ………………………………………… 2.4. Operations of the spider’s web ………………………………………………………… 2.5. Successive rendition operations and secret detentions …………………………….. 2.6. Detention facilities in Romania and Poland ……………………….. 2.6.1 The case of Romania …………………………………………………. 2.6.2. The case of Poland ……………………………………………………. 2.7. The human impact of rendition and secret detention ……………………………….. 2.7.1. CIA methodology – how a detainee is treated during a rendition ………… 2.7.2. The effects of rendition and secret detention on individuals ………………. and families ……………………………………………………………………… ________________________ !"# $ !"# # % & & ' ( ' ) *( ' 3 3 4 4 5 6 6 7 8 9 9 12 14 15 16 16 16 17 19 20 23 AS/Jur (2006) 16 Part II 2 3. Individual case studies ………………………………………………………….…………..….. 3.1. Khaled El-Masri ...………………………………………………………………………… 3.1.1. The individual account of Khaled El-Masri …………………………………….. 3.1.2. Elements of corroboration for Mr. El-Masri’s account …………………..…… 3.1.3. The role of "the former Yugoslav Republic of Macedonia" ………………… 22.214.171.124. The ‘official line’ of the authorities ………………………………….. 126.96.36.199. Further elements ………………………..………………………….… 3.2. "The Algerian Six" ………………………………………………………………………… 3.3. Ahmed Agiza and Mohammed Alzery (El Zari) ……………………………………….. 3.4. Abu Omar …………………………………………………………………………………. 3.5. Bisher Al-Rawi and Jamil El-Banna …………………………………………………… 3.6. Maher Arar ……………………………………………………………………………….. 3.7. Messrs Bashmila and Ali Qaru …………………………………………………………… 3.8. Mohammed Zammar ……………………………………………………………………. 3.9. Binyam Mohamed al Habashi ………………………………………………………….. 4. Secret places of detention …………………………………………………………………….. 4.1. Satellite photographs ……………………………………………………………………. 4.2. Documented aircraft movements ………………………………………………………. 4.3. Witness accounts …………………………………………………………………….. 4.4. Evaluation ………………………………………………………………………………… 5. Secret detentions in the Chechen Republic ……………………. 49 5.1. The work of the European Committee for the Prevention of Torture (CPT) ………. 5.2. Damning recent accounts by witnesses ………………………………………………. 6. The attitude of governments ………………………………………………………………….. 7. Individual cases: judicial proceedings in progress …………………………………………… 7.1. A positive example: the Milan public prosecutor' s office (Abu Omar case) ……….. 7.2. A matter requiring further attention: the Munich (El-Masri case) and Zweibrücken (Abu Omar case) public prosecutors'offices ………….……………….. 7.3. Another matter requiring further attention: the Al Rawi and El Banna case ……….. 7.4. Sweden: what next in the Agiza and Alzery case? ……………………………………. 7.5. Spain ……………………………………………………………………………………….. 7.6. Mr El-Masri’s complaint in the United States ………………………………………….. 8. Parliamentary investigations ……………………………………………………………………. 8.1. Germany …………………………………………………………………………………… 8.2 The United Kingdom ……………………………………………………………………… 8.3. Poland: a parliamentary inquiry, carried out in secret ………………………………… 8.4. Romania and "the former Yugoslav Republic of Macedonia": no parliamentary inquiries ……………………………………………………………………………………… 9. Commitment to combating terrorism …………………………………………………………… 9.1. Fight against terrorism: an absolute necessity ………………………………………… 9.2. The strength of unity and of the law …………………………………………………….. 10. Legal perspectives ……………………………………………………………………………….. 10.1. The United States’ legal position ………………………………………………….. 10.2. The point of view of the Council of Europe …………………………………………….. 10.2.1. The European Commission for Democracy through Law (Venice Commission) …………………………………………………………. 10.2.2 The Secretary General of the Council of Europe (Article 52 ECHR) …….. 11. Conclusion …………………………………………………………………………………………. 24 24 24 25 26 26 29 33 36 38 39 41 43 43 44 47 47 48 48 48 49 49 50 53 53 53 53 53 54 54 54 54 55 55 56 56 56 57 59 59 61 61 64 65 3 1. Are human rights little more than a fairweather option? 1.1. 11 September 2001 AS/Jur (2006) 16 Part II 1. The tragedies that took place on 11 September undoubtedly marked the beginning of an important new chapter in the terrible, never-ending history of terrorism. It is a history of indiscriminate violence, instigated in order to create a climate of insecurity and fear with the intention of attacking the existing political and social system. For the first time, spectacular and extremely lethal acts struck highly symbolic targets at the very heart of the United States of America, the most powerful state in the world. Europe, for its part, already has a long and painful experience of terrorism, involving 1 numerous victims and large-scale attacks, particularly in Italy , Germany, Spain, the United Kingdom, France and, more recently, Russia. 2. While the states of the Old World have dealt with these threats primarily by means of existing 2 institutions and legal systems , the United States appears to have made a fundamentally different choice: considering that neither conventional judicial instruments nor those established under the framework of the laws of war could effectively counter the new forms of international terrorism, it decided to develop new legal concepts. The latter are based primarily on the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism signed by 3 President Bush on 13 November 2001 . It is significant that, to date, only one person has been summoned before the courts to answer for the 11 September attacks: a person, moreover, who was 4 already in prison on that day, and had been in the hands of the justice system for several months . By contrast, hundreds of other people are still deprived of their liberty, under American authority but outside the national territory, within an unclear normative framework. Their detention is, in any event, altogether contrary to the principles enshrined in all the international legal instruments dealing with respect for fundamental rights, including the domestic law of the United States (which explains the existence of such detention centres outside the country). The following headline appears to be an accurate summary of the current administration’s approach: No Trials for Key Players: Government 5 prefers to interrogate bigger fish in terrorism cases rather than charge them . 3. This legal approach is utterly alien to the European tradition and sensibility, and is clearly contrary to the European Convention on Human Rights and the Universal Declaration of Human Rights. Cicero’s old adage, inter arma silent leges, appears to have left its mark even on international bodies supposed to ensure the rule of law and the fair administration of justice. It is frankly alarming to see the UN Security Council sacrificing essential principles pertaining to fundamental rights in the name of the fight against terrorism. The compilation of so-called “black lists” of individuals and companies suspected of maintaining connections with organisations considered terrorist and the application of the associated sanctions clearly breach every principle of the fundamental right to a fair trial: no specific charges, no right to be heard, no right of appeal, no established procedure for 6 removing one’s name from the list . 1 More than 14 500 politically motivated acts of violence were recorded in Italy between 1969 and 1987, causing 419 deaths and 1181 casualties (Interior Ministry figures). 2 We may recall the words of the former President of Italy, Sandro Pertin (albeit translated in paraphrased form): “Italy can proudly say that it has defeated terrorism in the law courts, rather than resorting to “stadium” justice”. 3 Regarding the various decisions taken by the American administration following the 11 September attacks, I refer readers to the excellent report by Kevin McNamara, Lawfulness of Detentions by the United States in Guantanamo Bay, accompanying the resolution and recommendation adopted by the PACE on 26 April 2005. 4 The person in question is Zacarias Moussaoui, a French citizen of Moroccan descent, sentenced to life imprisonment by a Virginia grand jury on 3 May 2006; the jurors did not impose the death penalty sought by the federal prosecutors (thereby avoiding the trap set by the defendant, who clearly wished to be sentenced to death so as to appear a martyr). According to an American government document, now declassified, six important AlQaeda members directly involved in the organisation and funding of the 11 September attacks have apparently been captured by the United States. Although more heavily involved than Moussaoui, they have not been summoned before the American courts to answer for their actions (see also Le Monde of 22 April 2006). 5 Los Angeles Times of 4 May 2006. 6 A motion raising the issue of the UN black lists (Doc 10856) has been referred to the PACE Committee on Legal Affairs and Human Rights, which is to submit a report on the subject in the near future. AS/Jur (2006) 16 Part II 1.2. 4 Guantanamo Bay 4. At Guantanamo Bay, on the island of Cuba, several hundred people are being detained without enjoying any of the guarantees provided for in the criminal procedure of a state governed by the rule of law or in the Geneva Conventions on the law of war. These people have been arrested in unknown circumstances, handed over by foreign authorities without any extradition procedure being followed, or illegally abducted in various countries by United States special services. They are considered enemy combatants, according to a new definition introduced by the American 7 administration . 5. The Parliamentary Assembly of the Council of Europe (PACE) has strongly criticised this state of affairs: on 26 April 2005, with no votes against and just five abstentions, it adopted a resolution (1433/2005) and recommendation (1699/2005) in which it urges the United States Government to put a stop to this situation and to ensure respect for the principles of the rule of law and human rights. It also concludes that the United States has engaged in the unlawful practice of secret detention. In its reply of 17 June 2005 (doc. 10585), the Committee of Ministers expresses its full support to all such efforts and to all efforts to obtain a prompt release or fair trial of persons detained at Guantánamo Bay by an independent and impartial court. It urges the United States Government to ensure that the rights of all detainees are ensured and that the principle of the rule of law is fully respected. For its own part, it expresses the determination of the member states to ensure that the rights of persons released and returned to their jurisdiction are fully respected. The Committee of Ministers has conveyed a message 8 in these terms to the Government of the United States of America . To our knowledge, no reply has been received to date. 6. The UN Committee against Torture has also called for the closure of the Guantanamo Bay 9 detention facility in recent times, criticising its secret character and the denial of access to the ICRC . 1.3. Secret CIA prisons in Europe? 7. This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), the Washington Post and the ABC television channel. Whereas the Washington Post did not name specific countries hosting, or having allegedly hosted, such detention centres, simply referring generically to ‘eastern European democracies’, HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following the Washington Post’s revelations. According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called ‘enhanced interrogation techniques’) before being transferred to CIA facilities in North Africa. 7 Following an injunction by an American court, based on the provisions of press law, in April 2006 the Pentagon published, for the first time, a list of the names and nationalities of 558 people detained at Guantanamo. However, no details are given for some 140 people previously detained but no longer imprisoned at Guantanamo on that date. Furthermore, no outside body can confirm whether this list is actually comprehensive. 8 The United States has enjoyed observer status with the Committee of Ministers since 10 January 1996. 9 See Press Release of the United Nations Office at Geneva, CAT Concludes Thirty-Sixth Session, 19 May 2006: “The Committee was concerned by allegations that the State party had established secret detention facilities, which were not accessible to the International Committee of the Red Cross. The Committee recommended that the United States cease to detain any person at Guantánamo Bay and that it close that detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they were not returned to any State where they could face a real risk of being tortured”; available at: http://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/5FBB9C351B9E70EBC1257173004EB 4CE?OpenDocument. 5 AS/Jur (2006) 16 Part II 8. It is interesting to recall that this ABC report, confirming the use of secret detention camps in Poland and Romania by the CIA, was available on the Internet for only a very short time before being withdrawn following the intervention of lawyers on behalf of the network’s owners. The Washington Post subsequently admitted that it had been in possession of the names of the countries, but had refrained from naming them further to an agreement entered into with the authorities. It is thus established that considerable pressure was brought to bear to ensure that these countries were not named. It is unclear what arguments prevailed on the media outlets in question to convince them to comply. What is certain is that these are troubling developments that throw into question the principles of freedom and independence of the press. In this light, it is worth noting that just before the publication of the original revelations by the reporter Dana Priest in early November 2005, the Executive Editor of the Washington Post was invited for an audience at the White House with 10 President Bush . 1.4. The Council of Europe’s response 9. The Council of Europe responded straight away. The President of the PACE immediately took a very firm position, and asked the Committee on Legal Affairs and Human Rights to look into the matter without delay. The latter did so at its meeting of 7 November 2005. The Secretary General of the Council, for his part, set in motion the procedure established by Article 52 of the ECHR. The Committee on Legal Affairs and Human Rights also requested the Venice Commission to prepare an opinion on the international legal obligations and duties of Council of Europe member states in respect of secret detention facilities and inter-state transport of prisoners. Cooperation was likewise established with the Council of Europe' s Human Rights Commissioner. 10. The European Union Commission, via its Vice-President Franco Frattini, expressed its full support for the Council of Europe. The EU Commission’s support proved invaluable in obtaining the necessary information from Eurocontrol and the European Union Satellite Centre. The reference to named European countries suddenly aroused huge media interest. Yet these incidents – secret detentions and renditions – had already been attracting condemnation for some time, both from the PACE itself, inter alia through the aforementioned resolution and recommendation concerning Guantanamo Bay, the re-reading of which I cannot recommend highly enough, and in extremely detailed reports by NGOs, university professors and journalists known for their very painstaking 11 work . These revelations had met with curious indifference from both the media and governments and political circles in general. 10 This meeting, along with several similar instances, was reported in a column in the Washington Post at the end of 2005. Leonard Downie, the Executive Editor of the Washington Post said: “We met with them on more than one occasion… The meetings were off the record for the purpose of discussing national security issues in [Dana Priest’s] story”. See Howard Kurtz, “Bush Presses Editors on Security”, The Washington Post, 26 December 2005; available at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/25/AR2005122500665_pf.html 11 These include the Human Rights Watch Breifing Paper of October 2004 entitled The United States’ ‘Disappeared’: The CIA’s Long-Term Ghost Detainees; and the Amnesty International report AMR 51/051/2006 of 5 April 2006, entitled Below the radar: secret flights to torture and ‘disappearance’, as well as numerous articles describing in detail the new techniques for fighting terrorism, such as extraordinary renditions; for instance, the articles in the Corriere della Sera by Paolo Biondani and Guido Olimpio, which the latter has compiled and edited in a well-researched book (Operazione Hotel California, Feltrinelli, 2005), along with articles by Stephen Grey (America’s Gulag, The New Statesman, 17 May 2004; US Accused of Torture Flights, The Sunday Times, 14 November 2004; Les Etats-Unis inventent la délocalisation de la torture, Le Monde Diplomatique, April 2005); Alfred McCoy (Cruel Science: CIA Torture and U.S. Foreign Policy, New England Journal of Public Policy, Boston, 2004, an article subsequently expanded and published in book form, and also published in German under the title Foltern und foltern lassen, Zweitauseneins, 2005; Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”, report published in 2004 by the Committee on International Human Rights of the Association of the Bar of the City of New York and the Center for Human Rights and Global Justice, New York University School of Law, the conclusions of which could not be clearer: Extraordinary Rendition is an illegal practice under both domestic and international law, and that, consistent with U.S. policy against torture, the U.S. government is duty bound to cease all acts of Extraordinary Rendition, to investigate Extraordinary Renditions that have already taken place, and to prosecute and punish those found to have engaged in acts that amount to crimes in connection with Extraordinary Rendition. AS/Jur (2006) 16 Part II 1.5. 6 European Parliament 11. Members of the European Parliament also became alarmed at the mounting evidence that European countries, or at least facilities located on European territory, had been the scene of systematic human rights violations. In early 2006, a 46-member Temporary Committee was set up and instructed to investigate the alleged existence of CIA prisons in Europe in which terrorist suspects had 12 allegedly been detained and tortured . 12. I welcomed this initiative in my previous memorandum, considering it wholly consistent with the Council of Europe’s desire to ascertain the truth. Co-operation with the Temporary Committee has been extremely satisfactory, both at the level of our respective secretariats and with its Chairman, Carlos Miguel Coelho, and rapporteur, Claudio Fava. I had the opportunity to address members of the European Parliament’s committee during one of its first public hearings. 13. On 24 April 2006 the Temporary Committee presented its draft interim report, which confirmed strong indications of illegal actions carried out by the CIA in Europe. Its in initial analysis, the report largely supported the observations we made in our own Information Memorandum II on 24 January 2006. The TDIP rapporteur Claudio Fava, in presenting his interim report, spoke of “more than a thousand flights chartered by the CIA [that] have transited through Europe, often in order to carry out 13 extraordinary renditions” . In a press conference, Mr Fava clarified that, according to information given to him in confidence by an intelligence source, “30 to 50 people have been rendered by the CIA in Europe” and that “the CIA could not have carried out such renditions without the agreement of 14 15 European states” . The Temporary Committee proposes to continue its work . 1.6. Rapporteur or investigator? 14. I have often been described as an investigator, or even a special investigator. It might be helpful to point out, therefore, that I do not enjoy any specific investigatory powers and, in particular, am not entitled to use coercive methods or to require the release of specific documents. My work has consequently consisted primarily of interviews and analysis. I submitted a set of questions to governments via their national parliamentary delegations, and asked the latter to take the debate to the national level. Parliamentary questions were thereby tabled in many states with a view to obtaining information from the various governments. Special parliamentary commissions of inquiry were set up in some countries. The work undertaken by a number of NGOs has proved invaluable and even, in many cases, more detailed and reliable than the information supplied by governments. A significant contribution was also made by many journalists investigating on the ground, often for months on end. I also received information entrusted to me only on the assurance that I would keep it confidential and protect my sources. The information thus received clearly cannot be presented as evidence; it did, however, point my research in certain more specific directions, and enables me to state with certainty that the search for the truth about what really happened to terrorist suspects in Europe will not end with the present report. 15. I received considerable assistance in this task from the head of the secretariat of the Committee on Legal Affairs and Human Rights and one of his colleagues – both of whom were already very busy with other tasks connected with the committee’s operation and work with other rapporteurs – as well as from another young colleague who, in the end, was temporarily assigned specifically to this investigation (and whose help proved invaluable). I am extremely grateful to them for their outstanding competence and exceptional readiness to assist. 12 Temporary Committee on the Alleged Use of European Countries by the CIA for the Transport and Illegal Detention of Prisoners (TDIP; http://www.europarl.eu.int/comparl/tempcom/tdip/default_en.htm). 13 See Le Monde, 27 April 2006. 14 See Le Monde, 18 May 2006. 15 The draft resolution of the European Parliament, produced as an annex to the interim report, can be consulted at: http://www.europarl.europa.eu/comparl/tempcom/tdip/interim_report_en.pdf. 7 AS/Jur (2006) 16 Part II 16. I was formally designated as Rapporteur on 13 December 2005. Within the Council of Europe it was considered that the report should be presented as quickly as possible. Taking into account the breadth and complexity of the subject, as well as the extremely modest means put at my disposal, I have certainly not been able to present a complete overview of the different aspects of what has really occurred. Moreover, we are still far from knowing all the details of “extraordinary renditions” and the conditions in which abducted persons have been detained and interrogated in Europe. It is thus highly likely that the Council of Europe should remain seized with this subject matter. Elements presently in the public domain - which are supplemented with new information as every week goes by - not only justify, but require that member States finally decide to open serious inquiries on the extent to which they were directly or indirectly implicated in such activities. 17. As I stated in my previous memorandum, serious consideration must be given to whether the Assembly should equip itself with other resources for dealing with such complex matters. Where investigations relate to possible human rights violations that are not confined to individual cases (for which the European Court of Human Rights has jurisdiction) and transcend borders, thereby sidestepping national procedures, one is justified in questioning the effectiveness of existing instruments. Instead of appointing a single member as rapporteur with the support of the normal resources of the Committee’s secretariat, which is already overwhelmed by other reports in preparation, we might seriously consider whether setting up a proper commission of inquiry, assisted by experts and enjoying genuine investigatory powers, might not be a better solution for dealing with these new and important challenges. 18. We have tackled this problem with determination and a constant concern for objectivity, mindful of both the enormity of the task entrusted to me and the frankly derisory resources available and the risk of being manipulated. My aim was by no means to amass evidence for the purpose of condemning or stigmatising. On the contrary, I was guided by a desire to ascertain the truth in order to reaffirm the values the Council of Europe has always striven to uphold, and to guard against the repetition of such incidents. 1.7. Is this an Anti-American exercise? 19. I consider this reproach, made fairly frequently when criticisms are voiced about violations of fundamental rights committed in the context of the fight against terrorism, downright ridiculous and wholly inaccurate. It overlooks the fact that the initial criticisms, relating to the establishment of the detention centre at Guantanamo Bay as well as the use of extraordinary renditions and torture, were first forcefully expressed by American journalists, NGOs and politicians, often thanks to detailed information released by sources within the administration, and indeed the intelligence services themselves. The debate has been, and in my view still is, considerably more heated in the United States than in Europe, at least in certain circles and media. 20. Moreover, the United States Supreme Court itself pointed out, in an extraordinary June 2004 judgment, that at stake in this case is nothing less than the essence of a free society. (…) For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even 16 to resist an assault by the forces of tyranny . This is a sharp reminder of the great democratic tradition of the United States and its exemplary commitment to human rights. The United States is, and remains, a deeply democratic country. Indeed, criticisms of some of the current administration’s decisions also reflect a concern that a country which unquestionably serves as an example to the rest of the world is committing what we consider to be mistakes that not only violate fundamental principles, but also constitute a counterproductive anti-terrorism strategy. 16 These are the words of Judge Sandra Day O’Connor in the case of José Padilla, judgement of the United States Supreme Court, 28 June 2004. AS/Jur (2006) 16 Part II 1.8. 8 Is there any evidence? 21. It is paradoxical to expect bodies without any real investigatory powers – the Council of Europe and the European Parliament – to adduce evidence in the legal sense. Indeed, these European bodies have been prompted to undertake such investigations owing to a lack of willingness and commitment on the part of national institutions that could, and should, have completely clarified these allegations which from the outset did not appear to be totally unfounded. 22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states. 23. In the light of the silence and obvious reluctance on the part of the bodies that could have provided the necessary information, it is legitimate to assume that there are more such cases than can be proven at present. In effect, the facts as would appear to be established today – and as will be illustrated throughout the report – as well as the total absence of serious inquiries by the national authorities concerned, implies, in my view, the reversal of the burden of proof: in such a situation it is incumbent on the Polish and Romanian authorities to conduct an independent and in-depth inquiry 17 and to make public not only its results but also the method and the different stages of the enquiry . Even if proof, in the classical meaning of the term, is not as yet available, a number of coherent and converging elements indicate that such secret detention centres did indeed exist in Europe. Such an affirmation does not pretend to be a judgment of a criminal court, necessitating “proof beyond reasonable doubt” in the Anglo-Saxon meaning of the term; it rather reflects a conviction based on a careful balance of probabilities, as well as logical deductions from clearly established facts. The intention is not to determine that the authorities of these countries are “guilty” for having tolerated secret detention sites, but rather to hold them "responsible" for failing to comply with the positive obligation to investigate serious allegations. 17 Reversal of the burden of proof if the authorities concerned do not discharge their positive duty to investigate is not a new idea: Article 39 of the Rules of Procedure of the Inter-American Commission of Human Rights provides that "The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the maximum period set by the Commission under the provisions of Article 38 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion". At the Council of Europe, this idea was applied in the Independent Experts'report to the Secretary General (by Mr Alkema and Mr Trechsel) on political prisoners in Azerbaijan (doc. SG/Inf (2001) 34 Addendum I), in which it was stated that the cases concerned had been submitted to the authorities for comments and observations and that, in the absence of substantive observations by the authorities, the experts had had to base their findings on plausible allegations from other sources (idem, p. 20). 9 2. The global “spider’s web” AS/Jur (2006) 16 Part II 18 24. The system of targeting, apprehending and detaining terrorist suspects, which forms the focus of this report, is not an overnight creation. Nor has it been built up from scratch in the wake of the terrorist attacks of 11 September 2001. 25. I have chosen to adopt the metaphor of a global “spider’s web” as the leitmotif for my report. It is a web that has been spun out incrementally over several years, using tactics and techniques that have had to be developed in response to new theatres of war, new terms of engagement and an unpredictable threat. 26. The chief architect of the web, the United States of America, has long possessed the capacity to capture individual targets abroad and carry them to different parts of the world. Through its Central Intelligence Agency (CIA), the United States designed a programme known as “rendition” for this purpose in the mid-1990s. The CIA aimed to take terrorist suspects in foreign countries “off the streets” by transporting them back to other countries, usually their home countries, where they were wanted for trial, or for detention without any form of due process. 2.1. The evolution of the rendition programme 27. During a recent mission to the United States, a member of my team came into contact with several “insider sources” in the US intelligence community. The most prominent such witness was Mr Michael Scheuer, who designed the original rendition programme in the 1990s under the Clinton 19 Administration and remained employed by the CIA until November 2004 . Excerpts of Mr Scheuer’s testimony are reflected verbatim in this report and, to the extent possible, have been substantiated or 20 corroborated by a range of other source material in the account below . 28. The strategic target of the CIA rendition programme has always been, and remains, the global terrorist network known as Al-Qaeda. In the conception of the United States, Al-Qaeda exists as a nebulous collection of ‘cells’ in countries around the world, comprising ‘operatives’ who perform various roles in the preparation of terrorist attacks. When the US National Security Council became alarmed, in 1995, at what appeared to be a serious prospect of Osama bin Laden acquiring weapons of mass destruction, it developed rendition, according to Scheuer and others, as a way of “breaking down Al-Qaeda”, “taking down cells” and “incarcerating senior Al-Qaeda people”. 18 This section should be read in conjunction with the graphic map annexed to this explanatory memorandum, entitled: The global “spider’s web” of secret detentions and unlawful inter-state transfers 19 Mr Michael Scheuer was Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center for four years, from August 1995 to June 1999. He then served for a further three years, from September 2001 to November 2004, as Special Advisor to the Chief of the Bin Laden Unit. He is recognised as one of the most important authorities on the evolution of rendition. Mr Scheuer graciously granted my representative a three-hour personal interview in Washington, DC in May 2006. Unlike many intelligence sources with whom my team spoke, he agreed to go “on the record”, talking extensively about his first-hand operational experience of the rendition programme. A transcript of the interview is on file with the Rapporteur. Excerpts are cited in this report as follows: “Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center”. 20 I also wish to recognise the valuable work of various non-governmental organisations and academic institutions in researching the evolution of rendition and to thank them for meeting with my team to relay their insights firsthand. In particular, the following groups have produced papers that I have consulted extensively: The Center for Human Rights and Global Justice at New York University School of Law, Human Rights First, Amnesty International, Human Rights Watch and Cage Prisoners. AS/Jur (2006) 16 Part II 10 29. Rendition was designed, at the outset of the programme at least, to fit within the United States’ 21 interpretation of its legal obligations . The prerequisites for launching a rendition operation in the pre-9/11 period included: • an “outstanding legal process” against the suspect, usually connected to terrorist offences in his country of origin; • a CIA “dossier”, or profile of the suspect, based on prior intelligence and in principle reviewed by lawyers; • a “country willing to help” in the apprehension of the suspect on its territory; and • “somewhere to take him after he was arrested”. 30. The receiving countries were, as a matter of policy, only asked to provide diplomatic assurances to the United States that they would “treat the suspects according to their own national laws”. After the transfer, the United States made no effort to assess the manner in which the detainees 22 were subsequently treated . 31. Intelligence gathering, according to Scheuer, was not considered to be a priority in the pre9/11 programme: “It was never intended to talk to any of these people. Success, at least as the Agency defined it, was to get someone, who was a danger to us or our allies, ‘off the street’ and, when we got him, to grab whatever documents he had with him. We knew that once he was captured he had been trained to either fabricate or to give us a great deal of information that we would chase for months and it would lead nowhere. So interrogations were always a very minor 23 concern before 9/11.” 32. Several current Council of Europe member States are known to have co-operated closely with 24 the United States in the operation of its rendition programme under the Clinton Administration . 25 Indeed, the United Kingdom Government has indicated to the Council of Europe that a system of prior notification existed in the 1990s, whereby even intended stopovers or overflights were reported 26 by the United States in advance of each rendition operation . 33. The act of “rendition” may not per se constitute a breach of international human rights law. It is worth noting that other States have also asserted their right to apprehend a terrorist suspect on foreign territory in order to bring him to justice if the tool of international judicial assistance or cooperation did 27 not attain the desired result . 21 For further detail on the United States’ interpretation of its international legal obligations, see the section below entitled The United States’ legal position, at heading 10.1. 22 In my Information Memorandum II in January, I quoted several former CIA agents who indicate that the United States knew some of the treatment of detainees would flout minimum standards of protection in international law. Mr Scheuer simply told my representative: "I check my moral qualms at the door". 23 Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center, interview carried out by the Rapporteur’s representative, supra note 19. 24 See Jane Mayer, Outsourcing Torture: The secret history of America’s ‘extraordinary rendition’ program, in The New Yorker, 14 & 21 February 2005. Mayer refers to well-documented cases of rendition in which Croatia (1995) and Albania (1998) collaborated with the United States in apprehending suspects; at pages 109-110. Mr Scheuer gave a further example involving Germany, in which a suspect named Mahmood Salim, alias Abu Hajer, was arrested by Bavarian police. 25 See Jack Straw, Secretary of State for Foreign and Commonwealth Affairs, Written Ministerial Statement – Enquiries in respect of rendition allegations, appended to the Response of the United Kingdom Government to the Request of the Secretary-General for an explanation in accordance with Article 52 ECHR, available at: http://www.coe.int/T/E/Com/Files/Events/2006-cia/United-Kingdom.pdf. 26 Ibid. Mr Straw states: “There were four cases in 1998 where the US requested permission to render one or more detainees through the UK or Overseas Territories. In two of these cases, records show the Government granted the request, and refused two others.” 27 See US Secretary of State Condoleeza Rice, Remarks upon her departure for Europe, Andrews Air Force Base, 5 December 2005. Ms Rice refers to France’s actions in the case of “Carlos the Jackal”: “A rendition by the French government brought him to justice in France, where he is now imprisoned.” 11 AS/Jur (2006) 16 Part II 34. The most prominent legal authorities in the United States, including its Supreme Court, have 28 interpreted the object of the pre-9/11 rendition programme to be within the law . Indeed, several human rights NGOs have assessed the original practice under the rubric of “rendition to justice”, conceding that an inter-state transfer could be lawful if its object is to bring a suspect within a 29 recognised judicial process respectful of human rights . This indicator might in fact provide a legal 30 benchmark against which unlawful inter-state transfers can be measured . 35. However, there has clearly been a critical deviation away from notions of justice in the rendition programme. In the wake of the 9/11 attacks, the United States has transformed rendition into one of a range of instruments with which to pursue its so-called “war on terror”. The attacks of 9/11 genuinely signalled something of a watershed in the United States approach to overcoming the 31 terrorist threat . This new "war on terrorism" was launched by the military intervention in Afghanistan in October 2001. At the same time new importance was attached to the collection of intelligence on persons suspected of terrorism. The CIA was put under pressure to play a more proactive role in the detention and interrogation of suspects rather than just putting them "behind bars". Without appropriate preparation, a global policy of arresting and detaining "the enemies" of the United States was – still according to Scheuer – improvised hastily. It was up to the lawyers to "legitimise" these operations, whilst the CIA and the American military became the principal supervisors and operators 32 of the system . 36. Rendition operations have escalated in scale and changed in focus. The central effect of the post-9/11 rendition programme has been to place captured terrorist suspects outside the reach of any justice system and keep them there. The absence of human rights guarantees and the introduction of “enhanced interrogation techniques” have led, in several cases examined, as we shall see, to detainees being subjected to torture. 37. The reasons behind the transformation in the character of rendition are both political and operational. First, it is clear that the United States Government has set out to combat terrorism in an aggressive and urgent fashion. The executive has applied massive political pressure on all its agencies, particularly the CIA, to step up the intensity of their counter-terrorist activities. According to Scheuer, “after 9/11, we had nothing ready to go – the military had no plans, they had no response; so 33 the Agency felt the brunt of the executive branch’s desire to show the American people victories” . 28 See United States v. Alvarez-Machain, 504 U.S. 655 (1992), in which the Supreme Court upheld the jurisdiction of a US court to try a man brought to the US from Mexico by means of abduction rather than extradition. Case law on this matter dates back to the 1886 case of Ker v. Illinois, 119 U.S. 436 (1886), in which the Supreme Court said: “There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.“ 29 This concept of “rendition to justice” is discussed in greater detail in: Center for Human Rights and Global Justice, NYU School of Law, Beyond Guantanamo: Transfers to Torture One Year after Rasul v. Bush, 28 June 2005. I am also grateful to the staff of Human Rights First for their thorough explanations in meetings of the contemporary legal dilemmas faced in bringing terrorist suspects to justice. 30 For a detailed analysis of the legal parameters of inter-state transfers, see Opinion No. 363/2005 of the European Commission for Democracy through Law (Venice Commission), available at: http://www.venice.coe.int/docs/2006/CDL-AD(2006)009-e.asp. See also the section below on the European legal position, at heading 10.2.1. 31 See Cofer Black, former Head of the CIA Counter-Terrorism Center, testimony before the House and Senate Intelligence Committees, Hearings on Pre-9/11 Intelligence Failures, 26 September 2002: “All you need to know is that there was a ‘before 9/11’ and an ‘after 9/11’. After 9/11, the gloves came off.” 32 General Nicolo Pollari, the Director of the Italian Intelligance and Security Services (SISMI), testified before the European Parliament’s TDIP Temporary Committee on 6 March 2003 that “the rules of the game have changed” in terms of international co-operation in the intelligence sector: “many security activities are now carried out on the borderline of legality, albeit within the legal framework”. 33 Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center, interview carried out by the Rapporteur’s representative, supra note 19. AS/Jur (2006) 16 Part II 12 38. Second, and more importantly, the key operational change has been the mandate given to the CIA to administer its own detention facilities. When it takes terrorist suspects into its custody, the CIA no longer uses rendition to transport them into the custody of countries where they are wanted. Instead, for the high-level suspects at least, rendition now leads to secret detention at the CIA’s so34 called “black sites” in unspecified locations around the world. Rather than face any form of justice, suspects become entrapped in the spider’s web. 2.2. Components of the spider’s web 39. In addition to CIA “black sites”, the spider’s web also encompasses a wider network of detention facilities run by other branches of the United States Government. Examples reported in the public domain have included the US Naval Base at Guantanamo Bay and military prisons such as Bagram in Afghanistan and Abu Ghraib in Iraq. Although the existence of such facilities is known, there are many aspects of their operation too that remain shrouded in secrecy. 40. It should also be noted that “rendition” flights by the CIA are not the only means of transporting detainees between different points on the web. Particularly in the context of transfers to Guantanamo 35 Bay, detainees have been moved extensively on military aircraft , including large cargo planes. Accordingly military flights have also fallen within the ambit of my inquiry. 41. The graphic included as an annex to this report depicts only a small portion of the global spider’s web. It consists of two main components, described overleaf. 42. First it illustrates the flights of both civilian and military aircraft, operated by the United States, which appear to be connected to secret detentions and unlawful inter-state transfers also involving Council of Europe member states. This inquiry is based on seven separate sets of data from 36 Eurocontrol , combined with specific information from about twenty national aviation authorities in 37 response to my requests. In this way, we have obtained a hitherto unique database . 34 For an impressive account of CIA “black sites”, see: Center for Human Rights and Global Justice, NYU School of Law, Fate and Whereabouts Unknown: Detainees in the “War on Terror”, 17 December 2005. The term “black sites” came into the public debate largely as a result of Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post, 2 November 2005. 35 See, inter alia, US Department of Defense documents released in response to a lawsuit under the Freedom of Information Act by Stephen H. Oleskey, Wilmer Hale LLP (copies of all disclosed documents on file with the Rapporteur). These materials shed light on the full extent to which military planes were used to transport detainees to Guantanamo Bay: in five consecutive missions in early January 2002 alone, nearly 150 detainees were transferred there (including out of European countries). 36 Eurocontrol is the European Organisation for the Safety of Air Navigation. I am grateful to Eurocontrol’s Director General, Mr. Victor Aguado, and his staff for responding to my various enquires in such an efficient and collegial manner. See the section below, at heading 2.3 37 I sent a round of letters to the Heads of National Parliamentary Delegations on 31 March 2006 in which I asked specifically for information from their respective national aviation authorities. 13 AS/Jur (2006) 16 Part II 43. Second, it distinguishes four categories of aircraft landing points, which indicate the different degrees of collusion on the part of the countries concerned. These landing points have been placed 38 into their respective categories as follows on the basis of the preponderance of evidence gathered : Category A: "Stopover points" (points at which aircraft land to refuel, mostly on the way home) Prestwick Shannon Roma Ciampino Athens Santa Maria (Azores) Bangor Prague Category B: "Staging points" (points from which operations are often launched - planes and crews prepare there, or meet in clusters) Washington Frankfurt Adana-Incirlik (Turkey) Ramstein Larnaca Palma de Mallorca Baku (Azerbaijan) Category C: "One-off pick-up points" (points from which, according to our research, one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systematic occurrence) Stockholm-Bromma Banjul Skopje Aviano Tuzla Category D: "Detainee transfer / Drop-off points" (places visited often, where flights tend to stop for just short periods, mostly far off the obvious route – either their location is close to a site of a known detention facility or a prima facie case can be made to indicate a detention facility in their vicinity) Cairo Amman Islamabad Rabat Kabul Guantanamo Bay Timisoara / Bucharest (Romania) Tashkent Algiers Baghdad Szymany (Poland) 38 In this regard we have gathered detainee testimonies, exhibits placed before judicial and parliamentary enquiries, information obtained under Freedom of Information legislation, interviews with legal representatives and insider sources, the accounts of investigative journalists and research conducted by non-governmental organisations. AS/Jur (2006) 16 Part II 2.3. 14 Compiling a database of aircraft movements 44. As we began our work in November 2005, various organisations and individuals in the non-governmental sector, especially investigative journalists and NGOs, sent us lists of aircraft suspected either of belonging to the CIA or of being operated on the CIA’s behalf by bogus “front companies”. The lists contained details such as the type of aircraft, the registered owner and operator, and the “N-number“ by which an aircraft is identified. These lists are the result of painstaking efforts to piece together information that is publicly available on certain Internet sites, observations by “planespotters” and testimony from former detainees. We subsequently received from Eurocontrol "flight plans" regarding these planes, at least in so far as the European air space is concerned, for the period between the end of 2001 and early 2005. The Eurocontrol data received in January and February 2006 include, on the one hand, the plans of flights foreseen (which can be changed even during a flight for different reasons) and, on the other hand, information that has been verified following a request for collection of route charges, and flight data obtained from aviation authorities in the United States and elsewhere. 45. The lists requested from Eurocontrol in our original correspondence were somewhat speculative, but knowingly so. It was important for the inquiry team, in conjunction with external experts and investigators familiar with the topic, to gain a sense of how CIA-related aircraft operate in relation to the thousands of other, non-CIA aircraft that use European airspace. In other words we sought to build a profile of the characteristics of CIA flights. Additionally we hoped that by casting our net widely, we may be able to identify planes never before connected to the CIA. 46. We subsequently reverted to Eurocontrol on several occasions to obtain additional flight 39 records . As our work has progressed, we have been able to narrow down the number of aircraft movements that are of interest to our work and develop our analysis into a more sophisticated, realistic measure of the extent of illegality in the CIA’s clandestine flight operations. 47. Based on our initial analysis, we sent a series of one-off additional requests to certain national air traffic control bodies in order to obtain records of the flights actually made in their countries; we also asked for data on the movements of military aircraft, which are not covered by Eurocontrol. 48. I am happy to report that through this channel I received useful information from various state institutions in different Council of Europe member States, including from transport ministries, aeronautic authorities, airport operators and state airlines. In addition, I obtained official records from national parliaments directly, including papers lodged by ministries of defence in response to 40 parliamentary questions . All of these diverse sources have contributed to the database of aircraft movements relied upon in this report. 39 Notably, in February 2006 I met with the staff of Eurocontrol for a very constructive briefing session. See, inter alia, the letter of the Rt. Hon Adam Ingram, UK Minister of State for the Armed Forces, in response to parliamentary questions in the House of Commons about the use of UK military airfields by US registered aircraft, dated 2 March 2006. 40 15 2.4. AS/Jur (2006) 16 Part II Operations of the spider’s web 49. We believe that we have made a significant step towards a better comprehension of the system of "renditions" and secret detention centres. One observation must be made. We should not lose our sense of proportion. It would be exaggerated to talk of thousands of flights, let alone hundreds of renditions concerning Europe. On this point I share the views expressed by members of the US Department of State, who recently delivered a first-hand briefing in Washington, DC at which a 41 member of my team was present . We undermine our credibility and limit the possibility for serious 42 discussion if we make allegations that are ambiguous, exaggerated or unsubstantiated . Indeed, it is evident that not all flights of CIA aircraft participate in "renditions". As Mr John Bellinger pointed out: “Intelligence flights are a manifestation of the co-operation that happens amongst us. They carry analysts to talk with one another, they carry evidence that has been collected… I’m sure 43 the Director of Intelligence himself was personally on a number of those flights.” Mr Scheuer gave another explanation as to the purposes of such flights: “There are lots of reasons other than moving prisoners to have aircrafts. It all depends on what you are doing. If you are in Afghanistan and you’re supplying weapons to a commander that is working with Karzai’s Government, then it could be a plane load of weapons. It could be food – the CIA is co-located with the US Military in bases around the country, so it could be rations. Also, we try to take care of our people as well as we can, so it’s toiletries, it’s magazines, it’s video recorders, it’s coffee makers. We even take up collections at Christmas, to make sure we can send out hundreds and hundreds of pounds of Starbucks Coffee. So out of a thousand 44 flights, I would bet that 98% of those flights are about logistics!” In fact it is precisely the remaining 2% that interests us. 50. In order to understand the notion of a "spider' s web", it is not about the overall numbers of 45 flights ; it is rather about the nature and context of individual flights. Our research has covered ten case studies of alleged unlawful inter-state transfers, involving a total of seventeen individual detainees. In most of these cases it was possible to generate flight logs from the amalgamated official flight database referred to earlier. I have then matched those logs with the times, dates and places of the alleged transfer operations – according to victims themselves, lawyer’s notes or other sources. Finally, where possible, I have corroborated this information with factual elements acquired from legal proceedings in Council of Europe member states or in the United States. 51. In translating these case studies into graphic representations, I resolved to trace each flight route not individually, but as part of a circuit. Each circuit begins and ends, where possible, at the aircraft’s “home base” (very often Dulles Airport in Washington, DC) in the United States. Following these flight circuits helps to better understand the different categories of aircraft landings – simple stopovers for refuelling, staging points that host clusters of CIA aircraft or serve to launch operations, and detainee drop-off points. Despite being a fairly simple analytical technique, it has also helped discover some significant new information, which we present in the following sections. 41 See John Bellinger, Chief Legal Advisor to the US Secretary of State, and Dan Fried, Assistant Secretary of State, Bureau of European and Eurasian Affairs; Briefing to European Delegation during the visit of the TDIP Temporary Committee of the European Parliament to Washington, DC, 11 May 2006 (transcript on file with the Rapporteur – hereinafter “Bellinger, Briefing to European Delegation” or “Fried, Briefing to European Delegation”). 42 Ibid. According to Mr Bellinger: “We have been trying, from Secretary Rice down, to engage in a real dialogue with our different partners in Europe, be it the EU, be it the Council of Europe. We know your concerns and we are interested in talking to you directly, but on the basis of fact and not mere hyperbole.” According to Mr Fried: “If the charges are absurd, it becomes difficult to deal with the real problems of the legal regime and the legal framework in which we have to conduct this struggle.” 43 Bellinger, Briefing to European Delegation, supra note 41. 44 Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center, interview conducted by the Rapporteur’s representative, supra note 19. 45 Bellinger, Briefing to European Delegation, supra note 41: “There really is not evidence of this. There is not evidence of a thousand detainees; there’s not evidence of a hundred detainees; there’s not even evidence of ten detainees.” AS/Jur (2006) 16 Part II 2.5. 16 Successive rendition operations and secret detentions 52. We believe we are in a position to state that successive CIA rendition operations have taken place in the course of the same, single flight circuit. Two of the rendition case studies examined in this report, both involving Council of Europe member States to differing degrees, belonged to the same clandestine circuit of abductions and renditions at different points of the spider’s web. The information at our disposal indicates that the renditions of Binyam Mohamed and Khaled El-Masri were carried out by the same CIA-operated aircraft, within 48 hours of one another, in the course of the same 12-day tour in January 2004. This finding appears significant for a number of reasons. First, since neither man even knows of the other – Mr Mohamed is still detained at Guantanamo Bay and Mr El-Masri has returned to his home community near Ulm in the South of Germany – their respective stories can be used to lend credence to one another. My team has received direct or indirect testimony from each of them independently. 53. As they both allege having been subjected to CIA rendition, the fact that the same aircraft operated by a CIA-linked company – carried out two transfers in such quick succession allows us to speak of the existence of a “rendition circuit” within the "spider' s web". 54. It is also possible to develop a hypothesis as to the nature of some other aircraft landings belonging to the same renditions circuit. Thus, for example, the landings which occurred directly 46 before and directly after the El-Masri rendition bear the typical characteristics of rendition operations . 55. Our analysis of the rendition programme in the post-9/11 era allows us to infer that the transfer of other detainees on this rendition circuit must have entailed detainees being transferred out of Kabul to alternative detention facilities in different countries. Thus, drawing upon official flight data, the probable existence of secret detention facilities can be inferred in Algeria and, as we will see, in Romania. 2.6. Detention facilities in Romania and Poland 2.6.1 The case of Romania 56. Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timisoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the 47 Romanian Civil Aeronautic Authority for confirming these flight movements . 57. It is known that detainee transport flights are customarily night flights, as is the case of the other rendition flights already documented. The only other points on this rendition circuit from which the plane took off at a similar hour of the morning were Rabat, Morocco (departure at 2.05 am) and Skopje, Macedonia (departure at 1.30 am). In both of these cases, we possess sufficient indications to claim that when the plane left its destination, it was carrying a prisoner to a secret detention centre situated in Kabul. 58. We can likewise affirm that the plane was not carrying prisoners to further detention when it left Timisoara. Its next destination, after all, was Palma de Mallorca, a well-established “staging point”, also used for recuperation purposes in the midst of rendition circuits. 46 See Flight logs related to the successive rendition operations of Binyam Mohamed and Khaled El-Masri in January 2004, reproduced in this report at Appendix 1. The landings in question are at Algiers (Algeria) and Timisoara (Romania). 47 See Information from the records of the Romanian Civil Aeronautic Authority and the Romanian Ministry of National Defence, contained as Annexes to the letters sent to me by György Frunda, Chairman of the Romanian delegation to PACE, dated 24 February 2006 and 7 April 2006. I wish to thank my colleague Mr Frunda for his outstanding efforts in gathering information from various Romanian authorities on my behalf. 17 AS/Jur (2006) 16 Part II 59. There is documentation in this instance that the passengers of the N313P plane, using US 48 49 Government passports and apparently false identities , stayed in a hotel in Palma de Mallorca for two nights before returning to the United States. One can deduce that these passengers, in addition to the crew of the plane, comprised a CIA rendition team, the same team performing all renditions on this circuit. 60. The N313P plane stayed on the runway at Timisoara on the night of 25 January 2004 for barely one hour. Based on analysis of the flight capacity of N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is highly unlikely that the purpose of heading to Romania was to refuel. The plane had the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul that night – twice previously on the same circuit, it had already flown longer distances of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers). 61. It should be recalled that the rendition team stayed about 30 hours in Kabul after having "rendered" Khaled El-Masri. Then, it flew to Romania on the same plane. Having eliminated other explanations – including that of a simple logistics flight, as the trip is a part of a well-established renditions circuit – the most likely hypothesis is that the purpose of this flight was to transport one or several detainees from Kabul to Romania. 62. We consider that while all these factual elements do not provide definitive evidence of secret detention centres, they do justify on their own a positive obligation to carry out a serious investigation, which the Romanian authorities do not seem to have done to date. 2.6.2. The case of Poland 63. Poland was likewise singled out as a country which had harboured secret detention centres. 64. On the basis of information obtained from different sources we were able to determine that persons suspected of being high level terrorists were transferred out of a secret CIA detention facility 50 in Kabul, Afghanistan in late September and October 2003 . During this period, my official database shows that the only arrival of CIA-linked aircraft from Kabul in Europe was at the Polish airport of Szymany. The flights in question, carried out by the well-known ‘rendition plane’ N313P, bear all the hallmarks of a rendition circuit. 48 See Andrew Manreas, La investigación halla en los vuelos de la CIA decenas de ocupantes con estatus diplomatico, in El Pais, Palma de Mallorca, 15 November 2005. 49 See Matias Valles, journalist with Diario de Mallorca, Testimony before theTDIP Temporary Committee of the European Parliament, 20 April 2006. Valles researched a total of 42 names he had uncovered from the records of a hotel in Mallorca where the passengers of the N313P plane stayed. Many proved to be “false identities”, apparently created using the names of characters from Hollywood movies such as Bladerunner and Alien. Valles confirmed that at least some of the persons who arrived back in Palma de Mallora from Romania after the rendition circuit were the same persons who had stayed in the hotel at a previous point on the circuit – thus indicating that the “rendition team” remained on the plane throughout its trip. 50 My team has worked closely with Human Rights Watch to corroborate the available evidence of detainee movements out of Afghanistan. For an indication of the earlier analysis of this information, see Human Rights Watch Statement on US Secret Detention Facilities in Europe, 7 November 2005, available at: http://hrw.org/english/docs/2005/11/07/usint11995.htm. AS/Jur (2006) 16 Part II 18 65. The plane had arrived in Kabul, on 21 September 2003, from Tashkent, Uzbekistan. The axis 51 between Tashkent and Kabul was well known for detainee transfers . Still, according to information received, the most significant detainee movements at this time probably involved transfers out of 52 Kabul. The explanation attributed by NGO sources and journalists who have investigated this period is that the CIA required a more isolated, secure, controlled environment in which to hold its high-level detainees, due to the proliferation of both prison facilities and prisoners in Afghanistan arising from the escalating “war on terrorism”. 66. Thus, the circuit in question continued on 22 September 2003, when the plane flew from Kabul to Szymany airport in Poland. On the same grounds given above for the case of Romania, one may deduce that this flight was a CIA rendition, culminating in a “detainee drop-off” in Poland. 67. Szymany is described by the Chairman of the Polish delegation to PACE as a “former Defence Ministry airfield”, located near the rural town of Szczytno in the North of the country. It is close to a large facility used by the Polish intelligence services, known as the Stare Kiejkuty base. Both the 53 airport and the nearby base were depicted on satellite images I obtained in January 2006 . 68. It is noteworthy that the Polish authorities have been unable, despite repeated requests, to provide me with information from their own national aviation records to confirm any CIA-connected flights into Poland. In his letter of 9 May 2006, my colleague Karol Karski, the Chairman of the Polish delegation to PACE, explained: "I addressed the Polish authorities competent in gathering the air traffic data, related to these aircraft numbers… I was informed that several numbers from your list were still not found in our flight logs’ records. Being not aware about the source of your information connecting these flight numbers with Polish airspace, I am not able, [nor are] the Polish air traffic control 54 authorities, to comment on the fact of missing them in our records." 69. Mr. Karski also made the following statement, which reflects the position of the Polish Government on the question of CIA renditions: "According to the information I have been provided with, none of the questioned flights was recorded in the traffic controlled by our competent authorities – in connection with Szymany or any other Polish airport." 70. The absence of flight records from a country such as Poland is unusual. A host of neighbouring countries, including Romania, Bulgaria and the Czech Republic have had no such similar problems in retrieving official data for the period since 2001. Indeed, the submissions of these countries, along with my data from Eurocontrol, confirm numerous flights into and out of Polish airports by the CIA-linked planes that are the subject of this report. 51 See Craig Murray, former United Kingdom Ambassador to Uzbekistan, Exchange of views with the Committee on Legal Affairs and Human Rights (AS/Jur), Strasbourg, 24 January 2006. The minutes reflect that Mr Murray spoke of “evidence of the CIA chartering flights to Uzbekistan, between Kabul and Tashkent, and of the use of torture by Uzbek agents, as well as evidence that the American and British authorities were willing to receive and use information obtained under torture by foreign agencies, the relevant decision having been taken at a high level”. See also Don van Natta Jr, Growing Evidence US Sending Prisoners to Torture Capital: Despite Bad Record on Human Rights, Uzbekistan is Ally, New York Times, 1 May 2005, available at: www.nytimes.com/2005/05/01/international/01renditions.html?ex=1272600000&en=932280de7e0c1048&ei=5088 &partner=rssnyt&emc=rss. 52 For an excellent account of the motivations for moving detainees to secret locations, see James Risen, State of War: The Secret History of the CIA and the Bush Administration, Free Press, New York, 2006, at pages 29 to 31: “The CIA wanted secret locations where it could have complete control over the interrogations and debriefings, free from the prying eyes of the international media, free from monitoring by human rights groups, and, most important, far from the jurisdiction of the American legal system.” 53 See European Union Satellite Centre, information provided to the Rapporteur on 23 January 2006. For further information see the section below at heading 4.1. 54 Letter sent to me by Karol Karski, Chairman of the Polish delegation to PACE, dated 9 May 2006. 19 AS/Jur (2006) 16 Part II 71. In this light, Poland cannot be considered to be outside the rendition circuits simply because it has failed to furnish information corroborating our data from other sources. I have thus presented in my graphic the suspected rendition circuit involving Szymany airport, in which the landing at Szymany is placed in the category of “detainee drop-off” points. 72. According to records in our possesion, the N313P plane remained at Szymany airport on 22 September 2003 for just 64 minutes. I can also confirm that the plane then flew from Szymany to Romania, where it landed, after a change of course, in Bucharest Baneasa airport. Here, as in the case of Timisoara above, the aircraft landing in Romania fits the profile of a “detainee drop-off”. 73. It is possible that several detainees may have been transported together on the flight out of Kabul, with some being left in Poland and some being left in Romania. This pattern would conform with information from other sources, which indicated the simultaneous existence of secret prisons in 55 these two Council of Europe member States . 74. This suspected rendition circuit continued after Romania by landing in Rabat, Morocco, which 56 several elements point to as a location that harbours a detention facility . It is conceivable that this landing may even have constituted a third “detainee drop-off” in succession before the plane returned to the United States, via Guantanamo Bay. 75. As for Romania, I find that there is now a preponderance of indications, not to prove the existence of detention centres, but in any case to open a real in-depth and transparent inquiry. One can add that the sources at the origin of the publications by Human Rights Watch, The Washington Post and ABC News, referring to the existence of such centres in Romania and Poland, are mutliple, concordant and particularly well informed, as they belong to the very services that have directed these operations. 2.7. The human impact of rendition and secret detention 76. Rendition is a degrading and dehumanising practice; certainly for its victims, but also for those who perform the operations. This simple realisation has become clear to me and my team as we have met with various people whose lives have been indelibly changed by rendition. 77. Therefore, while it is necessary to analyse the global system that rendition has become, we should never lose sight of the human dimension, as this is at the core of the abuses. 78. I have considered the human impact of rendition in two ways: first, the systematic CIA practice of preparing a detainee to be transported on a rendition aircraft; and second, the grave and longlasting psychological damage that extraordinary rendition inflicts upon its victims. 55 See, inter alia, Brian Ross and Richard Esposito, Sources Tell ABC News Top Al-Qaeda Figures Held in Secret CIA Prisons: 10 out of 11 Terror Leaders Subjected to ‘Enhanced Interrogation Techniques’, ABC News, 5 December 2005, available at: http://abcnews.go.com/WNT/Investigation/story?id=1375123. 56 See the case study of Binyam Mohamed at section 3.9 of this report. AS/Jur (2006) 16 Part II 2.7.1. 20 CIA methodology – how a detainee is treated during a rendition 79. The descriptions of rendition operations in this report reflect many different individual cases. These cases entail a diverse range of victims, being captured in and transferred to numerous different countries, spanning a time period of several years. The stories are recounted by both first- and second-hand witnesses, speaking various languages in various public and private forums. Some of the people subjected to rendition have since been released, while others are still detained in the custody of the United States or another country. In short, the cases appear to have little or no connection to one another. 80. Yet on the contrary there are striking parallels between several of these renditions, particularly as they relate to the CIA’s methodology. It seems that in each separate case, rendition was carried out in an almost identical manner. Collectively the cases in the report testify as to the existence of an established modus operandi of rendition, put into practice by an elite, highly-trained and highlydisciplined group of CIA agents who travel around the world mistreating victim after victim in exactly the same fashion. 81. It falls to analyse this methodology through the lens of human rights, as they are enshrined in the European Convention on Human Rights (ECHR) and applied in the vast majority of the countries that share these values. Every individual, even those accused, or found guilty, of involvement in terrorism and other categories of serious crime, has the unqualified right not to be tortured or subjected to inhuman and degrading treatment or punishment. While state agents have the right to use force in carrying out their work, there are obviously strict limits on the extent to which restraining or coercive measures may be applied during the course of an arrest or transfer operation. 82. According to Michael Scheuer, the CIA intentionally puts security concerns ahead of the rights of the detainee during a rendition operation: “Clearly your first priorities in those situations are to protect your officers. So the person would generally be shackled and restrained. And probably at least getting on to the plane and while it was on the ground, he was blindfolded. I would think that the locals who arrested him would probably be the ones who would handcuff and blindfold him. Then he would be put on the plane, prepared and tied into his seat, or however it happened, and be watched over by guards from the receiving country he was going 57 back to.” 83. I consider that no security measure justifies a massive and systematic violation of human rights and dignity. In the cases examined – whilst being conscious of dealing with possibly dangerous persons – the principle of proportionality was simply ignored and with it the dignity of the person. In several instances, the actions undertaken in the course of a ‘security check’ were excessive in relation 58 59 to security requirements and may therefore constitute a violation of Article 3 ECHR . While it does 60 not appear to reach the threshold for torture , it may well be considered as inhuman or degrading, 61 particularly in the extent to which it humiliates the person being rendered . 57 Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center; interview carried out by Rapporteur’s representative in Washington, DC, 12 May 2006 (transcript on file with the Rapporteur). 58 Mr Scheuer appears to understate severity of the measures taken during a “security check”. A further discrepancy with his description is that in most cases, as far as I can discern, American agents carry out the entire “security check” themselves. I have not received any account of European security police being directly involved in administering these coercive measures, although there was at least one Egyptian policeman involved in the transfer of Ahmed Agiza and Mohamed Alzery from Sweden. 59 Article 3 ECHR states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 60 I agree with the assessment of Sweden’s Parliamentary Ombudsman, Mats Melin, on the threshold for torture: “It is clear that torture is a concept reserved for cases involving the intentional infliction of severe pain or grave suffering intended, for example, to obtain information to punish or intimidate.” See Mats Melin, Parliamentary Ombudsman (Sweden), A review of the enforcement by the Security Police of a Government decision to expel two Egyptian citizens, Adjudication No. 2169-2004, dated 22 March 2005. Melin cites the judgement of the European Court of Human Rights (ECtHR) in Salman v. Turkey, 27 June 2000. 61 In determining whether the standard for degrading treatment is met, the ECtHR takes account of whether it has been expressly intended to humiliate the individual in question, along with its effect on the individual’s personality. In the context of a deprivation of liberty, the treatment must be in excess of the humiliation inherent in arrest or detention. See the judgement of the ECtHR in Öcalan v. Turkey, 12 March 2003. 21 AS/Jur (2006) 16 Part II 84. The “security check” used by the CIA to prepare a detainee for transport on a rendition plane was described to us by one source in the American intelligence community as a “twenty-minute 62 takeout” . His explanation was that within a very short space of time, a detainee is transformed into a state of almost total immobility and sensory deprivation. “The CIA can do three of these guys in an 63 hour. In twenty minutes they’re good to go.” An investigating officer for the Swedish Ombudsman 64 was struck by the “fast and efficient procedure” used by the American agents , while the Swedish interpreter who witnessed the CIA operation at Bromma Airport said simply: “it surprised me how the 65 heck they could have dressed him so fast” . 85. The general characteristics of this “security check” can be established from a host of 66 testimonies as follows : i. it generally takes place in a small room (a locker room, a police reception area) at the airport, or at a transit facility nearby. ii. the man is sometimes already blindfolded when the operation begins, or will be blindfolded quickly and remain so throughout most of the operation. iii. four to six CIA agents perform the operation in a highly-disciplined, consistent fashion – they are dressed in black (either civilian clothes or special ' uniforms' ), wearing black gloves, with 67 their full faces covered. Testimonies speak, variously, of “big people in black balaclavas” , 68 69 people “dressed in black like ninjas” , or people wearing “ordinary clothes, but hooded” . 70 iv. the CIA agents “don’t utter a word when they communicate with one another” , using only hand signals or simply knowing their roles implicitly. v. some men speak of being punched or shoved by the agents at the beginning of the operation 71 in a rough or brutal fashion ; others talked about being gripped firmly from several sides vi. the man’s hands and feet are shackled. vii. the man has all his clothes (including his underwear) cut from his body using knives or scissors in a careful, methodical fashion; an eye-witness described how “someone was taking these clothes and feeling every part, you know, as if there was something inside the clothes, 72 and then putting them in a bag” . 62 Confidential interview with a source in the US intelligence community who wished to remain anonymous; interview carried out in the United States by the Rapporteur’s representative. 63 Ibid. 64 See Office of the Parliamentary Ombudsman (Sweden), Interview conducted with state official X of the Security Police (Säpo), Case No. 2169-2004, 30 September 2004 (translated transcript on file with the Rapporteur – hereinafter “Interview with Swedish Säpo interpreter”); comment made at page 23. 65 Ibid, observation made by the Säpo interpreter in answer to a question, at page 13. 66 The person subjected to the “security check” is referred to generically as “the man”, because we have not thus far heard of any cases in which it has happened to women. This overview contains aspects common to several renditions, while excerpts from individual testimonies are cited separately hereunder. 67 See Bisher Al-Rawi, statement made to his lawyer during an interview at Guantanamo Bay (contained in unclassified attorney notes), submitted to the High Court of Justice in Case No. 2005/10470/05 through the Witness Statement of Clive Stafford Smith (hereinafter “Al-Rawi statement to lawyer”), at page 31. 68 See Jamil El-Banna, statement made to his lawyer during an interview at Guantanamo Bay (contained in unclassified attorney notes), submitted to the High Court of Justice in Case No. 2005/10470/05 through the Witness Statement of Clive Stafford Smith (hereinafter “El-Banna statement to lawyer”), at page 40. 69 See Interview with Swedish Säpo interpreter, supra note 85, at page 10. 70 See Office of the Parliamentary Ombudsman (Sweden), Interview conducted with Kjell Jönsson, Swedsh lawyer for Mohamed Alzery, Case No. 2169-2004, September 2004 (translated transcript on file with the Rapporteur – hereinafter “Ombudsman’s Interview with Swedish lawyer Jönsson”); at page 6. 71 See Declaration of Khaled El-Masri in support of Plaintiff’s Opposition to the United States’ Motion to Dismiss, in El-Masri v. Tenet et al, Eastern District Court of Virginia in Alexandria, 6 April 2006 (hereinafter “El-Masri statement to US Court in Alexandria, 6 April 2006”) at page 9: “As I was led into this room I felt two people violently grab my arms… They bent both my arms backwards. This violent motion caused me a lot of pain. I was beaten severely from all sides.” 72 See Interview with Swedish Säpo interpreter, supra note 65, at page 13. AS/Jur (2006) 16 Part II 22 viii. the man is subjected to a full-body cavity search, which also entails a close examination of his hair, ears, mouth and lips. 73 74 ix. the man is photographed with a flash camera, including when he is nearly or totally naked ; in some instances, the man' s blindfold may be removed for the purpose of a photograph in 75 which his face is also identifiable . x. some accounts speak of a foreign object being forcibly inserted into the man' s anus; some accounts speak more specifically of a tranquiliser or suppository being administered per 76 rectum - in each description this practice has been perceived as a grossly violating act that affronts the man’s dignity. xi. the man is then dressed in a nappy or incontinence pad and a loose-fitting "jump-suit" or set of overalls; “they put diapers on him and then there is some handling with these handcuffs and foot chains, because first they put them on and then they are supposed to put him in overalls, 77 so then they have to alternately unlock and relock them” . 78 xii. the man has his ears muffled, sometimes being made to wear a pair of "headphones" xiii. finally a cloth bag is placed over the man' s head, with no holes through which to breathe or detect light; they “put a blindfold on him and after that a hood that apparently reaches far down 79 on his body” . xiv. the man is typically forced aboard a waiting aeroplane, where he may be “placed on a 80 stretcher, shackled” , or strapped to a mattress or seat, or “laid down on the floor of the plane 81 and they bind him up in a very uncomfortable position that makes him hurt from moving” . xv. in some cases the man is drugged and experiences little or nothing of the actual rendition 82 flight ; in other cases, factors such as the pain of the shackles or the refusal to drink water or 83 use the toilet make the flight unbearable: “this was the hardest moment in my life” . xvi. in most cases, the man has no notion of where he is going, nor the fate that awaits him upon arrival. 86. This manner of treating detainees has been heavily criticised by the lawyers of many of the persons subjected to rendition. In his testimony to the Swedish Ombudsman, Kjell Jönsson, the 84 Swedish lawyer for Mohamed Alzery , stated his concern that the measures taken before the rendition were disproportionate to the security needs: “from Alzery’s point of view it would have been perfectly enough to ask him to co-operate and he would have done that just like he always has done 85 before” . 73 See Interview with Swedish Säpo interpreter, supra note 65, at page 13: “he wasn’t naked, he had his underpants on; the upper body was undressed and then his picture was taken.” 74 See Binyam Mohamed Al-Habashi, statement made to his lawyer during an interview at Guantanamo Bay, contained in unclassified attorney notes of Clive A. Stafford Smith, dated 1 August 2005 (document on file with the Rapporteur – hereinafter “Binyam Mohamed statements to lawyer at Guantanamo”), at page 19: “there was a white female with glasses… One of them held my penis and she took digital pictures.” 75 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71, at page 9: “They took off my blindfold… As soon as it was removed, a very bright flashlight went off and I was temporarily blinded. I believe from the sounds that they had taken photographs of me throughout.” 76 See Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 6: “they bend him forward and he can feel that something is being pushed up his rectum… after that he felt calmer and felt a muscle relaxation in all his body, but he was wide awake, so he was not sedated”. 77 See Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 6. 78 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71, at page 9. Also see reference to “earmuffs” in Al-Rawi statement to lawyer, supra note 67, at page 31; and reference to “earphones” in Binyam Mohamed statements to lawyer at Guantanamo, at page 5. 79 See Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 6. 80 See Al-Rawi statement to lawyer, supra note 67, at page 31. 81 See Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 6. 82 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71, at page 10: “They put something over my nose. I think it was some kind of anaesthaesia. It felt like the trip took about four hours, but I don’t really remember. I was mostly unconscious for the duration”. 83 See Al-Rawi statement to lawyer, supra note 67, at page 31. 84 For more detail on the cases of Ahmed Agiza and Mohamed Alzery, please refer to the case study in the following section. 85 See Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 8. 23 AS/Jur (2006) 16 Part II 87. Perhaps the most troubling aspect of this systematic practice, however, is that it appears to be intended to humiliate. Many accounts speak of these measures being taken despite ‘strong resistance’, both physical and verbal, on the part of the detainee. The nudity, forced shackling ‘like an 86 animal’ and being forced to wear nappies appear offensive to the notions of dignity held by the detainees. In my view it is simply not acceptable in Council of Europe member States for security services, whether European or foreign, to treat people in a manner that amounts to such “extreme 87 humiliation” . 2.7.2. The effects of rendition and secret detention on individuals and families 88. In compiling this report, members of my team and I have met directly with several victims of renditions and secret detentions, or with their families. In addition, we have obtained access to further first-hand accounts from victims who remain detained, in the form of their letters or diaries, unclassified notes from their discussions with lawyers, and official accounts of visits from Embassy officials. 89. Personal accounts of this type of human rights abuse speak of utter demoralisation. Of course, the despair is greatest in cases where the abuse persists – where a person remains in secret detention, without knowing the basis on which he is being held, and where nobody apart from his captors knows about his exact whereabouts or wellbeing. The uncertainty that defines rendition and 88 secret detention is torturous, both for those detained and those for whom they are “disappeared” . 90. Yet the ordeal continues long after a detainee is located, or even released and able to return home. Victims have described to us how they suffer from flashbacks and panic attacks, an inability to lead normal relationships and a permanent fear of death. Families have been torn apart. On a personal level, deep psychological scars persist; and on a daily basis, stigma and suspicion seem to haunt anybody branded as “suspect” in the “war on terror”. In short, links with normal society appear practically impossible to restore. 91. I salute the remarkable courage and resilience of those who have been held in secret detention and subsequently released, like Khaled El-Masri and Maher Arar. Both these men have spoken eloquently to us about what moves them to recount their experiences despite the obvious pain and trauma of doing so. From these words we must draw our own resolve to uncover the secret abuses of the spider’s web and ensure that they never again be allowed to occur. From Mr. El-Masri, “all I want is to know the truth about what happened to me and to have the American Government 89 apologise for what it did” ; from Mr. Arar, “the main purpose of talking about my torture is to prevent 90 the same treatment from ever happening to another human being” . 86 The detainee who made this statement asked that he remain anonymous. The words “extreme humiliation” are used in the Ombudsman’s Interview with Swedish lawyer Jönsson, supra note 70, at page 8. In El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71, at page 9, he talks of “degrading and shameful” acts that left him feeling “terrified and utterly humiliated”. 88 See Louise Arbour, United Nations High Commissioner for Human Rights, Human Rights: A casualty of the war on terror?; interview for UN World Chronicle No. 996, 7 December 2005 (transcript provided by UN Television, on file with the rapporteer): “Secret detention under these extreme conditions is an unacceptable treatment, both of the person detained and I would certainly suggest of members of their families [for whom], for all purposes, these people have disappeared.” 89 Khaled El-Masri made this statement to me during our meeting in Strasbourg in April 2006. 90 Maher Arar made this statement to my representative during their meeting in Brussels in March 2006. 87 AS/Jur (2006) 16 Part II 24 3. Specific examples of documented renditions 3.1. Khaled El-Masri 92. We have spoken for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months. 3.1.1. The individual account of Mr. El-Masri 93. A summary of the unprecedented suffering endured by Mr El-Masri reads as follows: 91 94. [A]ccording to the statement of facts presented to the US District Court , Khaled El-Masri, a German citizen of Lebanese descent, travelled by bus from his home near Neu Ulm, Germany, to Skopje, Macedonia, in the final days of 2003. After passing through several international border crossings without incident, Mr El-Masri was detained at the Serbian-Macedonian border because of alleged irregularities with his passport. He was interrogated by Macedonian border officials, then transported to a hotel in Skopje. Subsequent to his release in May, 2004, Mr El-Masri was able to identify the hotel from website photographs as the Skopski Merak, and to identify photos of the room where he was held and of a waiter who served him food. Over the course of three weeks, Mr El-Masri was repeatedly interrogated about alleged contacts with Islamic extremists, and was denied any contact with the German Embassy, an attorney, or his family. He was told that if he confessed to AlQaeda membership, he would be returned to Germany. On the thirteenth day of confinement, Mr ElMasri commenced a hunger strike, which continued until his departure from Macedonia. After 23 days of detention, Mr El-Masri was videotaped, blindfolded, and transported by vehicle to an airport. 95. There, he was beaten, stripped naked, and thrown to the ground. A hard object was forced into his anus. When his blindfold was removed, he saw seven or eight men, dressed in black and hooded. He was placed in a diaper and sweatsuit, blindfolded, shackled, and hurried to a plane, where he was chained spreadeagled to the floor. He was injected with drugs and flown to Baghdad, then on to Kabul, Afghanistan, an itinerary that is confirmed by public flight records. At some point prior to his departure, an exit stamp was placed in his passport, confirming that he left Macedonia on January 23, 2004. 96. Upon arrival in Kabul, Mr El-Masri was kicked and beaten and left in a filthy cell. There he would be detained for more than four months. He was interrogated several times in Arabic about his alleged ties to 9/11 conspirators Muhammed Atta and Ramzi Bin Al-Shibh and to other alleged extremists based in Germany. American officials participated in his interrogations. All of his requests to meet with a representative of the German government were refused. 97. In March, Mr El-Masri and several other inmates commenced a hunger strike. After nearly four weeks without food, Mr El-Masri was brought to meet with two American officials. One of the Americans confirmed Mr El-Masri’s innocence, but insisted that only officials in Washington, D.C. could authorize his release. Subsequent media reports confirm that senior officials in Washington, including the CIA Director Tenet, were informed long before Mr El-Masri’s release that the United States had detained an innocent man. Mr El-Masri continued his hunger strike. On the evening of April 10, Mr El-Masri was dragged from his room by hooded men and force-fed through a nasal tube. 98. At around this time, Mr El-Masri felt what he believed to be a minor earthquake. Geological records confirm that in February and April, there were two minor earthquakes in the vicinity of Kabul. 91 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71. 25 AS/Jur (2006) 16 Part II 99. On May 16, Mr El-Masri was visited by a uniformed German speaker who identified himself as “Sam”. “Sam” refused to say whether he had been sent by the German government, or whether the government knew about Mr El-Masri’s whereabouts. Subsequent to his release, Mr El-Masri identified “Sam” in a photograph and a police lineup as Gerhard Lehmann, a German intelligence officer. 100. On May 28, 2004, Mr El-Masri, accompanied by “Sam,” was flown from Kabul to a country in Europe other than Germany. He was placed, blindfolded, into a truck and driven for several hours through mountainous terrain. He was given his belongings and told to walk down a path without turning back. Soon thereafter, he was confronted by armed men who told him he was in Albania and transported him to Mother Theresa Airport in Tirana. There, he was accompanied through customs and immigration controls and placed on a flight to Frankfurt. 101. Upon his return to Germany, Mr El-Masri contacted an attorney and related his story. The attorney promptly reported Mr El-Masri’s allegations to the German government, thereby initiating a formal investigation by public prosecutors. Pursuant to their investigation, German prosecutors obtained and tested a sample of Mr El-Masri’s hair, which proved consistent with his account of detention in a South-Asian country and deprivation of food for an extended period. That investigation, as well as a German parliamentary investigation of Mr El-Masri’s allegations, is ongoing. 3.1.2. Elements of corroboration for Mr. El-Masri’s account 102. Mr El-Masri’s account is borne out by numerous items of evidence, some of which cannot yet 92 be made public because they have been declared secret , or because they are covered by the confidentiality of the investigation underway in the office of the Munich prosecuting authorities following Mr El-Masri’s complaint of abduction. 103. The items already in the public domain are cited in the afore-mentioned memorandum submitted to the Virginia court in which Mr El-Masri lodged his complaint: • • • • • • • 92 93 Passport stamps confirming Mr El-Masri’s entry to and exit from Macedonia, as well as exit from Albania, on the dates in question; Scientific testing of Mr El-Masri’s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri’s account that he spent time in a South-Asian country and was deprived of food for an extended period of time; Other physical evidence, including Mr El-Masri’s passport, the two t-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors; Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case, then registered by the FAA as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at the Skopje airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital; Witness accounts from other passengers on the bus from Germany to Macedonia, which confirm Mr El-Masri’s account of his detention at the border; Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr ElMasri has identified both his actual room and a staff member who served him food; Geological records that confirm Mr El-Masri’s recollection of minor earthquakes during his detention in Afghanistan; The information in question appears in the report of the German Federal Government to the parliamentary committee monitoring the secret services (PKG) ; I was able to obtain from the chairman of that committee a “public” versionof the report, which contains no particulars of individual cases; while a version classified “confidential - for official use only” was handed to me by a journalist. This information enabled me to form a judgment as to the credibility of Mr El-Masri’s account, but I have chosen to preserve the confidentiality of that report although, to be frank, I believe that the public should have access to this kind of information. To my knowledge, there is an even fuller version classified “secret”, which I declined to obtain out of respect for German parliamentary procedure. 93 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71. AS/Jur (2006) 16 Part II • • • 26 Evidence of the identity of “Sam,” whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services; Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognizable to another rendition victim who was detained by the U.S. in Afghanistan; Photographs taken immediately upon Mr El-Masri’s return to Germany that are consistent with his account of weight loss and unkempt grooming. Numerous government inquiries, including the German prosecutors’ investigation, a German parliamentary investigation, and various intergovernmental human rights inquiries, are almost certain to produce additional corroborating evidence. 3.1.3. The role of "the former Yugoslav Republic of Macedonia" 104. The role of "the former Yugoslav Republic of Macedonia" in the rendition of Khaled El-Masri has yet to be fully understood. The information collected on site by a member of my team appears to show a certain ambiguity in the Macedonian position. In effect, the Government of Macedonia has adopted an ‘official line’ of complete negation, repeated in a rigid and stereotyped fashion. 105. I am indebted to the delegation from the European Parliament for arranging and administering an excellent programme of meetings with the highest-level representatives of the 94 Macedonian Government and Parliament . I share many of the reflections of my colleagues from the European Parliament in their review of these meetings, not least the sense of discomfort that in many 95 areas the Macedonian authorities fell short of genuine transparency . 188.8.131.52. The position of the authorities 106. The ‘official line’ of the Macedonian Government was first contained in a letter from the Minister of Interior, Ljubomir Mihajlovski, to the Ambassador of the European Commission, Erwan Fouere, dated 27 December 2005. In its simplest form, it essentially contains four items of information “according to police records”: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4.00pm on 31 December 2003; second, he was interviewed by “authorised police officials” who suspected “possession of a falsified travel document”; third, approximately five hours later, Mr El-Masri “was allowed entrance” into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo. 107. Mr Mihajlovski restated exactly the same Government position in response to a parliamentary 96 question in the Sobranie on 26 January 2006 . He cited “official evidence of the Ministry of Interior” and went on to describe the allegations as “speculative and unfounded”. 108. The President of the Republic, Branko Crvenkovski, set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: “Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth.” 94 The programme of meetings took place between 27 and 29 April 2006. President Branko Crvnekovski said in his opening remarks on 27 April: “Macedonia is completely determined and open for co-operation with you. What I want to repeat is that we’re completely prepared to establish the truth… Our joint task is to find out the truth and not to respond to the current public opinion or the positions of the media”; Siljan Avramovski, the former Head of the UBK, Macedonia’s counter-intelligence service stated on 28 April: “We will provide maximum transparency and openness in our discussions”. These were fairly typical of the sentiments expressed by all the officials who met with the delegation. 96 Mr Slobodan Casule, a prominent opposition politician who met with the European delegation on 27 April 2006, posed the question. He said he sought clarification about the El-Masri case because he believes that “such issues should be opened and closed within the Parliament”. 95 27 AS/Jur (2006) 16 Part II 109. On Friday 28 April the official position was presented in far greater detail during a meeting 97 with Siljan Avramovski, who was Head of the UBK , Macedonia’s main intelligence service, at the time of the El-Masri case. Avramovski stated that the UBK’s ‘Department for Control and Professional Standards’ had undertaken an investigation into case and traced official records of all Mr El-Masri’s 98 contact with the Macedonian authorities. The further details as presented by Mr Avramovski are summarized as follows: Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year’s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents. Upon examining Mr El-Masri’s passport, the Macedonian border police developed certain suspicions and decided to “detain him”. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey. The objective of holding Mr El-Masri was to conduct an interview with him, which (according to Avramovski) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as “Integrated Border Management and Security”. UBK officials participated in the interview of Mr El-Masri. The officials enquired into Mr El-Masri’s reasons for traveling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. Avramovski explained: “I think these were all standard questions that are asked in the context of such a routine procedure – I don’t think I need to go into further details”. At the same time, Macedonian officials undertook a preliminary visual examination of Mr ElMasri’s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait, yet claimed to possess German citizenship. A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol’s network, so the information had to be transmitted to Skopje, from where an electronic request was made to the central Interpol database in Lyon. A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out. When it was established that there existed no Interpol warrant against Mr El-Masri and no 99 further grounds on which to hold him , he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior, Mr Mihajlovski said: “we’re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we’re not in a position to know how he 100 traveled further” . 97 Uprava za Bezbednosti i Kontrarazuznavanje, or the Security and Counter-Intelligence Service. Meeting with Siljan Avramovski, now Deputy Director of UBK in the Ministry of Interior, 28 April 2006, transcript on file with the Rapporteur. 99 Avramovski stated that Macedonian border police decided for themselves that Mr El-Masri’s passport was genuine, after an unspecified process or length of examination “At our border points, expert members of the border police are qualified to assess whether a passport is counterfeit or not. When they decided that it was genuine, they took no further action. They did not inform the German Embassy; they didn’t feel the need to request any documents against which to compare the passport.” 100 Meeting with Ljubomir Mihajlovski, Minister of Interior, 28 April 2006, transcript on file with the Rapporteur. 98 AS/Jur (2006) 16 Part II 28 The Ministry of Interior subsequently established, according to Avramovski, that Mr El-Masri had staid at a hotel in Skopje called the “Skopski Merak”. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the Guest Book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004. The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo. When asked whether Mr ElMasri had received a stamp to indicate his departure by this means, Avramovski answered: “Normally there should be a stamp on the passport as you cross the border out of Macedonia, but I can’t be sure. UNMIK is also present on the Kosovo border and is in charge of the protocol on that side… My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn’t receive a stamp on either occasion.” Avramovski concluded his summary with the words: “This is the truth of the case that has been exploited by the media – the so-called El-Masri case.” 110. In a separate meeting directly following Avramovski’s briefing, Minister Mihajlovski retained the position and added very few further details. Both officials were keen to talk about the case as if it were a routine matter, one which only came to their attention when it was reported in the local and international press. They referred repeatedly to the media “prejudice” and “pressure” against Macedonia. Mihajlovski even implied that there was a conspiracy theory at play, designed to discredit the country:“Who is really behind all of this? This case is making so much damage to the country. If you can get a reason why it is happening, please send us a message; tell us.” 111. It seems clear that the Macedonian public has reacted negatively to the El-Masri affair. Most Macedonians feel aggrieved that their country has been given such a bad press and is associated with what is often portrayed as a manipulative operation. Many regard the international media interest as a thinly veiled attempt to discredit Macedonia’s prospects for European integration. In reality, it seems that the Macedonian Government is itself responsible for this situation. More transparency, and a greater degree of preparedness genuinely to seek the truth, rather than locking themselves into a pre-established, dogmatic scheme, would have certainly avoided much criticism and suspicion. 29 AS/Jur (2006) 16 Part II 184.108.40.206. Further elements 112. The Government’s official line is based on what Mr Avramovski called “a reconstruction after the fact, based on information we established through documents and discussions” with, inter alia, “employees of the hotel”. There is no doubt in my mind that the Ministry of Interior has put together a very thorough reconstruction of the case; just not an accurate one. Equally I accept that the Ministry has undertaken “discussions” with witnesses, including hotel employees; but I regard these as efforts to harmonise the official line, not to establish the truth. 113. One could, with sufficient application, begin to tease out discrepancies in the official line. For example, the Ministry of Interior stated that “the hotel owner should have the record of Mr El-Masri’s bill”, while the hotel owner responded to several inquiries, by telephone and in person, by saying that the record had been handed over to the Ministry of Interior. 114. Contacts we were able to make with sources close to the administration and to the intelligence services have enabled us to obtain much more credible information, in order to better understand what really happened. We can consequently present a more coherent analysis of this case. For obvious reasons, the sources contacted locally wish to stay anonymous, at least for the time being. 115. The Government’s public portrayal seems at first glance perfectly plausible. However, it ceases to be credible when it asserts that El-Masri was allowed to proceed freely from Tabanovce on the evening of 31 December 2003. In reality, that evening signaled the beginning of his five-month ordeal in secret detention ordered by the CIA. 116. What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis similar to the one Avramovski says was undertaken by Interpol: whether the person checked out had contacts with terrorist movements, in particular Al Qaida. Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he would be handed over to the CIA for transfer. 117. The UBK has an excellent reputation for its professionalism. It is well practiced in the conduct of clandestine surveillance and detention operations, having exploited its own network of ’secret 101 apartments’ for decades . Information obtained from our internal sources indicates that the UBK is equally skilled in working on behalf of the CIA. – we even learned of one previous collaborative operation between these services in the past, targeted at apprehending suspected Islamic terrorists. In the El-Masri case, according to our understanding, this co-operation was particularly efficient and the Macedonian services fulfilled the expectations of the CIA. 101 The Macedonian Helsinki Committee for Human Rights has researched questions of secret detention and produced a variety of credible reports (copies of which are on file with the Rapporteur). In many cases, people are held in secret apartments to get them “out of the system” for an indefinite period of time, for the UBK to interrogate them and elicit confessions. Further still, in the notorious “Rastanski Lozja” case of March 2002, Macedonian police were said to have shot dead “seven members of a terrorist group” in what seemed like an act of summary exection. The Helsinki Committee wrote in its Annual Report of 2002: “the largest number of human rights violations was perpetrated by officers of the special units at the Ministry of Interior”. AS/Jur (2006) 16 Part II 30 118. The choice of the Skopski Merak hotel as a detention site warrants comment. The Macedonian authorities have categorically denied that this hotel could have served as a place for detention, considering such a possibility as downright ridiculous. Avramovski said he could “absolutely” rule out the prospect of Mr El-Masri’s being held there: “Look, I can state this very specifically and decisively. The 31 December is New Year’s Eve – that period is a holiday, there are always a lot of guests, many of them tourists, in the hotel to celebrate the New Year. There is not even a theoretical possibility [laughing] that a person could be detained in an open hotel, where there’s a constant flow of people coming and going. There were many guests there at the time, including foreign nationals – it’s a well-known, open hotel with a fine reputation in this city!” In fact, a busy place with this hotel’s features lends itself very well to a clandestine operation, given that a top-floor room facing away from the street was used. 119. Whilst the operation was driven and directed by CIA agents, the Americans kept a very low profile throughout the operation in Macedonia. The CIA transmitted to UBK the questions to ask the suspect, without ever taking part in any interrogation. 120. Several of our interviewees told us – with varying degrees of knowledge – that German intelligence was informed of the fact that Mr El-Masri was in Macedonian custody in the days immediately following the arrest, but not about the operational details. Intelligence material from Germany was added to the dossier from which questions were later asked, both in Macedonia and in Afghanistan, by interrogators of various nationalities. 121. According to our insider sources in the intelligence community, whom we consider serious and well-informed, approximately 20 officials were involved overall on the Macedonian side, including “four or five” politically responsible persons in Government. Three teams of three agents rotated in the task of guarding and surveillance. Technicians and analysts helped to compile the record of the operation, which was a running log rather than a cumulative written report. An operational commander and a deputy marshaled the Macedonian agents and took responsibility for reporting to their liaisons in the CIA. 122. The period for which the Macedonians held Mr El-Masri in advance of his rendition – 23 days – was abnormally long for any operation involving the CIA. Partner agencies and CIA officials alike prefer to keep the time between the initial arrest and the transfer to a CIA detention centre as short as 102 possible . 123. The delay in this case appears to have been caused by logistical reasons, in particular related to the availability of an aircraft. A flight on an unusual route, from Skopje into the Middle East, had to be incorporated into an existing schedule for that month, which, as established above in the description of the newly-discovered rendition circuit, included other detainee transfers. 102 See, for example, Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center, interview carried out by the Rapporteur’s representative, supra note 19. 31 AS/Jur (2006) 16 Part II 124. According to further eye-witness accounts from persons in the civil aviation sector, who described the presence and movements of the suspect rendition plane at Skopje airport that evening, the aircraft thought to have taken Mr El-Masri on board did not follow regular procedures. The manner in which the plane registered with ground staff and paid its ‘route charge’ fees was highly unusual – as the Ministry of Interior himself confirmed, no passengers even left the plane to enter the terminal building and thus cross officially onto Macedonian territory. Instead the plane taxied into position at the far end of the runway, more than a kilometer from the terminal. A detail of armed Macedonian security police formed a lookout nearby, under strict instructions to face away from the plane itself. Asked whether such a measure was conventional for foreign aircraft, Minister of Interior Mihajlovski answered: “No, no. Not at all. The plane is not Macedonian territory; if Spain sends us a plane, it’s the territory of Spain. If there’s a bomb on board we must come inside; but otherwise it’s like a ship, a diplomatic territory”. 125. All these factual elements indicate that the CIA carried out a “rendition” of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same ‘rendition circuit’. The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA’s systematic ’rendition methodology’ described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the “spider’s web”. 126. All the indications are that the Macedonian authorities have decided to deny their part in the abduction of El-Masri, admitting only what has already been clearly proven and trying to conceal the rest. It is regrettable that the will is lacking to perform a true inquiry and that Parliament has not shown the initiative to take up the issue (as the German Bundestag has done in the same case). To this must be added the further accusations of the Macedonian Helsinki Committee for Human Rights. According to reports produced by this NGO, suspects were and still are interrogated and sometimes imprisoned 103 and ill-treated for several days, outside the normal arrest and custody system , specifically in the ‘apartments’ that had been widely used by the previous regime. 127. It is worth repeating that the analysis of all facts concerning this case pleads in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning given to it by the case-law of the United Nations Committee against Torture. In addition, numerous indications support the conclusion that German services participated in a manner that still remains to be established precisely (not excluding the fact that the same services were in the end instrumental in El-Masri’s release; the latter told me that he 104 considered ‘Sam’ as his guardian angel, a kind of ‘life insurance’) . 103 My representative who travelled to Macedonia was able to see former “secret apartments”, which are now closely supervised by NGOs defending human rights. 104 In a recent development, the BND was forced to admit that one of its agents had indeed heard about El-Masri’s detention at the hands of the Macedonian services and his hand-over to the Americans as early as in January 2004 in a civil service canteen in Skopje (see Spiegel-Online of 31 May and 1 June 2006). The German Minister of the Interior tried to play down the importance of this revelation by calling it a mere breakdown of communications, as the higher echelons of the BND had not been informed. Nonetheless it is interesting to note that the truthfulness of the content of this conversation was never called into question. AS/Jur (2006) 16 Part II 32 128. The detailed information with which El-Masri was confronted during his interrogations in Skopje and in Afghanistan included details of his private life in Neu-Ulm. It is hard to imagine that such information could have been obtained by foreign services without help from their German counterparts. For example, the interrogators in Afghanistan knew that El-Masri had met a certain Reda 105 Seyam at the Multikulturhaus and had agreed to get a car which Seyam had just bought with his help registered in the name of El-Masri’s wife in order to save on the cost of insurance. El-Masri assured me that he had shared this information only with Seyam and his wife. In addition, the same interrogators confronted him with bank details of money transfers between his bank in Neu-Ulm and 106 an account in Norway . Such bank details are not normally accessible to foreign services. 129. In my opinion, this detailed knowledge of Mr El-Masri’s –real – life also rules out the theory 107 that Mr El-Masri was the victim of mere mistaken identity , being confused with a person of the same (or similar) name, whose name appeared in the American Congress report on the 9 September 108 attacks as having travelled by train in Germany together with members of the “Hamburg cell” of the 109 terrorists of 11 September, including one of the murderous pilots, Muhammad Atta . 130. As regards the identity of “Sam”, who came and interrogated Mr El-Masri in Afghanistan and accompanied him back on the return flight to Europe, speaking German with a a Northern accent, Mr El-Masri remains convinced that this is Mr Lehmann, an agent of the German Bundeskriminalamt. He had identified him with ‘100%’ certainty on photographs and a videotape, and with ‘90%‘ certainty at a 110 surprise police lineup on 22 February 2006 . 105 According to a German source, Mr Seyam, a German national of Indonesian origin, had returned in an unbelievable manner from a stay in that country. He had allegedly been arrested by the Indonesian authorities who suspected him of involvement in the Bali bombing. He had been released for lack of evidence, and taken back to Germany by German agents, who had been sent in order to prevent Mr Seyam being “handed over” to the Americans, who were apparently already waiting. Mr Seyam then allegedly went to Neu-Ulm at the instigation of his German “rescuers”, who recommended that he go to the Multikulturhaus. The latter, according to the source, was under observation by both the Baden-Württemberg services (who had “planted” an informer there in the person of Dr Yousif, an Islamic preacher at the centre and an old acquaintance of Mr Seyam) and those of neighbouring Bavaria who – not knowing that Yousif was working for Baden-Württemberg – regarded him as a ’preacher of hate’. It was in this Islamic cultural centre frequented by Mr El-Masri that the latter came to know Mr Seyam (against whom a judicial investigation had also been opened in Germany, and closed shortly afterwards for lack of evidence). The two men, both looking for housing for their large families, became friends. 106 According to Mr El Hasri, these were money transfers relating to Norwegian customers in connection with his car sales activity. 107 This appears to be the argument of the German government, in the context of the talks between Federal Chancellor Angela Merkel and American Secretary of State Condoleezza Rice (cf. the link to the record of the joint press conference by Mrs Merkel and Mrs Rice on 6 December 2005 [http://www.state.gov/secretary/rm/2005/57672;htm]. Mrs Merkel confirmed that she had spoken to Mrs Rice about the El-Masri case and said that the American government, the American administration, had admitted that the man had been taken by mistake and that the American administration did not deny in principle that this had occurred). 108 Page 165. 109 Mr El Masri stated in our talks with him that he had not even been questioned about this train journey mentioned in the report on 11 September. In his written deposition to the Virginia court (Declaration of Khaled ElMasri in support of plaintiff’s opposition to the United States’ motion to dismiss […] dated 6 April 2006, p. 13), he said that he was interrogated in Afghanistan also about his alleged association with important terrorists such as Muhammad Atta, Ramzi Bin Al-Shibh and other presumed extremists based in Germany. 110 To the surprise of El-Masri and his lawyer, Mr Gnjidic, the prosecutor’s office immediately announced to the press that the identification of “Sam” had failed. Subsequently the magazine “Stern” unearthed a CIA agent of German origin, Thomas V., who spoke German with the “north German” accent detected in “Sam” by El-Masri, 110 who had been posted in 2000 to the United States Consulate General in Hamburg and who might be “Sam” . The Munich prosecutor in charge of the case, Mr Hofmann, now rules out the possibility of “Sam” being the same person as the federal agent Lehmann, believing that it is now almost fully established that he was present at the Bundeskriminalamt office in Berlin throughout May 2004. But Mr El-Masri and his German lawyer Gnjidic remain convinced that “Sam” is indeed Lehmann, and that the Thomas V. trail was intended mainly to exonerate the German services. 33 AS/Jur (2006) 16 Part II 131. Mr El-Masri has also been the victim of a defamatory campaign. The press service of the Baden-Württemberg Ministry of the Interior had indicated that El-Masri was a member of “Al Tawid”, implying “Al Tawid al Jihad”, a group belonging to Al Quaida and headed by Abu Musab al-Zarkawi. According to Mr Gnjidic, the confusion was deliberate: El-Masri did belong to a militant anti-Syrian party (a nationalist party of the left also including Islamist elements) called “Al Tawid”, founded in 1982 and wound up in 1985 after the Syrian invasion. Whereas certain members were captured by the Syrians, El-Masri fled and sought political asylum in Germany, for precisely that reason. That group allegedly had absolutely nothing in common (except part of the name, which means “all-powerful god”) with the terrorist group headed by al-Zarkawi. Mr El-Masri was again faced with this confusion at his hearing by the Temporary Committee of the European Parliament, where at least one EP deputy asked him to what other terrorist groups he belonged. As Mr El-Masri was still in a fragile psychological state, I find it particularly odious that he was also the subject of an article, with a 111 photograph, in the local press once again insinuating his links with terrorist circles without any evidence whatsoever. He told us that he now hardly dares to leave his home. 132. The case of Khaled El-Masri is exemplary. Some aspects still require further investigation and it is for that reason that inquiries are ongoing in the Bundestag’s Committee of Inquiry and by the Munich prosecutors. The story of El-Masri is the dramatic story of a person who is evidently innocent – or at least against whom not the slightest accusation could ever be made - who has been through a real nightmare in the CIA’s ’spider’s web’, merely because of a supposed friendship with a person suspected at some point in time to maintain contacts with terrorist groups. El-Masri is still waiting for the truth to be established, and for an excuse. His application to a court in the United States has been rejected, at least in the first instance: not because it seemed unfounded, but because the Government brought to bear so-called ‘national security’ and ‘state secrecy’ interests. This speaks for itself. 3.2. "The Algerian Six" 112 133. Six Bosnians of Algerian origin – four Bosnian citizens and two longstanding residents were arrested in October 2001 by order of the Supreme Court of the Federation of Bosnia and Herzegovina and detained on remand. They were suspected of having planned bomb attacks on the American and British embassies. 134. The investigation, between October 2001 and January 2002, did not reveal any evidence linking these men to a terrorist plot. On 17 January 2002, the office of the federal prosecutor informed the investigating magistrate at the supreme court that he had no reason to keep the men in custody any longer. On that same day at about 3pm the investigating magistrate ordered the immediate release of the six men. 135. Again on the same day, at about 5pm, the Human Rights Chamber of Bosnia and 113 Herzegovina issued an interim order, following an application lodged by four of the men . The order, which had statutory force in Bosnia according to the Dayton peace accords, required the Government of Bosnia and Herzegovina to take all necessary steps to prevent the applicants being forcibly deported from Bosnia and Herzegovina. 111 See Neu Ulmer Zeitug, Islamisten zieht es nach Ulm; Multi-Kultur-Leute treffen sich jetzt im Donautal – Welche Rolle spielt Khaled El-Masri? 15 March 2006. 112 Mustafa Ait Idir, Hadz Boudella, Lakhdar Boumediene, Saber Lahmar and Mohammed Nechle and Belkacem Bensayah 113 cf. Boudella, Boumediene, Nechle and Lahmar v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Human Rights Chamber for Bosnia and Herzegovina, cases nos. CH/02/8679, CH/02/8690, CH/O2/8691, Order for Provisional Measures and on the Organization of the Proceedings, 17 January 2001. AS/Jur (2006) 16 Part II 34 136. However, on the evening of 17 January 2002 the six men were arrested by Bosnian police officers, and handed over to members of the United States military forces stationed in Bosnia and Herzegovina on the morning of 18 January. This is recorded as an established fact in a judgment of 114 the Human Rights Chamber for Bosnia and Herzegovina of 4 April 2003 . The Chamber refers to a document of the Council of Ministers dated 4 February 2002, according to which members of the police forces of the Federation under the authority of the Federal Minister of the Interior and of forces of the Minister of the Interior of the Canton of Sarajevo handed the applicant over to the American forces at the Butmir base on 18 January at 6am. 115 137. According to the victims’ evidence, transmitted by their lawyers , the six victims were handcuffed in uncomfortable positions and hooded so that they could not see the aircraft which they were forced to board, at a given time on 18 or 19 January 2002. According to the lawyers, official documents obtained in the course of the judicial proceedings in progress show that two aircraft were 116 assigned to this operation , and that the aircraft which the six men were made to board was at the Tuzla military base. After a flight of several hours, the aircraft landed and the six men were made to 117 disembark, at a place which they describe as very cold . During the flights the men were beaten and tied up in uncomfortable positions. At the stopover – probably Incirlik – they were joined by other detainees, some of whom said they came from Afghanistan. The human cargo arrived at Guantanamo on 20 January 2002. 138. The six men have been prisoners at Guantanamo until the present time, that is to say for over five years. 139. The illegal nature of these detentions was recognised by the Human Rights Chamber for 118 Bosnia . In the three decisions, the Chamber invited the Government of Bosnia to assist the six men, inter alia by recourse to diplomatic and judicial means. In the decision of 4 April 2003 concerning Mr Ait Idir, the Chamber even ordered the Government of Bosnia to take all possible steps to secure the 119 release of the applicant and his return home . 140. The Bosnian government has recognised its legal obligations but not complied with them. 120 141. In the Council of Ministers document cited by the Human Rights Chamber , the Government of Bosnia and Herzegovina admitted that the six men had been “handed over” to the American forces 121 by the Bosnian authorities without extradition formalities being observed . 142. On 21 April 2004, the human rights committee of the Parliament of Bosnia and Herzegovina exhorted the Bosnian executive to execute the decision of the Human Rights Chamber and start proceedings with the United States for the repatriation of the detainees. Its report was endorsed by the parliament chamber on 11 May 2004. 114 Case no. CH/O2/9499, Bekasem Bensayah against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina (cf. in particular paras. 50 et 164). 115 The international law firm Wilmer Hale, which supplied written documentation and oral testimony (Mrs Karin Matussek on 11 April 2006 to our committee, and Mr Steven Oleskey to the temporary committee of the European Parliament, on 25 April 2006. My representative also met with four Wilmer Hale attorneys working on this case at their offices in Boston, USA in May 2006. I am grateful to this firm for its outstanding efforts. 116 Two C-130 cargo planes bearing serial numbers UJM166301019 and UQU09Z10L019, one of which also used the American base at Ramstein in Germany for the purposes of this operation. The documents in question also show that the aircraft transporting the six men stopped over at the American base at Incirlik in Turkey. 117 The six men think it might have been in Turkey, on the basis of what little they were able to see and hear. 118 Afore-mentioned judgment of 4 April 2003 concerning Mr Bensayah and Mr Ait Idir; in a judgment of 11 October 2002, the Chamber had already decided the cases of the other four men (Boudellaa, Boumediene, Nechle and Lahmar against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, cases nos. CH/02/8679, CH/02/8689, CH/02/8690, CH02/8691, decision of 11 October 2002). 119 Idem, para. 168. 120 Note 115 above. 121 The Human Rights Chamber, in the above-mentioned Bensayah judgment (note 112), explains in a relevant manner that the “handing over” of the applicant can in no way be deemed to constitute extradition. In particular, the note dated 17 January 2002 from the US embassy cannot be regarded as a request for extradition by the United States. In that note, the US embassy in Sarajevo informs the Government of Bosnia and Herzegovina that it is willing to take charge of the six Algerian citizens in question and offers to arrange for the physical transfer of these persons at a time and place suitable to both parties. 35 AS/Jur (2006) 16 Part II 143. On 11 March 2005, the Minister of Justice confirmed that the Bosnian government had sent a letter to the American government requesting the return of the six men. 144. On 21 June 2005, the Bosnian prime minister Mr Adnan Terzic confirmed before the 122 the importance of this case as an indicator of Parliamentary Assembly of the Council of Europe democratic progress in Bosnia, and declared his willingness to identify the best way of ensuring the release of the six Bosnian citizens and former residents from Guantanamo, in accordance with Parliamentary Assembly Resolution 1433 (2005). 145. Lastly, on 16 September 2005, the Bosnian parliament adopted a resolution inviting the Council of Ministers of Bosnia and Herzegovina to make contact with the American government in order to solve the problem of the six men as rapidly as possible. 146. It is all the more surprising that, in spite of all these promising declarations, including that of the prime minister to the Parliamentary Assembly of the Council of Europe, there has been no government initiative aimed at the release of the six men. 123 147. According to their lawyers , the American government has declared on several occasions that it is willing to enter into bilateral discussions with the governments of countries whose citizens are detained at Guantanamo in order to arrange their repatriation, subject to adequate security conditions. In the case of the six men in question, such measures would be unnecessary anyway, since the charges against them have already been investigated by the competent authorities and those investigations have shown that they are innocent. Nonetheless, the Bosnian government has 124 apparently made no credible move to initiate negotiations in that direction . 148. The argument of the innocence of the men in question – although in any event it is presumed, and in no sense a condition of suspects’ being treated in accordance with legal rules – has just been strengthened by a report drawn up by the German military. This report, produced in decidedly unusual 125 126 circumstances , which also aroused the interest of the German media and parliamentarians , concluded inter alia that the reasons for arresting the six men were “highly dubious”. The six men’s lawyers sent me a copy of that report, which would have been erased from the German military archives and would never have been received by the German embassy in Sarajevo to which the report 127 would have been addressed . 122 In reply to a question from our former colleague Kevin McNamara, following Resolution 1433 (2005) adopted by the Parliamentary Assembly on 26 April 2005, calling on all Council of Europe member states, including Bosnia and Herzegovina, to protect the rights of their citizens or residents detained at Guantanamo and get them released and repatriated. 123 Memorandum of 12 April 2006, addressed to the Temporary Committee of the European Parliament. 124 See Matthew A. Reynolds, Acting Assistant Secretary, Legislative Affairs, US Department of State, sent a letter to Senator James M. Jeffords in his response to an information request (copy on file with the Rapporteur), 15 June 2005: "Although the Government of Bosnia and Herzegovina has made several inquiries regarding the condition of each detainee and has asked for their release, it has not indicated that it is prepared or willing to accept responsibility for them upon transfer." 125 German military personnel posed as journalists in order to conduct an interview with Mr Bensayah’s wife, Mrs Anela Kobilica, on 17 June 2003. The report subsequently drawn up by the German military concluded that the grounds on which the six men were arrested and deported were “highly dubious” and that documents and that documents examined gave rise to the suspicion that at least some of the six had been “subjected to an injustice”. 126 See, for example, http://www.tagesschau.de/aktuell/meldungen/0,1185,OID5072374,00.html. Journalists’ associations protested vehemently at methods of investigation that involved intelligence agents masquerading as journalists, as this exposed real journalists to suspicion and possible reprisals. 127 From a confidential source, I received a copy of this report, which, it was claimed, was deleted from the German military archives and never received by the German embassy in Sarajevo, to which it was said originally to have been addressed. See Supplementary Intelligence Report, 16 July 2003 (copy on file with the Rapporteur). AS/Jur (2006) 16 Part II 36 149. In my opinion, the case of the “Bosnian six” is another well documented example of European citizens and residents being abducted by the American authorities with the active collusion of the authorities of a Council of Europe member state. The government of Bosnia and Herzegovina has the merit of no longer denying the fact that it handed the six men over to the American forces. According 128 to information I have received , the Bosnian authorities acted under extraordinary pressure from the American embassy in Sarajevo, but the fact remains that they acted in violation of clear decisions by the Supreme Court and the Human Rights Chamber ordering the release of these men. If the damage to the good human rights reputation of Bosnia and Herzegovina is to be repaired, official recognition of the facts is an important step in the right direction, but it must be followed up as swiftly as possible by credible diplomatic intervention vis-à-vis the American government in order to secure the rapid repatriation of these six men, who have now been festering in Guantanamo Bay for over five years. 3.3. Ahmed Agiza and Mohammed Alzery (El Zari) 150. The case of the two Egyptian asylum-seekers “handed over” by the Swedish authorities to American agents who took them to Egypt, where they were tortured in spite of diplomatic assurances given to Sweden, is another very well documented case. It led to Sweden’s being condemned by the 129 United Nations Committee against Torture (UN-CAT) . The Swedish authorities were also criticised 130 for having attempted to conceal the facts from UN-CAT . 131 151. The affair was brought to public notice mainly by the “Kalla Fakta” television programme, and research by the Swedish investigative journalists blew open the secret system of CIA aircraft transporting clandestine prisoners in the “war against terrorism”. The aircraft used for this operation – 132 a Gulfstream, number N379P – has become one of the most notorious “rendition” aircraft . 152. The behaviour of the Swedish secret police (Säpo) gave rise to a detailed investigation by the 133 Swedish parliamentary ombudsman, Mats Melin . The judicial authorities also examined the case and concluded that there were no grounds for a criminal prosecution against either the Swedish agents involved, or the pilot of the aircraft, or other American agents who were part of the team 134 responsible for transporting Mr Agiza and Mr Alzery to Egypt . 128 See for example the Wilmer Hale memorandum of 12 April 2006, at page 3, supported a weath of documents given to us by Wilmer Hale, copies of which are all on file with the Rapporteur. 129 United Nations Committee against Torture, decision of 20 May 2005, CAT/C/34/D/233/2003; see also United Nations Committee against Torture, Conclusions and recommendations of the Committee against Torture: Sweden. 06/06/2002, CAT/C/CR/28/6 (Concluding Observations/Comments), and the Swedish reply (Comments by the Government of Sweden on the Concluding Observations of the Human Rights Committee (CCPR/CO/74/SWE) of 14 May 2003. In that reply (para. 16), the Swedish government said that in its opinion, the “assurances” given by Egypt were being and would be fully respected, and that the government had received no information such as to cast doubt on that conclusion. 130 See “Kalla Fakta” (note*), page 10 : the Swedish reply to the final observations (note* above) seems to be contradicted by the first report of the Swedish Ambassador in Egypt, according to which Mr Agiza had spoken to him about the abuse and violence which he and Mr Alzery had suffered. According to “Kalla Fakta”, the Swedish government had filed this information and refused to hand it to the United Nations. In its decision of 20 May 2005 (note* above, para. 13.10), UN-CAT notes that Sweden has not fulfilled its obligation to co-operate fully with the Committee, and has not made all the relevant and necessary information for resolving the case available to the Committee. 131 Translation of the title of the programme: “Cold facts”; a transcript of the broadcast of 22 November 2004 was provided to me by TV4. 132 Kalla Fakta has given an account of its research into the owner of N379P, Premier Executive Transport Services. Posing as potential clients, journalists satisfied themselves as to the governmental, clandestine nature of this firm (cf. transcript, note* above, pages 4-5). 133 See Mats Melin, Parliamentary Ombudsman (Sweden), A review of the enforcement by the Security Police of a Government decision to expel two Egyptian citizens, Adjudication No. 2169-2004, dated 22 March 2005. (translated copy on file with Rapporters). 134 Ibid, at page 3. 37 AS/Jur (2006) 16 Part II 153. In short, the facts occurred in the following manner: on 18 December 2001, Mr Agiza and Mr Alzery, Egyptian citizens seeking asylum in Sweden, were the subject of a decision dismissing the asylum application and ordering their deportation on grounds of security, taken in the framework of a special procedure at ministerial level. In order to ensure that this decision could be executed that same day, the Swedish authorities accepted an American offer to place at their disposal an aircraft 135 which enjoyed special overflight authorisations . Following their arrest by the Swedish police, the two men were taken to Bromma airport where they were subjected, with Swedish agreement, to a “security check” by hooded American agents. 154. The account of this “check” is especially interesting, as it corresponds in detail to the account given independently by other victims of “rendition”, including Mr El-Masri. The procedure adopted by 136 the American team, described in this case by the Swedish police officers present at the scene , was evidently well rehearsed: the agents communicated with each other by gestures, not words. Acting very quickly, the agents cut Agiza’s and Alzery’s clothes off them using scissors, dressed them in tracksuits, examined every bodily aperture and hair minutely, handcuffed them and shackled their feet, and walked them to the aircraft barefoot. 155. The ombudsman condemns as degrading the way in which the detainees were treated from the time when they were taken charge of by the American agents until the end of the operation when the two men were handed to the Egyptian authorities. He does not consider that it constitutes torture for the purposes of Article 3 of the European Convention on Human Rights, but asks the question – though he does not answer it – whether the execution of the deportation order nonetheless violates Article 3. In any event, he finds that the operation was carried out in an inhuman and therefore 137 unacceptable manner . 156. According to the ombudsman’s findings, the Swedish officers, who were poorly led, lost control of the operation from the start of the American team’s intervention. They ought to have intervened to put an end to the degrading treatment of the detainees, which was not justified on security grounds since the Swedish police had already carried out a body search on the detainees at the time of arrest. 157. Prior to deportation of the two men to Egypt, Sweden sought and obtained ‘diplomatic assurances’ that they would not be subjected to treatment contrary to the anti-torture convention and would have fair trials. The ’assurances’ were even backed up by a monitoring mechanism, in particular regular prison visits by the Swedish Ambassador and participation by Swedish observers at the trial. 158. Developments in the case show that these ’assurances’ were not honoured. Mr Alzery’s 138 139 lawyer, Kjell Jonsson , states that extremely grave acts of torture took place . Although Mr Alzery was released from prison in October 2003, he is not allowed to leave his village without permission from the authorities. Mr Agiza was sentenced to 25 years imprisonment by a military court in a trial from which the Swedish observers were excluded for the first two days out of a total of four. Despite the fact that Mr Agiza complained of torture during his detention, which lasted over two years after his forced return to Egypt, and despite the fact that the prison doctor’s report did record physical injuries sustained in prison, the military court did not act on the defence request for an independent medical 140 examination . 135 An internal Säpo report seems to indicate that the American involvement was approved by the Ministry of Foreign Affairs; persons who attended the meeting with the minister and were questioned by the ombudsman have no recollection that this was mentioned. 136 Owing to lack of space in the room made available to the Americans, the Swedish police were not able to observe everything. In particular, they did not see that (tranquillising) suppositories were administered and that diapers were affixed, as the detainees maintain, and as was done in other “renditions”. See the earlier section of this report on the ‘Human Impact of Renditions and Secret Detentions’. 137 See the report by Mats Melin, supra note 134, page 23. 138 Mr Jonsson testified before the Temporary Committee of the European Parliament on 23 March 2005; he spoke at great length with a member of my team during his visit to Brussels. 139 This was electric shock torture, with electrodes fixed to the most sensitive parts of the body, in the presence of a doctor who assesses what electrical charge the prisoner can survive. In order to prevent marks, the places affected are treated specially at the end of each torture session. 140 A representative of Human Rights Watch observed the entire trial ; the observed violations of the rights of the defence are listed in a HRW communiqué of 5 May 2005 (Sweden Implicated in Egypt’s abuse of Suspected Militant – Egypt violated diplomatic promises of fair trial and no torture for terrorism suspect (http://hrw.org/english/docs/2004/05/05/egypt8530_txt.htm). AS/Jur (2006) 16 Part II 38 159. The UN-CAT decision shows that the ’diplomatic assurances’, even with follow-up clauses 141 attached, are not such as to prevent the risk of torture . The deporting state therefore still bears responsibility. 160. All things considered, the Swedish case of Agiza and Alzery cannot be classed as “abduction” by the CIA. The two men were the subject of a Swedish deportation procedure following dismissal of the asylum application; that procedure was severely criticised by UN-CAT, and rightly so: the immediate execution of the decision deprived the two men of any possibility of appeal, including under the United Nations Convention against Torture – an appeal which moreover would have stood a good chance of success, in view of the risk of torture run by them in Egypt. Other criticisms directed at Sweden are the ’slack’ implementation of the follow-up clause relating to the assurances obtained 142 prior to extradition , and above all the fact that Sweden did not send UN-CAT all the relevant 143 information . On the other hand, with regard to the ill-treatment of the prisoners at Bromma airport and in the aircraft, the reproach is aimed primarily at the United States. I share Mats Melin’s view that such degrading and humiliating treatment is unacceptable. 161. Nonetheless, in my opinion it is for Sweden to clarify further the reasons and responsibilities: how was it that the Swedish officers present on the scene allowed their American counterparts to do as they wished, letting them take control of this operation while still on Swedish soil? 3.4. Abu Omar 162. At midday on 17 June 2003, Hassam Osama Mustafa Nasr, known as Abu Omar, an Egyptian citizen, was abducted in the middle of Milan. Thanks to an outstanding and tenacious investigation by the Milan judiciary and the DIGOS police services, Abu Omar’s is undoubtedly one of the best-known 144 and best-documented cases of “extraordinary rendition” . Via the military airbases at Aviano (Italy) and Ramstein (Germany), Abu Omar was flown to Egypt, where he was tortured before being released and re-arrested. To my knowledge, no proceedings were brought against Abu Omar in Egypt. The Italian judicial investigation established beyond all reasonable doubt that the operation was carried out by the CIA (which has not issued any denials). The Italian investigators likewise established that the presumed leader of the abduction operation – who had also worked as the American consul in Milan – was in Egypt for two weeks immediately after Abu Omar was handed over to the Egyptian authorities. It may safely be inferred that he contributed, in one way or another, to Abu Omar’s interrogation. The proceedings instituted in Milan concern 25 American agents, against 22 of whom the Italian judicial authorities have issued arrest warrants. Abu Omar was a political refugee. Suspected of Islamic militancy, he had been under surveillance by the Milan police and judicial authorities. As a result of the surveillance operation, the Italian police were probably on the verge of uncovering an activist network operating in northern Italy. Abu Omar’s abduction, as the Milan judicial authorities expressly point out, sabotaged the Italian surveillance operation and thereby dealt a blow to the fight against terrorism. Is it conceivable or possible that an operation of that kind, with deployment of resources on that scale in a friendly country that was an ally (being a member of the coalition in Iraq), was carried out without the national authorities – or at least Italian opposite numbers – being informed? The Italian Government has denied having been informed, and the head of the SISMI, General Pollari, expressly denied any knowledge of the CIA operation in his appearance before the TDIP. There has recently been a significant new development in the investigation by the 141 Diplomatic assurances are not the focus of my mandate; here, nevertheless, are two very pertinent reports on the subject: Amnesty International, ‘Diplomatic Assurances’ – no protection against torture or ill-treatment, report No. ACT 40/021/2005, 1 December 2005; and Human Rights Watch, Still at Risk: ‘Diplomatic Assurances No Safeguard against Torture, Report No. 17, Vol. 3D, 17 April 2005. 142 See the afore-mentioned HRW communiqué of 5 May 2005: the first visit Mr Agiza received from a Swedish diplomat was only five weeks after his arrival in Egypt, despite the fact that experience shows that torture and illtreatment take place during the first days of detention. Furthermore, the Swedish diplomats, who were not trained to recognise signs of torture, apparently gave several days’ notice of their visits, and all conversations were apparently monitored by the Egyptian warders. 143 Sweden justifies the fact that it did not send its ambassador’s first visit report, in which Mr Alzery’s complaints of ill-treatment are recorded, by fears of reprisals against the detainees, given doubts about respect for confidentiality within UN-CAT. But in any case those complaints were known to the Egyptian authorities, who were represented during the ambassador’s visit. 144 I met the prosecutor heading the investigation, Armando Spataro, and was able to obtain as full information as confidentiality and procedural requirements permitted. The Abu Omar case is likewise described in the aforementioned book by Guido Olimpio, Operazione Hotel California, Feltrinelli, October 2005. The main documents in the judicial investigation have been collected and reproduced in a book by Guido Ruotolo and Vincenza Vasile: Milano-Cairo. Viaggio senza ritorno. L’iman rapito in Italia dalla CIA, Tullio Pironti Editore, 2005. 39 AS/Jur (2006) 16 Part II Milan prosecuting authorities, however: an agent belonging to an elite Carabinieri unit has admitted taking part in Abu Omar’s abduction as part of an operation co-ordinated by the SISMI, the military 145 intelligence services . The head of SISMI had formally denied any participation of his service in the abduction; he even affirmed that he had only been informed of this episode after the abduction 146 itself . 3.5. Bisher Al-Rawi and Jamil El-Banna 163. This case, which concerns two British permanent residents arrested in Gambia in November 2002 and transferred first to Afghanistan and from there to Guantanamo (where they still are) is an example of (ill-conceived) cooperation between the services of a European country (the British MI5) and the CIA in abducting persons against whom there is no evidence enabling them to be kept in prison lawfully, and whose principal crime is to be on social terms with a leading Islamist against whom the authorities have no evidence either – namely Abu Qatada. 147 164. The information made public to date shows that the abduction of Messrs Al-Rawi and ElBanna was indeed motivated by information – partly erroneous – supplied by MI5. 165. Bisher Al-Rawi and Jamil El-Banna were arrested in Gambia on 8 November 2002. They intended to join Mr Al-Rawi’s brother Wahab, a British citizen, and help him set up a mobile peanut 148 processing plant. The British authorities were well aware of this business trip . On 1 November, Messrs Al-Rawi and El-Banna left on their trip, but did not get very far. At Gatwick airport they were arrested by reason of a suspect item in Mr Al-Rawi’s hand luggage. 166. On the same day, a first telegram from MI5 informed the CIA that the two men had been arrested under the 2000 anti-terrorist act. That telegram contained false information, including the statement that Mr Al-Rawi was an Islamist extremist, and that the search of his luggage had revealed that he was carrying a sort of improvised electronic device which could be used, according to 149 preliminary investigations, as a component of a home-made bomb . 167. The two men spent 48 hours in police custody, until the police decided that the “suspicious device” was nothing other than a battery charger on sale in several electronic goods shops (Dixons, Argos, Maplins). Mr Al-Rawi explained this when he was arrested, but it had to be checked. The conclusion to the charger episode – that it was indeed a ’harmless device’ – was communicated to the Ministry of Foreign Affairs by MI5 in a telegram of 11 November 2002. Unfortunately, there is no evidence that this information was ever conveyed to the CIA. The allegations concerning this ’device’ 150 reappeared in their ’trial’ before the CSRT (Combatant Status Review Tribunal) as ’evidence’ that they were ’enemy combatants’. 145 See Corriere della Sera and La Repubblica of 11 May 2006. Statement of General Pollari at the meeting of the TDIP on 6 March 2006 147 I wish to thank in particular my British colleague Andrew Tyrie, chairman of the House of Commons All-Party Parliamentary Group (APPG) on renditions, who helped to arrange for two members of our committee secretariat to attend an APPG hearing of the brother, wife and lawyers of Mr Al-Rawi and Mr El-Banna; I also thank the two men’s American and British lawyers, Mr Brent Mickum and Ms Gareth Peirce, along with Clive Stafford-Smith, the legal director of REPRIEVE, for the detailed information they provided for my inquiries. 148 Mr El-Banna informed his lawyer that two MI5 agents had come to his home and told him that they knew all about his planned trip. In reply to his question as to whether everything was in order, they said yes and wished him good luck. Mr El-Banna’s wife confirmed this visit at the APPG hearing on 28 March 2006. 149 Telegram of 1 November 2002, made public on 27 March 2006, with other telegrams dated 4, 8 and 11 November and 6 December 2002 ; these documents are normally classified secret, but came into the public domain after being cited on 22 and 23 March 2006 at a public hearing in the Queens Bench Division of the High Court in London, before Lord Justice Latham and Mr Justice Tugendhat. The telegrams were also the subject of the APPG hearing on 27 March 2006. It is clear to the lawyers that not everything is said in the telegrams, which moreover refer to other communications, including telephone calls. 150 See US Department of Defense, unclassified Combatant Status Review Tribunal (CSRT) transcripts disclosed in the matter of El-Banna et al v. Bush, in the US District Court of Columbia (copies of all transcripts on file with the Rapporteur), October 2004. 146 AS/Jur (2006) 16 Part II 40 168. Messrs Al-Rawi and El-Banna returned home on 4 November 2002 and reorganised their trip to Gambia for 8 November. Meanwhile, several telegrams were sent by MI5 to the Americans concerning the two men, informing them that they knew Abu Qatada and that Mr El-Banna was the 151 latter’s ’financier’. It is true that the two men knew Abu Qatada . On the other hand, according to the lawyers, Mr Al-Rawi had helped MI5 to prepare the non-violent arrest of Abu Qatada, and British 152 agents had even thanked him for doing so . 169. On 8 November 2002, the day when the two men flew to Gambia, MI5 sent another telegram giving the flight details, including the departure of the delayed flight and the estimated arrival time. The telegram states that “this message should be read in the light of earlier communications”. In addition, the telegram of 8 November does not mention, as the earlier telegrams do, that this information “must not be used as the basis of overt, covert or executive action”. 170. At Banjul airport, Al-Rawi and El-Banna, accompanied by a collaborator, Mr El Janoudi, met Bisher Al-Rawi’s brother Wahab, who had gone to Gambia one week before the others, and all four were arrested by Gambian agents. They were taken to a house outside Banjul. Mr Janoudi managed to telephone his wife in London, and another brother of Mr Al-Rawi, Numann, went to see his MP, Edward Davey, who informed the Foreign Ministry. 171. During the following days, according to Wahab’s account, American agents were very present, but the detainees never saw a British official despite the fact that they asked to see a consular representative. Wahab stated at the APPG hearing that the CIA and Gambian officials repeatedly alluded to the fact that “it is the British who have told us to arrest you”. Mr El-Banna says he has continually been told the same thing during his subsequent detention at Guantanamo Bay: “My interrogator asked me ‘Why are you so angry at America? It is your Government, Britain, the MI5, who called the CIA and told them that you and Bisher were in The Gambia and to come and get you. 153 Britain gave everything to us. Britain sold you out to the CIA” . 172. On 5 December 2002, after 27 days, Wahab was released and returned to the United Kingdom. Some days afterwards, on a Sunday, Bisher Al-Rawi and Jamil El-Banna were flown to Afghanistan in a military jet with over 40 seats. There were at least 7 or 8 American agents on board, including a woman doctor. Through their lawyers, the two men gave a detailed account of their degrading and humiliating treatment many details of which echo the treatment suffered by other 154 victims of ’renditions’ . 173. At Kabul, they were taken in less than 15 minutes to the prison identified as the ’Dark Prison’. 155 The description of the inhuman detention conditions in this prison , which is an important link in the CIA ’spider’s web’, corresponds in many details to that given by other victims of ’renditions’ who went there. After two weeks in this sinister prison, the two men were transferred to Bagram by helicopter. At Bagram they were imprisoned and ill-treated for a further two months. The American interrogators allegedly offered Mr El-Banna large sums of money in exchange for false witness against Abu Qatada. When these offers failed to produce the expected result, the interrogators allegedly threatened to send him back for a year to the ’Dark Prison’, followed by 5 or 10 years in Cuba, and made shameful threats 156 against his family living in London . 151 At the APPG hearing on 27 March 2006, Mr El-Banna’s wife explained that their “social” relations derived from the fact that the three men had family ties with Jordan. 152 Al-Rawi’s cooperation with MI5 is said also to be the reason for several visits by MI5 agents to Guantanamo. The lawyers presented details of these conversations in public as recounted by their clients (copy in file). MI5 has not officially recognised this cooperation, which Al-Rawi also claimed in his depositions to the CSRT. 153 See El-Banna’s statement to lawyer, supra note 68. 154 They were dressed in diapers, wore hoods without eye-holes, had their ears blocked up, their legs shackled and their hands painfully handcuffed behind their backs, and were denied access to toilets. 155 « Diabolical » loud music round the clock, total absence of light, rotten food, no possibility to wash or use a toilet, uncomfortable handcuffing and leg shackling, cold cell, inadequate clothing, prisoners frequently beaten and trampled on. 156 I prefer not to quote this extremely upsetting testimony. 41 AS/Jur (2006) 16 Part II 174. Finally, the two men were transported to Guantanamo, where they were again subject to inhuman treatment. Mr Al-Rawi says he received many visits from MI5 agents, the first of them in early autumn 2003, and that he was interrogated by ten or so different CIA agents. One of the MI5 agents, he says, even apologised to him. In January 2004, two British agents (“Martin” and “Mathew”) asked him whether he would be willing to work for MI5 again. Mr Al-Rawi replied that he would, provided that this would serve the cause of peace. Several months later, a certain “Alex” with whom Mr Al-Rawi had worked in London came to see him at Guantanamo, accompanied by an attractive female agent. However, at the time of his “trial” before the CSRT the British authorities refused to send to Guantanamo the witnesses he named or simply to confirm his links with MI5, thereby condemning him to continuous detention – detention which continues to this day, having lasted almost four years in all. 175. The families of Messrs Al-Rawi and El-Banna and their lawyers at the London firm Birnberg, Peirce & Partners brought an action to oblige the British government to make repre the United States through diplomatic channels in order to secure the release and repatriation of the two men as soon as possible. According to the latest information, the British government has acted along those lines with regard to Mr Al-Rawi, but not with regard to Mr El-Banna. The judgment at first instance, given in May 2006, dismissed the families’ complaints. 176. In view of these highly disturbing facts, I find that the British authorities must shed light on this case in full. I welcome the fact that our colleague Andrew Tyrie has devoted much energy to this matter in order for truth to be established in this disturbing case. Meanwhile, the United Kingdom, even if it has no recognised legal obligation, must make good the consequences of the apparently very imprecise communication between MI5 and the American services. There is indeed little doubt that the arrest of the two men was largely triggered or at least influenced by the messages of November 2002, only part of which (the afore-mentioned telegrams) is public knowledge. 3.6. Maher Arar 177. Maher Arar, a Canadian citizen of Syrian origin, came to testify in public before the temporary 157 committee of the European Parliament . During a stopover on return from holiday in Tunisia, in September 2002, he was arrested at JFK airport in New York by American agents. After being detained in a high-security prison and interrogated for two weeks by the New York police, the FBI and the American immigration service, he was allegedly transported from New Jersey airport via 158 Washington, Rome and Amman to a prison belonging to Syrian military intelligence . He spent more than ten months there, during which he says he was tortured, abused and forced to make false confessions. During his stay in Syria, he says, he also heard the voice of a German prisoner being tortured. After a tenacious campaign by his wife, Mr Arar was able to have irregular contacts with Canadian diplomats in post in Syria. He says he has never been the subject of criminal charges in any country. Mr Arar stills suffers from a post-traumatic stress syndrome following his terrible experience. 178. The American Government considers the ‘rendition’ of Arar as a legitimate procedure in 159 conformity with its immigration rules . 157 Accompanied by his lawyer, he also had exhaustive talks with a member of the committee secretariat; This journey was retraced by a British investigative journalist, whose research is corroborated by data obtained from our Eurocontrol and national air traffic control authorities investigation. See Flight logs related to the rendition of Maher Arar, at Appendix 6 of this report. 159 See Bellinger, Briefing to European Delegation, supra note XX: "With respect to Maher Arar, I can’t comment on his case either. But I do know his case has gotten added to the list of so-called renditions, when in fact his removal was dealt with as an immigration matter, which is what all countries do when they find someone in their country and they don' t want to prosecute them inside their countries. So he was expelled from the United States by order of an Immigration Court. I think that' s a different situation. So this is not the same situation as these other cases." 158 AS/Jur (2006) 16 Part II 42 179. According to Mr Arar, the agents on board the aircraft never identified themselves, but he heard that they belonged to a “special removal unit”. In this specific case, the handing over of Mr Arar to Syria seems to be a well established example of ‘outsourcing of torture’, a practice mentioned 160 publicly by certain American officials . 180. The question which interests us more particularly, in view of our terms of reference, is to whether and if so, to what extent the European states concerned (in particular Italy and Greece) were 161 aware of the illegal transport of Mr Arar and perhaps even gave logistic support . 181. Another question is the role of the Canadian authorities in the matter. This question is the 162 subject of a very thorough investigation by a special commission . 163 182. The initial report of the investigator Stephen J. Toope was published on 14 October 2005 . Mr Toope, who has lengthy experience of working with torture victims, has convincingly established the truthfulness of Mr Arar’s depositions, which he has compared with those of other former Syrian prisoners held in the same prison run by Syrian military intelligence (Far Falestin). His report, which also mentions the findings of specialist doctors whom Mr Arar consulted on his return, describes in detail Mr Arar’s treatment in Syria, which he unhesitatingly regards as torture within the meaning of the United Nations Convention against Torture. However, that report does not cover the part played by the Canadian authorities in the matter. This point will be covered in the final report of the Commission, 164 which is expected to be published by the end of the summer of 2006 . It is thus premature to draw 165 any conclusions at this stage . 183. The working methods of this commission, a genuine commission of inquiry with real powers of investigation, empowered to take cognisance of classified information, strike me as very interesting. However, Mr Paul Cavalluzo, Mr Arar’s principal lawyer on the Commission, deplores the tendency of the Canadian authorities to hide behind ’official secrets' . 160 See the quotations reproduced in my information report of 22 January 2006 See Flight logs related to the rendition of Maher Arar, at Appendix 6 of this report. 162 Commission of inquiry into the action of Canadian officials in relation to Maher Arar, set up on 5 February 2004 « to throw light on the actions of the Canadian authorities concerning the deportation and detention of Maher Arar ». The commissioner heading the inquiry is the Honourable Dennis R. O’Connor, deputy chief judge of Ontario. 163 Available on the commission’s website : www.commissionarar.ca; the reports of experts/witnesses, the rules of procedure and – albeit greatly truncated – summaries of the hearings in camera are among other items also published on this website. 164 See the communiqué of 11 April 2006, indicating that the delay (five months after the date originally planned) is “largely attributable to the process that was adopted to analyse reports having regard to the government’s requests designed to protect certain information on grounds of confidentiality in connection with national security (CLSN)”. The communiqué describes in detail the procedures followed where the government invokes CLSN, disputes on the matter being settled in the last resort by the federal court. 165 See the ‘summaries of hearings in camera’ (note* above), in particular para. 12 pp and 33. Given the provisional and incomplete nature of these summaries, I prefer not to comment in greater detail. 161 AS/Jur (2006) 16 Part II 43 3.7. Muhammad Bashmila and Salah Ali Qaru 166 184. The cases of Mr Bashmila and Mr Ali Qaru are described in an Amnesty International report based on inquiries made on the spot and intensive discussions with the victims. It is likely that they owe their recent release to Amnesty' s commitment. The two men, who have never been accused of the slightest terrorist crimes, were arrested in Jordan and disappeared, as far as their families were 167 concerned, into the American ‘spider' s web’ in October 2003 . According to AI’s investigations, they were held in at least four secret American detention centres, probably in three different countries. The former detainees themselves say that they spent time in Djibouti, Afghanistan and - of particular interest to us - "somewhere in eastern Europe". The exact location of the place where they spent the final 13 months from the end of April 2004 onwards remains unknown. The men gave a precise 168 description of their place of detention, which has not yet been published in full , and of the route along which they were taken. Particularly intriguing is their return flight to Yemen on 5 May 2005, reportedly a non-stop flight lasting approximately seven hours. I wrote to the Yemeni authorities and asked where the plane had come from, and the arrival of the aircraft on that date with the two men on board was officially confirmed to me. Unfortunately, although I wrote again, I have not yet received the specific information requested. Since the aircraft concerned was probably a military one, the information obtained from Eurocontrol has not made it possible to clarify this matter either. As for the description of the premises, we have not yet managed to find a place corresponding to this. 3.8. Mohammed Zammar 185. Mr Zammar, a German of Syrian origin, was suspected of having been involved in the "Hamburg cell" of Al Qaeda and had been under police surveillance for several years in Germany. After 11 September 2001, he had been the subject of a criminal investigation for ’support for a terrorist organisation’, but there was insufficient evidence to keep him in prison. 186. On 27 October 2001, he is reported to have left Germany for Morocco, where he spent several weeks. When he attempted to return to Germany, he was allegedly arrested by Moroccan officials at Casablanca airport early in December, and to have been questioned by Moroccan and American officials for over two weeks. Towards the end of December 2001, he is said to have been 169 flown to Damascus, in Syria, on a CIA-linked aircraft . 170 187. The case has received extensive press coverage , and there have been allegations that Mr Zammar’s arrest in Morocco was facilitated through the provision of information by German services, that he was tortured by Syrian services and that he was questioned in Syria by German officials. 188. A detailed German government report to the Bundestag, a copy of which I have obtained gives a balanced version of this affair. 166 171 , Below the radar: secret flights to torture and "disappearance", 5 April 2006, AI Index: AMR 51/051/2006. My particular thanks go to Mrs Anne Fitzgerald for her co-operation with our committee' s secretariat on this subject. 167 AI’s report (pp 9-16) gives a precise description of the sufferings of the victims and their families. 168 Cf AI report (pp 13 and 14). One particularly interesting piece of information is a geographical deduction based on the prayer times provided, which were taken from an Internet site (islamicfinder.org). The time of the sunset prayer ranged from 4.30 to 8.45 pm (allowing for the change to summer time, which the whole of Europe uses, but not Afghanistan, Jordan or Pakistan). This corresponds to a location north of the 41st parallel, so well to the north of the Middle East, and very probably within a Council of Europe member state. 169 The Eurocontrol data available to us does not enable us to confirm this flight, which took place between two non-European airports. 170 Examples are the items published in the Washington Post on 12 and 19 June 2002 and 31 January 2003, in Der Spiegel in July 2002 and November 2005, and in Focus of 20 September 2002, and shown on Kalla Fakta (on the fourth Swedish TV channel) on 22 November 2004. 171 Following my request to the Chair of the Bundestag committee responsible for monitoring the special services, I received a copy of the public version of this report. I also received from an anonymous source a version classified "confidential/for official use only", of which I made responsible use, in the spirit of the decision taken by the Legal Affairs Committee at its meeting of 13 March 2006 on the receipt of confidential information. [I was also offered a copy of an even more detailed version classified ’secret’, which I opted not to accept for ethical reasons. I place my trust in the members of the Bundestag to whom this document was addressed to take the necessary action on the basis thereof, including appropriate action to alert me to any fact reported in this version directly related to my terms of reference as rapporteur. AS/Jur (2006) 16 Part II 44 189. Mr Zammar’s arrest in Morocco was objectively facilitated by exchanges of information between the German services and their Dutch, Moroccan and also American counterparts. These exchanges of information about the travel plans of a person suspected of terrorist activities (the German government' s report contains detailed information which seem to justify such suspicion) are part of normal international co-operation in the fight against terrorism. It cannot be deduced from the fact that the German services informed their colleagues of the dates on which Mr Zammar had flight reservations that it was their intention - or even that they suspected - that he would be arrested and held in violation of normal procedures. The facts date back to December 2001, so well before the public revelations about the illegal practice of ’rendition flights’. 190. The German Ministry for Foreign Affairs and the Damascus and Rabat Embassies intervened several times, firstly to establish Mr Zammar’s whereabouts, then to give him consular assistance during his detention in Syria. Syria refused any kind of consular intervention, on the basis of its nonrecognition of his renunciation of Syrian nationality when he underwent naturalisation in Germany, based on a policy applied generally by Syria. 191. German officials did indeed question Mr Zammar in Syria. While Mr Zammar is said to have told his German interrogators that he had been beaten both in Morocco and in the early stages of his detention in Syria, this ill-treatment seems to have had no temporal or other connection with his questioning by the German officials. They are reported to have found him in a good physical and psychological condition, although he had lost a considerable amount of weight. Relations between Mr Zammar and his Syrian guards did not seem tense, although the German visitors did note a somewhat authoritarian relationship. The German government states that, from the outset, the services concerned, aware of the risks, had laid down clear rules: the voluntary basis principle, avoidance of inappropriate treatment – including, and especially, by the Syrian side - and immediate stoppage of the interview if there was the slightest suspicion of ill-treatment. 192. As indicated above, a Bundestag committee of inquiry is looking into the matter, and it is appropriate to wait for its results. 3.9. Binyam Mohamed al Habashi 193. Binyam Mohamed al Habashi is an Ethiopian citizen who has held resident status in the United Kingdom since 1994. While many of his family members emigrated to the United States and became naturalised citizens there, Binyam moved to the UK as a teenager and claimed asylum. He spent seven years pursuing his education in London while his asylum application was considered in a protracted, ultimately unresolved process. He was trying to overcome a drug habit and converted to Islam at the age of twenty. 194. Binyam is now detained at Guantanamo Bay and has been selected as one of the first group of ten prisoners to appear before a special United States Military Commission, probably later in 2006. We were able to view Binyam’s diary, an account of the last five years of his life, and a series of letters he has written from Guantanamo. A member of my team was also able to hear first-hand testimony from members of his family and his legal representatives in the United Kingdom. 195. In treating Binyam’s case in my report I shall avoid any reference to the charges he is likely to face before the Military Commission. Suffice to say that I regard such commissions generally as a flawed basis on which to prosecute allegations of the most serious nature, since the defendant’s due 172 process rights are severely impaired . I do not consider these commissions to be fair hearings and I reiterate my position that the global effort to bring terrorist suspects to justice should depend primarily upon judicial remedies. 196. Of greatest concern in Binyam’s case are the accounts of torture and other serious human rights violations which he says he has suffered. He speaks of being wounded all over his body with a scalpel and a razor blade, beaten unconscious and hung from the walls in shackles. He suffered gross physical injuries, including broken bones. He was constantly threatened with death, rape and electrocution. 172 Reference to the Executive Order that established Military Commissions for Guantanamo detainees, signed by President Bush in Oct / Nov 2001. 45 AS/Jur (2006) 16 Part II 197. It is difficult to say whether this account actually reflects reality. Let us just recall that some of these acts are included in what has been called ’enhanced interrogation techniques’, which have been 173 developed by the United States in the “war on terror” . Furthermore many of the abuses described by Binyam bear striking similarities to the allegations of other detainees who have been held in the 174 same detention facilities at various points over the last few years . 198. Binyam‘s case is an example for the very numerous detainees – most of whose names and whereabouts we do not know – who have become trapped in the United States’ spider’s web during the course of the ’war on terror’. Binyam has been subjected to two CIA renditions, a US military transfer to Guantanamo Bay and several other clandestine transfers by plane and helicopter. He has been held in at least two secret detention facilities, in addition to military prisons. During his illegal interrogations, he has been confronted with allegations that could only have arisen from intelligence provided by the United Kingdom. 199. Binyam’s family told my representative that he disappeared in summer 2001. This very close family subsequently endured several years of desperate uncertainty about his whereabouts and wellbeing, only partially clarified by their first visit from FBI agents three years later, in 2004. Although they have received a handful of letters from him in Guantanamo, none of the family has been able to see or speak to Binyam for five years. 175 200. According to his testimony, Binyam has travelled voluntarily to Afghanistan in 2001 and spent some time there, probably several months, before crossing into Pakistan and seeking to return to the UK. He was arrested by Pakistani officials at Karachi Airport on 10 April 2002 for attempting to travel on a false passport. Within ten days of his arrest, he was interrogated by American officials. Upon asserting his right to a lawyer, and later upon refusing to answer questions, American officers are alleged to have told him: “The law has been changed. There are no lawyers. You can co-operate with us the easy way, or the hard way. If you don’t talk to us, you’re going to Jordan. We can’t do what we want here, the Pakistanis can’t do exactly what we want them to do. The Arabs will deal with you." 201. The initial interrogations in Karachi involved Pakistani, American and British agents. Binyam was never accused of a particular crime and was told by MI6 agents that “they checked out my story and said they knew I was a nobody”. When he was discharged from Pakistani custody, however, he was not released. Instead, the Pakistani security services took him to a military airport in Islamabad and handed him over to the United States. 202. Binyam testifies that he underwent his first rendition on 21 July 2002. He was set upon by unidentified people “dressed in black, with masks, wearing what looked like Timberland boots”. He describes how they “stripped him naked, took photos, put fingers up his anus and dressed him in a tracksuit. He was shackled, with earphones, and blindfolded”, before being forced onto an aircraft and flown to Morocco. Official flight records obtained by this inquiry show that the known rendition plane, N379P, took off from Islamabad on 21 July 2002 and flew to Rabat, Morocco. 203. Binyam has described various secret detention facilities in which he was held in Morocco, including one prison that was submerged “almost underground” and one more sanitary place in which he was apparently placed to recover from injuries sustained from his torture. Between July 2002 and January 2004 Binyam was tortured on numerous occasions by a team of interrogators and other officials, most of whom were Moroccan. Some of the officials wore masks, while others did not; at least one interrogator, who identified herself as a Canadian, is thought to have been an American CIA agent. 173 Reference to some of the many documents on interrogation techniques obtained by the ACLU in its series of applications under the Freedom of Information Act. 174 In this regard, reference Human Rights Watch reports on Temara in Morocco, plus a range of NGO and detainee accounts from the Dark Prison in Kabul. 175 Binyam has told his lawyer that wanted to travel to Afghanistan to see the Taliban with his own eyes and decide “whether it was a good Islamic country or not”. He also wanted to get away from a social life in London that revolved around drug use. AS/Jur (2006) 16 Part II 46 204. It appears that the object of the torture was to break Binyam’s resistance, or to destroy him physically and psychologically, in order to extract confessions from him as to his involvement in terrorist activities. In addition to the sustained abuse and threats, the torturers used information, apparently obtained from intelligence sources, to indicate to Binyam that they knew a lot about him. Much of the personal information – including details of his education, his friendships in London and even his kickboxing trainer – could only have originated from collusion in this interrogation process by UK intelligence services. Since the purposes to which this information would be put were reasonably foreseeable, the provision of this information by the British Government amounts to complicity in Binyam’s detention and ill-treatment. 205. Binyam has described his ill-treatment in Morocco to his lawyer in several phases: an initial ’softening up’; a routine ’circle of torture’; and eventually a ’heavy’ abuse involving mental torment and the infliction of physical injury. In the first few weeks of his detention he was repeatedly suspended from the walls or ceilings, or otherwise shackled, and brutally beaten: “They came in and cuffed my hands behind my back. Then three men came in with black ski masks that only showed their eyes… One stood on each of my shoulders and the third punched me in the stomach. The first punch… turned everything inside me upside down. I felt I was going to vomit. I was meant to stand, but I was in so much pain I’d fall to my knees. They’d pull me back up and hit me again. They’d kick me in the thighs as I got up. They just beat me up that night… I collapsed and they left. I stayed on the ground for a long time before I lapsed into unconsciousness. My legs were dead. I could not move. I’d vomited and pissed on myself.” 206. At its worst, the torture involved stripping Binyam naked and using a doctor’s scalpel to make incisions all over his chest and other parts of his body: “One of them took my penis in his hand and began to make cuts. He did it once and they stood for a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists.” 207. Eventually Binyam began to co-operate in his interrogation sessions in an effort to prevent being tortured: “They said if you say this story as we read it, you will just go to court as a witness and all this torture will stop. I could not take any more… and I eventually repeated what they read out to me. They told me to say I was with bin Laden five or six times. Of course that was false. They continued with two or three interrogations a month. They weren’t really interrogations – more like trainings, training me what to say.” 208. Binyam says he was subjected to a second rendition on the night from 21 to 22 January 2004. After being cuffed, blindfolded and driven for about 30 minutes in a van, he was offloaded at what he believes was an airport. Again, Binyam’s description matches the ‘methodology’ of rendition described earlier in this report: “They did not talk to me. They cut off my clothes. There was a white female with glasses – she took the pictures. One of them held my penis and she took digital pictures. When she saw the injuries I had, she gasped. She said: ‘oh my God, look at that’.” 209. The second rendition of Binyam Mohamed took place within the ’rendition circuit’ that I have identified for this first time in this inquiry. The aircraft N313P, operated on behalf of the CIA, is shown in my official data to have flown from Rabat to Kabul in the early hours of 22 January 2004. I regard this flight as an unlawful detainee transfer, transporting Binyam Mohamed from one secret detention facility to another. Two days later, as part of the same circuit, the same plane had flown back to 176 Europe and was used in the rendition of Khaled El-Masri . 176 References to the sections on rendition circuits and the individual case of El-Masri. 47 AS/Jur (2006) 16 Part II 210. Binyam Mohamed’s ordeal continued in Kabul, Afghanistan, where he was held in the facility he 177 refers to as “The Prison of Darkness” for four months. Detention conditions in this prison themselves amount to inhuman and degrading treatment. In addition, forced stress positions, sleep alteration, 178 sensory deprivation and other recognised "enhanced interrogation techniques" are known to be deployed there routinely by the United States military and its partners. At various times, Binyam was chained to the floor with his arms suspended above his head, had his head knocked against the wall and describes “torture by music”, involving the sounds of loud rap and heavy metal, thunder, planes taking off, cackling laughter and horror sounds that amounted to a “perpetual nightmare”. 211. Up until his transfer by helicopter to Bagram at the end of May 2004, Binyam was not allowed to see daylight. He was persistently interrogated and told about terrorist plots and activities in which he was accused of involvement. He was subjected to irregular eating patterns and ”weird” sessions with psychiatrists. 212. In a detention facility at Bagram Air Base, Afghanistan, Binyam was forced to write out a lengthy statement prepared by the Americans. The content of the statement is unknown to us. Binyam has told his lawyers that he wrote and signed this document in a state of complete mental disarray: “I don’t really remember [what I wrote], because by then I just did what they told me. Of course, by the time I was in Bagram I was telling them whatever they wanted to hear.” 213. The case of Binyam Mohamed is sufficient grounds for an urgent and decisive change of course in the international effort to overcome terrorism. The Council of Europe is duty-bound to ensure that secret detentions, unlawful inter-state transfers and the use of torture are absolutely prohibited and never resorted to again. 214. It remains to be seen whether a Military Commission process will decide for or against Binyam Mohamed. The only certain legacy of this case is the deeply disturbing recognition that a human being has, in his own words, been completely dehumanised: ”I’m sorry I have no emotion when talking about the past, ‘cause I have closed. You have to figure out all the emotional part; I’m kind of dead in the head.” 4. Secret places of detention 179 215. After the publication of allegations by the Washington Post and Human Rights Watch centred our search on certain sites in Poland and Romania. 4.1. , we Satellite photographs 216. We obtained from the European Union Satellite Centre (EUSC) in Torréon a number of 180 satellite photographs of the sites concerned , some taken at different times. We studied these with the assistance of an independent expert. 217. These photographs do not constitute conclusive evidence. With the expert' s help, we were able to identify several specific locations at a civil airport and a secret services base (in Poland) and at military airfields (in Romania) which would be very suitable for the secret detention of persons flown in from abroad. There are however hundreds of equally favourable locations throughout Europe. As the EUSC did not have available, for most of the places concerned, sequences of photographs which would have shown whether physical structures (huts, fences, watchtowers, and so on) had been altered (added or dismantled) at certain relevant times, the satellite photographs do not enable us to reach any conclusions with a high degree of certainty. 177 Many other accounts in the file of the Rapporteur refer to this facility as the “Dark Prison” or the “Disco Prison”. These so-called ‘enhanced interrogation techniques’, which are considered acceptable in the context of some interrogations by the Americans, were exposed by the ACLU in its application under the Freedom of Information Act. In particular, these techniques are enumerated in a document from the FBI, available at www.aclu.org. 179 See above, para. 7. 180 The following sites were captured in the satellite photographs: Cataloi, Fetesti and Mihail Kogalniceanu in Romania; and Szczytno / Szymany in Poland. 178 AS/Jur (2006) 16 Part II 48 218. On the other hand, they did enable us to request certain clarifications from the Polish and Romanian delegations. All the replies we received, in my opinion, show a lack of transparency and 181 genuine willingness to co-operate in the authorities concerned . 4.2. Documented aircraft movements 219. As we showed above, the information received from Eurocontrol and certain national air traffic control authorities, confirmed by witnesses'accounts, makes it possible to be sure that certain flights were made between known detention centres and the suspected places in Poland and Romania. The geographical position of these places making them unlikely to be used for refuelling, the period spent on the ground in these places by these aircraft, and in particular the fact that the landings in questions 182 belong to well-established ‘rendition circuits’ , allow us to suspect that they are or were places of detention which form part of the ‘spider' s web’ referred to above. 4.3. Witnesses'accounts 183 220. Accounts given by witnesses to Amnesty International make it look very likely that a relatively large place of detention had to be located in a European country, without any more detail. 184 221. A journalist working for German television interviewed a young Afghan in Kabul who said that he had been held in Romania. This witness, very frightened and unwilling to give direct evidence to a member of my team, was reported to have been told by a guard to whom he had complained about his conditions of detention that he was lucky in fact to be in Romania. 185 222. Let us recall also – as mentioned in my information note in January 2006 - that according to a fax sent by the Egyptian Ministry for European Affairs to the Egyptian Embassy in London and intercepted by Swiss intelligence services, such centres had existed in Romania, Bulgaria, Macedonia, Kosovo and in Ukraine. 223. Both sources from inside the CIA referred to by the Washington Post, ABC and HRW are said 186 to have named Poland and Romania, but without indicating specific places . 4.4. Evaluation 224. Whilst to date, no evidence in the formal sense of the term has come to light, many coherent and convergent elements provide a basis for stating that these secret CIA detention centres have indeed existed in Europe, and we have seen that several indicators point at these two countries. As explained before, if these elements are not evidence, they are sufficiently serious to reverse the burden of proof: it is now for the countries in question to address their ‘positive obligations’ to investigate, to avoid endangering the credibility of their denials. 181 In Poland' s case, we detected, at an airfield said not to have been used for military purposes since the end of World War II, a very well-maintained double fence around a structure identified as containing munitions bunkers. Our question as to the reason for keeping this double fence in perfect condition did not receive a convincing reply. Where Romania is concerned, the authorities first stated that the construction works at the airbases concerned were merely being carried out to maintain existing infrastructure; only when the question was raised again, backed up by the only single-site photo sequence available to us, clearly showing the building of a new hangar and an extension of the aircraft parking area, that the Romanian authorities confirmed that some new building had also been done. 182 See para. 52 above 183 See para. 184 above, the case of Mr Bashmila and Mr Ali Qaru. 184 Ashwin Raman, one of the makers of an ARD documentary shown on the ARD channel on 1 March 2006 and on SWF on 8 March. 185 Information note dated 22 January 2006, para. 5 and 52 186 Ibid, see para. 7. 49 5. AS/Jur (2006) 16 Part II Secret detentions in the Chechen Republic 225. Although massive violations of human rights in Chechnya began and were denounced long before the American ‘spider' s web’ was woven, it is regrettable and worrisome to observe that the two principal world powers cite the fight against terrorism as a reason to abandon the principle of respect for fundamental rights. This creates a mechanism of ‘reciprocal justification’ and constitutes a deplorable example for other states. 226. It is hardly possible to speak of secret detention centres in Council of Europe member states without mentioning Chechnya. Mr Bindig’s very recent report also notes not only numerous cases of forced disappearance and torture, but also the existence of secret places of detention. 5.1. The work of the European Committee for the Prevention of Torture (CPT) 227. The situation in Chechnya, where unofficial places of detention are concerned, has already been roundly criticised by the CPT in two public declarations to which I referred in my information 187 memoranda of December 2005 and January 2006 . The positions expressed therein could not be clearer, but the Committee of Ministers of the Council of Europe has not yet given them the attention they deserve. During a very recent visit to the region, in May 2006, a CPT delegation again had grounds to believe that locations which might serve as unofficial places of detention were in the 188 region . 5.2. Damning recent accounts by witnesses 228. Aaron Rhodes, Executive Director of the International Helsinki Federation for Human Rights 189 (IHF), wrote an open letter to me dated 12 May 2006 accompanied by a report compiled by the IHF, with the help of Russian non-governmental organisations active in the region, containing damning accounts by the victims of secret detention, who had also suffered torture, often followed by enforced disappearance, in the North Caucasus region. Many of these cases were attributed to the Kadyrovtsi, the militia under the direct command of the current Prime Minister of the Chechen Republic, Ramzan Kadyrov. According to several of these accounts, some places used as unofficial places of detention 190 were in Tsentoroy, the village where the Kadyrov family originated . 229. Concern about our organisation' s credibility means that these allegations deserve to be investigated in the same way as the violations committed by American services, especially as the Chechen Republic is on the territory of a member state of the Council of Europe. 187 See the two Public Declarations concerning the Chechen Republic, [CPT/Inf (2001) 15] and [CPT/Inf (2003) 33], available at: http://www.cpt.coe.int/documents/rus/2001-07-10-eng.htm and http://www.cpt.coe.int/documents/rus/2003-33-inf-eng.htm 188 Cf. CPT press release: http://www.cpt.coe.int/documents/rus/2006-05-09-eng.htm. Exceptionally, a CPT visit was interrupted when access to the village of Tsentoroy (Khosi-Yurt), south-east of Gudermes, was denied on 1 May 2006; the visit was resumed next day, when the delegation gained access to the village early in the afternoon. 189 See the letter entitled: “Secret prisons in Europe should be of concern to the Council of Europe”, authored by Aaron Rhodes, IHF; 12 May 2006; http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=4249. 190 See note 82 (above). AS/Jur (2006) 16 Part II 6. 50 Attitude of governments 230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what was happening, in the context of the fight against international terrorism, in some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their 191 intelligence services is not supposed to be known . 231. The most disturbing case – because it is the best documented – is probably that of Italy. As we have seen, the Milan prosecuting authorities and police have been able, thanks to a remarkably competent and independent investigation, to reconstruct in detail the extraordinary rendition of the imam Abu Omar, abducted on 17 February 2003 and handed over to the Egyptian authorities. The prosecuting authorities have identified 25 persons responsible for this operation mounted by the CIA, and have issued arrest warrants against 22 of them. The then Justice Minister in fact used his powers to impede the judicial authorities’ work: as well as delaying forwarding requests for judicial assistance to the American authorities, he categorically refused to forward the arrest warrants issued against 22 192 American citizens . Worse still: the same Justice Minister publicly accused the Milan judiciary of 193 attacking the terrorist hunters rather than the terrorists themselves . Furthermore, the Italian Government did not even consider it necessary to ask the American authorities for explanations regarding the operation carried out by American agents on its own national territory, or to complain about the fact that Abu Omar’s abduction ruined an important anti-terrorism operation being undertaken by the Milan judiciary and police. As I stated in my January 2006 memorandum, it is unlikely that the Italian authorities were not aware of this large-scale CIA operation. As mentioned above (220.127.116.11), the investigation in progress shows that Italian officials directly took part in Abu Omar’s abduction and that the intelligence services were involved. 191 Some states’ legislation expressly prohibits them from using or releasing information gathered by their intelligence services. This is the case in Hungary, for example. 192 Article 4 of the extradition treaty between the United States and Italy also provides for the extradition of each country’s own nationals. It should be added, however, that warrants issued by the Italian judiciary are enforceable in EU countries, as European arrest warrants do not have to be forwarded by the Ministry via diplomatic channels. 193 ANSA agency, 27 February 2006, widely published in the Italian press. 51 AS/Jur (2006) 16 Part II 232. In an effort to be impartial, I shall also discuss the example of my own country, Switzerland. As we shall see, a number of aircraft described as suspect and mentioned in the questionnaires sent to the member states landed in Geneva (and Zurich, as Amnesty International investigations subsequently showed). The United States did not respond to the Swiss authorities’ requests for explanations for several months. A few hours before the annual clearance for aircraft flying on behalf of the American Government to overfly Swiss territory was due to expire, an American official apparently gave a Swiss Embassy representative in Washington verbal assurances that the United States had respected Switzerland’s sovereignty and had not transported prisoners through Swiss airspace, thus simply reiterating the statement made by Ms Rice in Brussels on 5 December 2005. This assurance was very belated and, above all, not particularly credible in the light of the established facts: the Italian judicial authorities have established, on the basis of some very convincing evidence, that Abu Omar, abducted in Milan on 17 February 2003, was flown the same day from the Aviano base to the base at Ramstein in Germany, transiting through Swiss airspace; this flight has been confirmed, moreover, by Swiss air traffic controllers. The Italian investigation also establishes that the head of the Milan operation had stayed in Switzerland. The Swiss Government deliberately ignored 194 – despite their detailed and clearly serious nature – and settled for that vague, these allegations somewhat informal response from an official. It has taken a formalistic position, claiming that it did not have any evidence and, under international law, had to rely on the principle of trust. It clearly wished to renew the overflight clearance, which it quickly did without asking any further questions. The Confederal Prosecutor’s Office has nevertheless opened a preliminary investigation to establish whether there have been violations of the law under Swiss jurisdiction in the Abu Omar case. At the same time, the Military Prosecutor’s Office has begun an investigation aimed at identifying and punishing the perpetrator(s) of the leak enabling the Egyptian fax intercepted by the intelligence services to be made public. The journalists who published this are also being prosecuted, on the basis of rules whose compatibility with the principles of the freedom of the press in a democratic system seems highly doubtful. A revelation made these days rekindles the criticism directed at the authorities, which are accused of slavish obedience towards the United States: according to press reports, based on apparently well-informed sources, the Swiss authorities are said to have deliberately failed to execute an international arrest warrant brought by the Italian judicial authorities following the abduction of Abu Omar in February 2003. Robert Lady, the head of the detail wanted by the police, who was at the time in charge of the CIA in Milan holding the title and status of Consul of the United States, is said to have stayed in Geneva very recently; the police had been ordered to merely carry out discrete surveillance. 233. The principle of trust has also been invoked by other governments. This is the case with Ireland, for example: the government has stated that there was no reason to investigate the presence 195 of American aircraft, since the United States had given assurances . In Germany, the government and the ruling parties opposed – ultimately in vain – the establishment of a parliamentary commission of inquiry, despite the significant questions being raised about the role of the intelligence services, particularly in the case of the abduction of El-Masri. Lastly, in November 2005 I sent a request for information to the United States Ambassador (an observer with the Council of Europe). The Ambassador responded by sending me the public statement made by the American Secretary of State on 5 December 2005. In particular, the latter had stated that the United States had not violated the sovereignty of European states, that ‘renditions’ had saved human lives and that no prisoners had 196 been transported for the purpose of torture . European ministers, meeting in the framework of NATO, 197 198 hastened to declare themselves satisfied with these assurances . Or almost . 194 The Swiss federal prosecuting authorities have, however, instituted a preliminary investigation into these allegations. 195 We would not see any reason to because we have received categorical assurances from the US that they are not using Shannon in this way (Irish Examiner, 22 February 2006). 196 The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture (statement of 5 December 2005). 197 The German Foreign Minister, Mr Steinmeier, emphasised the need for such clarification, because, he said, we should not diverge from one another on the interpretation of international law (AP 8 December 2005). 198 Only Bernard Bot, the Dutch Foreign Affairs Minister, considered the American explanations “inadequate”; Scandinavian diplomats also protested against the American services’ use of “methods on the edge of legality”. On the whole, however, the Europeans, headed by Britain’s Jack Straw, kept a low profile so as not to offend the “iron lady” of American diplomacy. (Le Figaro of 8 December 2005). AS/Jur (2006) 16 Part II 52 234. It should be pointed out that some governments have deliberately assisted in ‘renditions’. This is especially well established with regard to Bosnia and Herzegovina, which has rendered six persons to the American forces outside of any legal procedure, as established by the national judicial authorities, as we have noted above. This certainly deserves to be stressed and welcomed. It is true that the Government of Bosnia and Herzegovina was regrettably not particularly determined, but it should not be forgotten that this young republic had been strongly pressured by a great power present on its territory. We have already criticised the Macedonian authorities, which have locked themselves up in categorical denial without having carried out any serious enquiry. Sweden has also rendered two asylum seekers to American operatives for ‘rendition’ to the Egyptian authorities, as formally condemned by the UN Committee against Torture. The Swedish authorities, despite this international condemnation and parliamentary requests to this effect have yet to commence a proper inquiry into 199 these facts . 235. When the previous memoranda, which set out interim summaries, were published, criticisms were voiced that the evidence given referred primarily to NGO reports and accounts related in the press. It should be pointed that without the work undertaken by these organisations and the investigations of competent and tenacious journalists, we would not be talking about this affair – which, nobody can now dispute, has some basis in fact – today. Indeed, governments did not spontaneously or autonomously take any real action to seek evidence for the allegations, despite their serious and detailed nature. Critics included those who, given their existing or previous positions and responsibilities, could have helped to establish the truth. Furthermore, it is shocking that some countries put pressure on journalists not to publish certain news items (I have mentioned the cases of the ABC and the Washington Post) or prosecuted them for publishing documents deemed 200 confidential . Such zeal would have been better employed in seeking to ascertain the truth – a fundamental requirement in a democracy – and prosecuting those guilty of perpetrating or tolerating any kind of abuse, such as illegal abductions or other acts contrary to human dignity. 236. The American administration’s attitude to the questions being raised in Europe about the CIA’s actions was, once again, clearly illustrated during the fact-finding visit to the United States by a delegation from the European Parliament’s Temporary Committee (TDIP): no or few replies were given to the numerous questions. I have already discussed the response to my request from the United States Ambassador to the Council of Europe (3.1.4). It is obvious that if the American authorities did not constantly raise the objection of secrecy for national security reasons, it would be far easier to establish the truth. We find that today, this secrecy is no longer justified. In a free and democratic society, it is far more important to establish the truth on numerous allegations of serious human rights violations, many of which are proven to a large extent. 199 As condemned by the Council of Europe’s Commissioner for Human Rights in his statement on “fight against terrorism by legal means” published on the Council of Europe’s website on 3 April 2006. 200 In particular, this is what happened to the two Swiss journalists who, in early January 2006, published the content of the Egyptian fax, intercepted by Swiss intelligence services, mentioning the existence of detention centres in Eastern Europe. The two journalists have published a book outlining the circumstances by which they came into possession of the document: Sandro Brotz, Beat Jost, CIA-Gefängnisse in Europa – Die Fax-Affäre und ihre Folgen, Orell Füssli, 2006. AS/Jur (2006) 16 Part II 53 7. Individual cases: judicial proceedings in progress 7.1. A positive example: the Milan public prosecutor's office (Abu Omar case) 237. In this case, the Italian judicial authorities and police have shown great competence and remarkable independence in the face of political pressures. A competence and independence already proven during the tragic years stained with blood by terrorism. The Milan public prosecutor' s office was able to reconstitute in detail a clear case of ‘rendition’ and a regrettable example for the lack of 201 202 international cooperation in the fight against terrorism . As I have already said , the Italian judicial authorities have brought international arrest warrants against 22 American officials. In addition, the ongoing investigation seems to be in the process of showing that operatives belonging to the Italian services have participated in the operation. 7.2. A matter requiring further attention: the Munich (El-Masri case) and Zweibrücken (Abu Omar case) public prosecutors'offices 238. The German justice system gave its attention to the Abu Omar and El-Masri cases in terms of criminal proceedings for abduction against persons unknown. In the first-named case, normal cooperation took place with the Milan public prosecutor' s office. As I have already stated, in my information memorandum of January 2006, the Zweibrücken public prosecutor' s office came up against a total lack of co-operation by the American authorities, which refused to provide any information on what had happened at the Ramstein base. 203 239. Where the second case is concerned, I have already given some information showing that certain serious investigative measures have already been taken and that more remains to be done, especially in relation to the witnesses named by him and to clarification of the possible role played by the various German intelligence services. 7.3. Another matter requiring further attention: the Al Rawi and El Banna case 240. Where the case of Al Rawi and El Banna is concerned, the British justice system has had to deal with an application by the families of the persons concerned attempting to force the UK government to intercede with the US government to obtain the release of both men, who are still held at Guantánamo Bay. It was in the framework of this procedure that the telegrams proving that MI5 was involved in the two men' s arrest in Gambia came into the public domain. After proceedings had begun, the UK authorities agreed to intercede on Mr Al Rawi’s behalf, but not on that of his fellow detainee, Mr El Banna, although he had been arrested for the same reasons with the assistance of the UK services. In May 2006, the action was dismissed by the court of first instance. 241. In view of the circumstances which have led up to the arrest of these two men, on may think that the UK government is under at least a moral and political obligation to do everything in its power to actively intercede to secure their release from Guantanamo so that they can return to the country. 7.4. Sweden: what next in the Agiza and Alzery case? 242. Sweden was condemned by the UN Committee against Torture in respect of the case of Mr Agiza and Mr Alzery, which led to an investigation by the parliamentary ombudsman, Mr Mats Melin. He noted that a preliminary investigation by the judicial authorities had culminated in the termination of 204 the proceedings . 243. According to some criticisms, which do not appear unfounded, different aspects of the case need further investigation. This disguised extradition, without any possibility of appeal and judicial scrutiny, and the ill-treatment at Bromma airport, still on the ground, under the eyes of Swedish officials, as well as the incomplete information provided to UN-CAT are serious matters which require that the whole truth be exposed. 201 I talked to Chief Prosecutor Mr Spataro for several hours and I wish to thank him for being so generous with his time. 202 In para. 162 203 In para. 103 204 See above, para. 152 AS/Jur (2006) 16 Part II 7.5. 54 Spain 244. The Palma de Mallorca public prosecutor' s office has begun an investigation following the transmission of a Guardia Civil file containing the names of the passengers on the aircraft which took off from the local airport bound for Skopje, where they were most likely joined by Mr El-Masri and 205 flown on to Afghanistan . 7.6. Mr El-Masri’s complaint in the United States 206 245. With the assistance of the American Civil Liberties Union , Mr El-Masri has taken judicial action in Alexandria, in Virginia, seeking compensation from the CIA. On 19 May 2006, his complaint was rejected by the court of first instance, without a ruling on the merits of his application, as the court accepted the US government' s argument that continuation of the proceedings would have jeopardised national security. In the course of the trial, the CIA’s secret methods would indeed become the subject of discussions before the court. 8. Parliamentary investigations 246. As long ago as January, I called on national parliaments to put questions to their governments and to begin inquiries, where appropriate, to clarify European governments'role in this affair. A large number of questions were indeed raised in the parliaments of numerous Council of Europe member states, and this is very pleasing. Unfortunately, the government replies were almost without exception vague and inconclusive. The German and UK parliaments were particularly active, whereas parliamentary reactions in three of the main countries concerned by the allegations which are the subject of this report (Poland, Romania and "the former Yugoslav Republic of Macedonia") were particularly feeble, if not inexistant. 8.1. Germany 247. Opposition MPs in Germany, although few in number since the recent elections, have put 207 208 numerous questions to their government . The replies were very general in every case . The government systematically hid behind the responsibility of the parliamentary monitoring committee (parlamentarisches Kontrollgremium, known as the PKG) for dealing with matters relating to the activities of the secret services. A number of questions relating to the subject of this report have effectively been discussed within the PKG, but the government' s detailed report to this very select group, which works in very carefully maintained secrecy, was classified "secret". The chair of the committee, Mr Röttgen (CDU), in response to my request, sent me the "public" version of this report, which is, frankly, not very informative and does not mention the individual cases raised by the media. The government attempted to avoid the setting up of a committee of inquiry by sending all members of the Bundestag a more informative version, classified "confidential", which does also contain some 209 information about some of the aforementioned individual cases . At the insistence of the three 210 opposition parties, a committee of inquiry has nevertheless been set up, and it started work in May . Its terms of reference include investigation of the allegations of collusion between the German authorities and the CIA in the case of Mr El-Masri. In short, the Bundestag has been highly active, urged on by the opposition parties in particular. 205 I have in my possession a copy of this list, but I have no information on the state concerned. I should like to thank the ACLU for making detailed documentation about this case available to me. 207 I should like to thank not only our Committee colleague Sabine Leutheusser-Schnarrenberger (Liberal), but also Mr Stroebele (Green party), for the information they have regularly supplied to me on this subject. 208 The same is true of the replies given by other governments questioned by members of their parliaments, such as those of Belgium, the United Kingdom, Sweden and Ireland. 209 The names of persons were represented by initials. See note 92 above in respect of my approach to the "confidential" and "secret" versions of this report. 210 I have been invited to address this committee in the near future. 206 55 8.2 AS/Jur (2006) 16 Part II The United Kingdom 248. Our work regarding the United Kingdom benefited greatly from the efforts of a variety of 211 interlocutors, whom I should like to salute in this report . The United Kingdom parliament has not yet established a formal inquiry into possible British participation in abuses committed by the United States in the course of the ’war on terror’, but there have been several noteworthy parliamentary initiatives designed to broaden the public debate and encourage greater openness. 249. Late last year, one of the UK Parliament’s standing committees, the Joint Committee on Human Rights (JCHR), launched an inquiry into UK Compliance with the United Nations Convention against Torture. As part of its mandate the Committee examined several issues of relevance to this inquiry, including the use of diplomatic assurances and the practice of ’extraordinary rendition’. 250. The JCHR held a series of evidence sessions, featuring Ministers of the United Kingdom 212 213 Government as well as representatives of non-governmental organisations . Members of my team, on a visit to London in March 2006, met with a Committee Specialist of the JCHR and attended its evidence session with the UK Minister of State for the Armed Forces, Rt. Hon. Adam Ingram. In its 214 report on UK Compliance with UNCAT published on 26 May 2006 , the JCHR recognised the “growing calls for an independent public inquiry” in the UK, but ultimately decided that such an inquiry would be “premature” until the Government’s own inquiries have been given a chance to publish with the “detailed information required”. 251. In the meantime an ad-hoc body known as the “All-Party Parliamentary Group (APPG) on Extraordinary Renditions” has engaged Members of the UK Parliament belonging to all political parties. On Tuesday 28 March, members of my team attended the APPG’s information session on the 215 cases of Bisher Al-Rawi and Jamil El-Banna , which featured testimony from both men’s legal representatives, MPs and family members. This session stimulated considerable media interest in the case and coincided with the public release of government telegrams passed on to the CIA in advance of the men’s rendition. I wish to thank the Chairman of the APPG, Mr Andrew Tyrie MP, along with his dedicated staff, for their valuable support. 8.3. Poland: a parliamentary inquiry, carried out in secret 252. A parliamentary inquiry into the allegations that a "secret prison" exists in the country has been conducted behind closed doors in Poland. Promises made beforehand notwithstanding, its work has never been made public, except at a press conference announcing that the inquiry had not found anything untoward. In my opinion, this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations. 211 In this regard, I should like to make particular mention of the London-based non-governmental organisation REPRIEVE, who have supported my team by providing contacts, research insights and materials relating to the cases they work on. 212 For example, on 6 March 2006 the JCHR heard evidence from the Solicitor General and Minister of State in the Department for Constitutional Affairs, Harriet Harman, along with other officials from her department. An uncorrected transcript of the session is available online at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/uc701-iii/uc70102.htm 213 On 21 November 2005 the JCHR heard evidence from Human Rights Watch, Amnesty International and REDRESS. An uncorrected transcript of the session is available online at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/uc701-i/uc70102.htm 214 The full report is available online at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/18502.htm; a full record of oral and written evidence was published in a separate volume, available at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/185-ii.pdf. 215 See to the section of the report that treats these cases, at 3.5 above. AS/Jur (2006) 16 Part II 8.4. 56 Romania and "the former Yugoslav Republic of Macedonia": no parliamentary inquiry 253. To my knowledge, no parliamentary inquiry whatsoever has taken place in either country, despite the particularly serious and concrete nature of the allegations made against both. What is more, the committee which supervises the secret services in "the former Yugoslav Republic of 216 Macedonia" ceased operations three years ago , and this is particularly worrying in a country where the secret services not so very long ago played a particularly important and controversial role. 9. Commitment to combating terrorism 9.1. Fight against terrorism: an absolute necessity 254. The fight against terrorism is unquestionably a priority for every government and, above all, for the international community as a whole. The use of terror, previously employed primarily as a weapon against individual governments, has increasingly become a means of attacking a political and social model, and indeed a lifestyle and civilisation represented by large parts of the planet. Terrorism has taken on a clear international connotation in recent years, and it too has taken advantage of the tremendous technological progress made in the fields of arms, telecommunication and mobility. It is consequently vital to co-ordinate the fight against terrorism at the international level. 255. It has to be said, however, that there are still significant deficiencies in such co-ordination, and that it too often depends on the goodwill, but also the arbitrary nature, of intelligence services. An understanding of this phenomenon, its structures, the resources at its disposal and its leaders is essential in order to deal with the terrorist threat successfully. Intelligence services consequently play an important and irreplaceable role. That role must, however, be specified and delimited within a welldefined institutional framework consistent with the principles of the rule of law and democratic legitimacy. This also calls for effective supervisory mechanisms; the evidence under consideration has highlighted alarming flaws in such mechanisms. It is a well-known fact that the various American and European intelligence services have set up working groups and exchanged information. This initiative can only be welcomed. The events of recent years show, however, that international co-ordination is still seriously inadequate. The Milan imam’s abduction is emblematic in this regard: the operation by CIA agents ruined the efforts of the Italian judiciary and police, who were involved in a major anti217 terrorism investigation targeting precisely the Milan mosque . 256. The governments’ very replies and especially their silence are a telling indication that intelligence services appear increasingly to work outside the scope of proper supervisory mechanisms. The way in which American services were able to operate in Europe, carrying out several hundred flights and transporting illegally arrested persons without any scrutiny, can only point to the participation or collusion of several European services – or, alternatively, incredible incompetence, a scenario which, frankly, is difficult to envisage. Indeed, everything seems to indicate that the American services were given considerable latitude and allowed to act as they saw fit, even though it would have been impossible not to be aware that their methods were incompatible with 218 national legal systems and European standards relating to respect for human rights . Such passivity on the part of European governments and administrative departments is disturbing, and such a careless, laisser-faire attitude unworthy. 216 Response of the Parliament of the former Yugoslav Republic of Macedonia (Sobranie) to the questionnaire of the TDIP Temporary Committee of the European Parliament. Available at: www.statewatch.org/’rendition. 217 This fact was expressly confirmed by Milan’s Deputy Public Prosecutor, during his hearing before the European Parliament’s Temporary Committee in Brussels on 23 February 2006. 218 In an interview with the German magazine Die Zeit on 29 December 2005, Mr Michael Scheuer, former head of the CIA’s “Bin Laden” unit and one of the architects of the “rendition” system further developed during Bill Clinton’s presidency and with his agreement, stated that the CIA was within its rights to break all laws except American law. See also Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorist Centre, supra note 19. 57 AS/Jur (2006) 16 Part II 257. The Council of Europe has already had the opportunity to voice clearly its concern about certain practices that have been adopted, particularly in the fight against terrorism, such as the indefinite imprisonment of foreign nationals on no precise charge and without access to an independent tribunal, degrading treatment during interrogations, the interception of private communications without subsequently informing those concerned, extradition to countries likely to apply the death penalty or the use of torture, and detention or assault on the grounds of political or o religious activism, which are contrary to the European Convention on Human Rights (ETS n 5) and the protocols thereto, the European Convention for the Prevention of Torture and Inhuman or o Degrading Treatment or Punishment (ETS n 126), and the Framework Decision of the Council of the 219 European Union . 9.2. The strength of unity and of the law 258. The Parliamentary Assembly has already expressed its views very clearly: it unreservedly shares the United States’ determination to combat international terrorism and fully endorses the importance of detecting and preventing terrorist crimes, prosecuting and punishing terrorists and 220 protecting human lives . This determination must also be shared by all of Europe. Back in 1986, the Assembly regretted the procrastination of European states in reacting multilaterally to the terrorist threat, and the absence up to the present time of a coherent and binding set of co-ordinated measures 221 adopted by common consent . Despite the intervening years and the spectacular development of this threat, no significant progress has really been made. It is more necessary than ever to extend this coherent and binding set of co-ordinated measures to Europe and to other parts of the world, starting with the United States. The approach of simply leaving the United States to it and pretending not to know what is happening, in many cases even on one’s own territory, is unacceptable. Only the adoption of a joint strategy by all the countries concerned can successfully counter the new threats, such as terrorism and organised crime. If, as the United States believes, existing legal instruments are no longer adequate to counter the new threats, the situation must be analysed and discussed on a joint basis. 259. It is highly likely that existing resources and arrangements will have to be adapted in order to combat international terrorism effectively. This is the view held by the United States Government, in 222 particular . Police investigation tools and the rules of criminal procedure clearly need to take into account the development of more serious forms of crime. However, such adaptation calls for multilateral consultation, presupposing dialogue, debate or even a frank and open confrontation, which clearly have yet to take place. On the contrary, the states of the European Union have just issued a particularly negative signal: giving in to what appears to be a nationalist reflex, in late April 2006 they turned down a Commission proposal to step up judicial and police co-operation under the Schengen 223 Agreement . 260. Efforts to combat impunity are undoubtedly a crucial element in the fight against terrorism. It is unfortunate that the American administration has systematically opposed the establishment of a universal jurisdiction, refusing to ratify the Rome agreement on the establishment of the International 224 Criminal Court . Handing over terrorist suspects (without, moreover, any verification of the substance of the accusations by a judicial authority) to states one knows, or must presume, will not respect fundamental rights, is unacceptable. Relying on the principle of trust and on diplomatic assurances given by undemocratic states known not to respect human rights is simply cowardly and hypocritical. 219 Recommendation 1713 (2005) of the PACE on Democratic oversight of the security sector in member states. Resolution 1433 (2005), on Lawfulness of detentions by the United States in Guantánamo Bay, § 1. 221 Resolution 863 (1986) on the European response to international terrorism, § 3. st 222 The captured terrorists of the 21 century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt. (Ms Rice, statement of 5 December 2005). 223 See, for instance, Le Figaro of 28 April 2006. 224 See, for example, Resolution 1336 (2003) on Threats to the International Criminal Court. 220 AS/Jur (2006) 16 Part II 58 261. The American administration states that rendition is a vital tool in the fight against international 225 terrorism . We consider that renditions may be acceptable, and indeed desirable, only if they satisfy 226 a number of very specific requirements (which, with a few exceptions , has not been the case in any of the known renditions to date). If a state is unable, or does not wish, to prosecute a suspect, it should be possible to apply the following principle: no person genuinely suspected of a serious act of terrorism should feel safe anywhere in the world. In such cases, however, the person in question may be handed over only to a state able to provide all the guarantees of a fair trial, or – even better – to an international jurisdiction, which in my view should be established as a matter of urgency. 262. The UN High Commissioner for Human Rights, Louise Arbour, has publicly criticised the practice of handing over detainees – outside the scope of the justice system – to countries known to use torture, while demanding assurances that these prisoners will not be ill treated. She added that 227 secret detention was a form of torture . 263. Abandoning or relativising human dignity and fundamental human rights is utterly inconceivable. All of history shows that arbitrary decisions, contempt for human values and torture have never been effective, have failed to resolve anything and, ultimately, have led only to a subsequent exacerbation of violence and brutality. In the end, such abuses have served only to confer a sense and appearance of legitimacy on those who attack institutions. In fact, giving in to this temptation concedes a major initial victory to the very people attacking our values. Furthermore, attempting to focus solely on security aspects, as is the case at present – with an outcome that is more than questionable – plays into the hands of the terror lords. It is imperative for a global antiterrorism strategy to consider political and social aspects. Above all, we must be mindful of the 228 strength of the values of the society for which we are fighting . Benjamin Franklin inevitably comes to mind, and his approach seems more relevant than ever: they that can give up essential liberty to attain 229 a little temporary security deserve neither liberty nor safety . 264. Legality and fairness by no means preclude firmness, but confer genuine legitimacy and credibility on a state’s inevitable preventive actions. In this respect, some of the international community’s attitudes are disturbing. I have already mentioned the unacceptable practice involving the application of UN Security Council sanctions on the basis of black lists. Another example is the situation in Kosovo, where the international community intervened to restore peace, justice and democracy: the inhabitants of this region are still the only people in Europe – with the exception of Belarus – not to have access to the European Court of Human Rights; its prisons are a virtual black hole, not open for inspections or monitoring by the Committee for the Prevention of Torture. In the name of what legitimacy, and with what credibility, is this same international community entitled to lecture Serbia? Examples are more effective than threats (Corneille). 225 Rendition is a vital tool in combating transnational terrorism (Ms Rice, in her statement of 5 December 2005). In particular, this applies to the case of the terrorist Carlos, which, moreover, was mentioned by Ms Rice. She appears to forget, however, that Carlos, abducted in Sudan, where he enjoyed total impunity, was transported to France, where he was judged according to a procedure consistent with the European Convention on Human Rights. 227 Le Monde of 9 December 2005. 228 A judgment of the Israeli Supreme Court, called to rule on an alleged breach of the principle of equality following the distribution of gas masks on the West Bank during the Gulf War, contains the following remarkable passage written by the President of the Court, Aaron Barak, himself a survivor of the Kovnus ghetto in Lithuania: “When the guns speak, the Muses fall silent. But when the guns speak, military commands must comply with the law. A society that wishes to be able to confront its enemies must above all be mindful that it is fighting for values worth protecting. The rule of law is one of those values”; in: Aaron Barak, Democrazia, Terrorismo e Corti di giustizia, Giurisprudenza Costituzionale, 2002, 5, p. 3385. 229 Quoted just recently by Heinrich Koller, Kampf gegen Terrorismus – Rechstaatlichen Grundlagen und Schranken, conference held in Zurich on 19 January 2006 before the Schweizeriche Helsinki Vereinigung für Demokratie, Rechtsstaat und Menschenrechte. 226 59 10. Legal perspectives 10.1. The point of view of the United States AS/Jur (2006) 16 Part II 265. In May 2006 the United States sent its first state delegation to the United Nations Committee against Torture (UN CAT) since the Bush Administration came to power. The delegation was headed by the Chief Legal Advisor to the Department of State, Mr John Bellinger. 266. Mr Bellinger oversaw the presentation of a 184-page submission to UN CAT, in which the United States set out its ‘exhaustive written responses’ to most of the Committee’s list of issues. The United States should certainly be commended for this level of engagement, notwithstanding that its policy regarding secret detentions and intelligence activities remained, for the most part, at a firm “no 230 comment” . 267. There can have been few more opportune times at which to engage Mr Bellinger on discussion of pertinent legal issues than in the week of his return from the UN CAT to Washington, 231 DC. In a briefing lasting about one hour , Mr Bellinger and his colleague Dan Fried, Assistant Secretary of State for European Affairs, provided us with a range of valuable perspectives, which I think it worthwhile to reflect fully in this report as the best contemporary first-hand portrayal of the US legal position. 268. Mr Bellinger made clear on several occasions that a programme of renditions remains a key strand of United States’ foreign policy: “As Secretary Rice has said, we do conduct renditions, we have conducted renditions and we will not rule out conducting renditions in the future.” 269. He was very decisive, however, in drawing a distinction between the original meaning of rendition and the popular, media-driven notion of Extraordinary Rendition: “To the extent that extraordinary rendition – as I have seen it defined – means the intentional transfer of an individual to a country, expecting or intending that they will be mistreated, then the United States does not do extraordinary renditions to begin with. The United States does not render people to other countries for the purpose of being tortured, or in the expectation that they will be tortured.” 270. Dan Fried used the briefing to explain some of the underlying considerations for the United States in pursuit of its ’war on terror’: “We are attempting to keep our people safe; we are attempting to fight dangerous terrorist groups who are active and who mean what they say about destroying us. We are trying to do so in a way consistent with our values and our international legal obligations. Doing all of those things in practice is not easy, partly because – as we’ve discovered as we’ve gotten into it – the struggle we are in does not fit neatly either into the criminal legal framework, or neatly into the law of war framework.” 271. With regard to the question of fitting into legal frameworks, I find it particularly noteworthy that the United States does not see itself bound to satisfy anyone’s interpretation of international law but its own. Mr Bellinger continually expressed this view: “We have to comply with our legal obligations. None of this can be done in an illegal way. We think from our point of view that we comply with all the legal obligations we have.” 230 See the CAT submission of the United States and the newly-published comments of the Committee (at page 4) on secret detentions, available at www.usmission.ch. 231 Detailed notes of the meeting with Mr Bellinger and transcripted comments are on file with the Rapporteur. AS/Jur (2006) 16 Part II 60 272. Similarly, in one of his longer explanations, Mr Bellinger defended the United States’ record in the eyes of its European partners: “For those who say we’re not following our international obligations in certain cases, I have to say that sometimes it comes down to a disagreement on what the obligation is. With regard to Article 3 of CAT, this is a technical issue. The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States. So we think that Article 3 of the CAT is legally binding upon us with respect to transfers of anyone from the United States; but we don’t think it is legally binding outside the United States. Similarly the Senate of the United States and our courts for more than ten years have taken a position that the words ’substantial grounds’ means ’more likely than not’. If we transfer a person from one point outside the United States to another point outside the United States then, as a policy matter, if we think there are substantial grounds to believe that the individual will be tortured or mistreated, we follow the same rules. I think it is a reasonable position for our courts to have set – that ’substantial grounds’ means ‘more likely than not’. What I can say, though, is that there are different legal regimes between the European Court of Human Rights and our courts, and you can’t ‘beat up’ our courts and our Senate based on some things that they said ten years ago as how they interpret the law. You may wish that the ECtHR interpretation of the CAT was the same position that we have here, but it is not. We do, though, take our legal obligations seriously. And there needs to be a recognition that there may be different interpretation of the terms, but nonetheless the United States still takes our legal obligations seriously – and we do that.” Mr Bellinger’s interpretation also serves to explain why a detention facility like Camp Delta is situated at Guantanamo Bay, in Cuba, and not in the desert of Arizona. The United States’ formalistic and positivist approach shocks the legal sensibilities of Europeans, who are rather influenced by ‘teleological’ considerations. In other words, the European approach is to opt for an interpretation that affords maximum protection to the values on which the legal rule is based. 273. Mr Bellinger was predictably reluctant to discuss the legal issues surrounding any of the cases of rendition that are alleged to have occurred, including the case studies treated in this report. He cited a considered policy on the part of the US Government to refrain from commenting: “We have thought seriously about whether we can answer specific questions publicly and say that there were one, two, or three renditions and where they went through. But we have concluded that, due to the nature of intelligence activities, we simply cannot get into the business of confirming or denying specific questions – as much as we would like to. I’m not going to confirm or deny whether there have been any renditions that have gone through Europe at all.” 61 AS/Jur (2006) 16 Part II 274. The United States Government is always prepared, however, to explain the “hard choices” it 232 feels it has to make to protect its citizens . Mr Bellinger, for his part, described a hypothetical “policy dilemma” based loosely on a real-life scenario, where a member of Al-Qaeda is captured at the Kenyan border, “trying to enter the country but the Kenyans don’t want him there”. The captive is known to be wanted by “some other country such as Egypt, Pakistan or Jordan” and the United States has an aircraft it could use to render him back. Mr Bellinger concluded his briefing by characterising the choice: “If the choice is between letting a person go who’s suspected of involvement in terrorism, or taking them back to their country of nationality, or some other country where they’re wanted – then that’s your choice, because there’s no extradition treaty and you obviously don’t want us to put more people in Guantanamo. If the choice is whether the person will disappear and be let go, or the country of his nationality or some other country wants him back, and the US is able to provide that – what should be done? That’s your choice. The United States says there are cases where in fact rendition might make sense.” 10.2. The point of view of the Council of Europe 10.2.1. The European Commission for Democracy through Law (Venice Commission) 275. The legal issues raised by the facts examined in this report, from the point of view of the Council of Europe, have been set out clearly and precisely by the Venice Commission, whom the 233 Committee on Legal Affairs and Human Rights had asked for a legal opinion in December 2005 . 276. In its conclusion, the Venice Commission stresses the responsibility of the Council of Europe’s member States to secure that all persons within their jurisdiction enjoy internationally agreed fundamental rights (including the right to security of the person, freedom from torture and right to life), 234 even in the case of persons who are aboard an aircraft that is simply transiting through its airspace . The Venice Commission also confirms that the obligations arising out of the numerous bilateral and multilateral treaties in different fields such as collective self-defence, international civil aviation and 235 military bases, “do not prevent States from complying with their human rights obligations” . 232 See Secretary Rice’s remarks upon her departure for Europe, Andrews Air Base, 5 December 2005: “Protecting citizens is the first and oldest duty of any government. Sometimes these efforts are misunderstood. I want to help all of you understand the hard choices involved, and some of the responsibilities that go with them.” 233 Opinion on the International Legal Obligations of Council of Europe Member States in Respect of Secret th Detention Facilities and Inter-State Transport of Prisoners, adopted by the Venice Commission at its 66 Plenary Session (Venice, 17-18 March 2006) on the basis of comments by Mssrs Iain Cameron (Substitute Member, Sweden), Pieter van Dijk (Member, the Netherlands), Olivier Dutheillet de Lamothe (Member, France), Jan Helgesen (Member, Norway), Giorgio Malinverni (Member, Switzerland) and Georg Nolte (Substitute Member, Germany) – opinion no. 363/2005, CDL-AD(2006)009. 234 cf. Opinion cited above, paras. 143-146. 235 ibid., para. 156. See EU Network of Independent Experts on Fundamental Rights, Opinion No. 3-2006 on “The Human Responsibilities of the EU Member States in the Context of the CIA Activities in Europe (‘Extraordinary Renditions’), 25 May 2006, at page 7. The Network reaches the same conclusion on the basis of Article 6(1) EU. AS/Jur (2006) 16 Part II 62 277. In reply to the specific questions asked by the Committee on Legal Affairs and Human Rights, the Venice Commission has drawn the following conclusions: “As regards arrest and secret detention a) Any form of involvement of a Council of Europe member State or receipt of information prior to an arrest within its jurisdiction by foreign agents entails accountability under Articles 1 and 5 of the European Convention on Human Rights (and possibly Article 3 in respect of the modalities of the arrest). A State must thus prevent the arrest from taking place. If the arrest is effected by foreign authorities in the exercise of their jurisdiction under the terms of an applicable Status of Forces Agreement (SOFA), the Council of Europe member State concerned may remain accountable under the European Convention on Human Rights, as it is obliged to give priority to its jus cogens obligations, such as they ensue from Article 3. b) Active and passive co-operation by a Council of Europe member State in imposing and executing secret detentions engages its responsibility under the European Convention on Human Rights. While no such responsibility applies if the detention is carried out by foreign authorities without the territorial State actually knowing it, the latter must take effective measures to safeguard against the risk of disappearance and must conduct a prompt and effective investigation into a substantiated claim that a person has been taken into unacknowledged custody. c) The Council of Europe member State’s responsibility is engaged also in the case where its agents (police, security forces etc.) co-operate with the foreign authorities or do not prevent an arrest or unacknowledged detention without government knowledge, acting ultra vires. The Statute of the Council of Europe and the European Convention on Human Rights require respect for the rule of law, which in turn requires accountability for all form of exercise of public power. Regardless of how a State chooses to regulate political control over security and intelligence agencies, in any event effective oversight and control mechanisms must exist. d) If a State is informed or has reasonable suspicions that any persons are held incomunicado at foreign military bases on its territory, its responsibility under the European Convention on Human Rights is engaged, unless it takes all measures which are within its power in order for this irregular situation to end. e) Council of Europe member States which have ratified the European Convention for the Prevention of Torture must inform the European Committee for the Prevention of Torture of any detention facility on their territory and must allow it to access such facilities. Insofar as international humanitarian law may be applicable, States must grant the International Committee of the Red Cross permission to visit these facilities. As regards inter-state transfers of prisoners f) There are only four legal ways for Council of Europe member States to transfer a prisoner to foreign authorities: deportation, extradition, transit and transfer of sentenced persons for the purpose of their serving the sentence in another country. Extradition and deportation proceedings must be defined by the applicable law, and the prisoners must be provided appropriate legal guarantees and access to competent authorities. The prohibition to extradite or deport to a country where there exists a risk of torture or ill-treatment must be respected. g) Diplomatic assurances must be legally binding on the issuing State and must be unequivocal in terms; when there is substantial evidence that a country practices or permits torture in respect of certain categories of prisoners, Council of Europe member States must refuse the assurances in cases of requests for extradition of prisoners belonging to those categories. 63 h) AS/Jur (2006) 16 Part II The prohibition to transfer to a country where there exists a risk of torture or ill-treatment also applies in respect of the transit of prisoners through the territory of Council of Europe member States: they must therefore refuse to allow transit of prisoners in circumstances where there is such a risk. As regards overflight i) If a Council of Europe member State has serious reasons to believe that an airplane crossing its airspace carries prisoners with the intention of transferring them to countries where they would face ill-treatment in violation of Article 3 of the European Convention on Human Rights, it must take all the necessary measures in order to prevent this from taking place. j) If the state airplane in question has presented itself as a civil plane, that is to say it has not duly sought prior authorisation pursuant to Article 3 c) of the Chicago Convention, the territorial State must require landing and must search it. In addition, it must protest through appropriate diplomatic channels. k) If the plane has presented itself as a state plane and has obtained overflight permission without however disclosing its mission, the territorial State cannot search it unless the captain consents. However, the territorial State can refuse further overflight clearances in favour of the flag State or impose, as a condition therefor, the duty to submit to searches; if the overflight permission derives from a bilateral treaty or a Status of Forces Agreement or a military base agreement, the terms of such a treaty should be questioned if and to the extent that they do not allow for any control in order to ensure respect for human rights. l) In granting foreign state aircraft authorisation for overflight, Council of Europe member States must secure respect for their human rights obligations. This means that they may have to consider whether it is necessary to insert new clauses, including the right to search, as a condition for diplomatic clearances in favour of State planes carrying prisoners. If there are reasonable grounds to believe that, in certain categories of cases, the human rights of certain passengers risk being violated, States must indeed make overflight permission conditional upon respect of express human rights clauses. Compliance with the procedures for obtaining diplomatic clearance must be strictly monitored; requests for overflight authorisation should provide sufficient information as to allow effective monitoring (for example, the identity and status (voluntary or involuntary passenger) of all persons on board and the destination of the flight as well as the final destination of each passenger). Whenever necessary, the right to search civil planes must be exercised. m) With a view to discouraging repetition of abuse, any violations of civil aviation principles in relation to irregular transport of prisoners should be denounced, and brought to the attention of the competent authorities and eventually of the public. Council of Europe member States could bring possible breaches of the Chicago Convention before the Council of the International Civil Aviation Organisation pursuant to Article 54 of the Chicago Convention. n) As regards the treaty obligations of Council of Europe member States, the Commission considers that there is no international obligation for them to allow irregular transfers of prisoners or to grant unconditional overflight rights, for the purposes of combating terrorism. The Commission recalls that if the breach of a treaty obligation is determined by the need to comply with a peremptory norm (jus cogens), it does not give rise to an internationally wrongful act, and the prohibition of torture is a peremptory norm. In the Commission’s opinion, therefore, States must interpret and perform their treaty obligations, including those deriving from the NATO treaty and from military base agreements and Status of Forces Agreements, in a manner compatible with their human rights obligations.” AS/Jur (2006) 16 Part II 64 10.2.2 The Secretary General of the Council of Europe (Article 52 ECHR) 278. The Secretary General has made use of his power of enquiry under Article 52 ECHR as 236 rapidly and as completely as possible. In his report dated 28 February 2006 , the Secretary General takes a clear position as regards member States’ responsibilities: “The activities of foreign agencies cannot be attributed directly to States Parties. Their responsibility may nevertheless be engaged on account of either their duty to refrain from aid or assistance in the commission of wrongful conduct, acquiescence and connivance in such conduct, or, more generally, 5 their positive obligations under the Convention. In accordance with the generally recognised rules on State responsibility, States may be held responsible of aiding or assisting another State in the 6 commission of an internationally wrongful act. There can be little doubt that aid and assistance by agents of a State Party in the commission of human rights abuses by agents of another State acting within the former’s jurisdiction would constitute a violation of the Convention. Even acquiescence and connivance of the authorities in the acts of foreign agents affecting Convention rights might engage the State Party’s responsibility under the Convention. Of course, any such vicarious responsibility 237 presupposes that the authorities of States Parties had knowledge of the said activities.” As regards the result of the Secetary General’s request for information, the report of 28 February concludes in a preliminary fashion that “all forms of deprivation of liberty outside the regular legal framework need to be defined as criminal offences in all States Parties and be effectively enforced. Offences should include aiding and assisting in such illegal acts, as well as acts of omission (being aware but not reporting), and strong criminal sanctions should be provided for intelligence staff or other public officials involved in such cases. However, the most significant problems and loopholes revealed by the replies concern the ability of competent authorities to detect any such illegal activities and take resolute action against them. Four main areas are identified where further measures should be taken at national, European and international levels: - the rules governing activities of secret services appear inadequate in many States; better controls are necessary, in particular as regards activities of foreign secret services on their territory; - the current international regulations for air traffic do not give adequate safeguards against abuse. There is a need for States to be given the possibility to check whether transiting aircraft are being used for illegal purposes. But even within the current legal framework, States should equip themselves with stronger control tools; - international rules on State immunity often prevent States from effectively prosecuting foreign officials who commit crimes on their territory. Immunity must not lead to impunity where serious human rights violations are at stake. Work should start at European and international levels to establish clear human rights exceptions to traditional rules on immunity; - mere assurances by foreign States that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanisms need to be set out in 238 agreements and national law in order to protect ECHR rights.” 236 SG/Inf (2006)5, available at the Council of Europe’s website (http://www.coe.int) ibid., para. 23 ; see also the excellent analysis of the case law of the European Court of Human Rights regarding member States’ “positive obligations” in paras. 24-30 238 Ibid., p. 1 (non-official executive summary) 237 65 AS/Jur (2006) 16 Part II 279. In this context, the Secretary General, referring to my information note of 21 January 2006, was worried about the fact that some countries have not replied, or have not replied completely, to his question concerning the involvement of any public official in such deprivation of liberty or transport of detainees, and whether any official investigation is under way or has been completed. Consequently, the Secretary General has asked additional questions to some countries. The replies are not yet in the public domain. 11. Conclusion 280. Our analysis of the CIA ' rendition'programme has revealed a network that resembles a ' spider’s web'spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as on other information including from sources 239 inside intelligence services, in particular the American. This ' web' , shown in the graphic , is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft. 281. These landing points are used for various purposes that range from aircraft stopovers to refuel during a mission to staging points used for the connection of different ' rendition circuits'that we have identified and where “rendition units” can rest and prepare missions. We have also marked the points where there are known detention centres (Guantanamo Bay, Kabul and Baghdad…) as well as points where we believe we have been able to establish that pick-ups of rendition victims took place. 282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several 240 indications have us believe that they are likely to form part of the ’rendition circuits’ . These landings 241 therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes , but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements - that these landings are detainee drop-off points that are near to secret detention centres. 283. Analysis of the network’s functioning and of ten individual cases allows us to make a number of conclusions both about human rights violations – some of which continue – and about the responsibilities of some Council of Europe member States. 284. It must be emphasised that this report is indeed addressed to the Council of Europe Member states. The United States, an observer state of our Organisation, actually created this reprehensible network, which we criticise in light of the values shared on both sides of the Atlantic. But we also believe to have established that it is only through the intentional or grossly negligent collusion of the European partners that this “web” was able to spread also over Europe. 285. The impression which some Governments tried to create at the beginning of this debate – that Europe was a victim of secret CIA plots – does not seem to correspond to reality. It is now clear – although we are still far from having established the whole truth - that authorities in several European countries actively participated with the CIA in these unlawful activities. Other countries ignored them knowingly, or did not want to know. 239 See graphic annex to this report: “The global “spider’s web” of secret detentions and unlawful inter-state transfers” 240 See paragraph 51 above. 241 See paragraph 49 above (quoting Michael Scheuer, architect of the rendition programme). AS/Jur (2006) 16 Part II 66 286. In the draft resolution, which sums up this report’s conclusions, I have not directly named the countries responsible simply because there is not enough room in such a text to adequately develop the nuances of each individual case. In addition, we only know part of the truth so far, and other countries may still turn out to be implicated in light of future research or revelations. This explanatory note, however, explains the discovered facts in far greater detail. Finally, the purpose of this report is not to attribute ‘grades’ to different member states, but to try to understand what really happened throughout Europe and to stop certain violations shown from reoccurring in future. I would add that a key element seems to be the urgent need to improve the international response to the threat of terrorism. This response presently appears today as largely inadequate and insufficiently coordinated. 287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘guilty’ for having tolerated secret detention sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations. 288. In this sense, it must be stated that to date, the following member States could be held responsible, at varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible): - Sweden, in the cases of Ahmed Agiza and Mohamed Alzery ; Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar ( the “Algerian six“) ; The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed ; Italy, in the cases of Abu Omar and Maher Arar ; “The former Yugoslav Republic of Macedonia“, in the case of Khaled El-Masri ; Germany, in the cases of Abu Omar, of the “Algerian six”, and Khaled El-Masri ; Turkey, in the case of the “Algerian six”. 289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non specified number of persons whose identity so far remains unknown: - Poland and Romania, concerning the running of secret detention centres; Germany, Turkey, Spain and Cyprus for being ’staging points’ for flights involving the unlawful transfer of detainees; Ireland, the United Kingdom, Portugal, Greece and Italy for being ‘stopovers’ for flights involving the unlawful transfer of detainees. 67 AS/Jur (2006) 16 Part II 290. Other States should still show greater willingness and zeal in the quest for truth, as serious indications show that their territory or their airspace might have been used, even unbeknownst, for illegal operations (the example of Switzerland was cited in this context). 291. The international community is finally urged to create more transparency in the places of detention in Kosovo, which to date qualify as ‘black holes’ that cannot even be accessed by the CPT. This is frankly intolerable, considering that the international intervention in this region was meant to restore order and lawfulness. 292. With regards to these extremely serious allegations, it is urgent – that is the principal aim of this report – that all Council of Europe member states concerned finally comply with their positive obligation under the ECHR to investigate. It is also crucial that the proposals in the draft resolution and recommendation are implemented so that terrorism can be fought effectively whilst respecting human rights at the same time.