Press release

Justice Initiative Warns against Dropping Inquiry Demand in CIA Kidnap Case

Date
November 26, 2019
Contact
Jonathan Birchall
media@opensocietyfoundations.org
+1-212-547-6958

The Open Society Justice Initiative is urging continued European pressure on North Macedonia to properly investigate its role in the 2004 kidnapping, torture and rendition to Afghanistan of Khaled el-Masri, a German national, as required by a landmark 2012 ruling of the European Court of Human Rights (ECHR).

The Committee of Ministers of the Council of Europe—which is responsible for ensuring the implementation of ECHR decisions—will be reviewing the case during its meetings in Strasbourg from December 3-5, amid expectations that North Macedonia will argue that it has sufficiently complied with the terms of the ruling.

The Justice Initiative, which represented el-Masri before the court, is urging the Committee to continue to supervise implementation of the Court’s judgement, because North Macedonia has not yet conducted an effective investigation “capable of leading to the identification and punishment of those responsible”, as ordered by the court.

Amrit Singh, a Justice Initiative lawyer who last week briefed permanent representatives who sit on the Committee of Ministers for the Council of Europe, said:

“A full investigation of what happened to el-Masri, that leads to the identification and punishment of those responsible, is the only outcome required by the proper application of the rule of law. Mr. El-Masri should not be penalized—and the North Macedonian government should not be rewarded—for its failure to conduct an effective investigation in a timely manner. Accepting anything less would undermine the authority of Europe’s top rights court, at a time when it has a vital role to play in defending fundamental freedoms of all Europeans.” 

The Justice Initiative, in its submission to the Committee of Ministers, is urging North Macedonia to create an effective and independent National Commission of Inquiry capable of recommending criminal investigations and of bringing about the prosecution of those persons deemed responsible for unlawful acts against El-Masri It is also urging North Macedonia to remove its current statute of limitations with respect to claims of torture and ill-treatment, in line with international law and practice.

Security personnel detained el-Masri, a German citizen, at North Macedonia’s border on December 31, 2003—in a case of mistaken identity— and interrogated him in secret for over three weeks. They then delivered him to CIA agents who flew him to Afghanistan, where he was secretly detained and abused for almost four months. In late May of 2004, the CIA dumped el-Masri him without explanation or apology on a roadside in Albania, long after American authorities had concluded that they had mistakenly captured the wrong man.

The submission expresses concern about the North Macedonian government’s position that a criminal investigation cannot be conducted because it has become time-barred. This position is contrary to the Court’s judgement, which requires an effective criminal investigation to be conducted in this case, and found a violation of Article 3 of the European Convention on Human Rights on account of North Macedonia’s failure to conduct such an investigation.  

Moreover, the submission argues, it is the North Macedonian government’s inaction that has caused the investigation to become time-barred. Indeed, the Court specifically noted that the applicant in this case filed a criminal complaint in October 2008 before it became time-barred, but that North Macedonian authorities rejected the complaint as unsubstantiated, thereby failing to comply with Article 3 of the Convention.  

North Macedonia has paid el-Masri financial damages as ordered by the court, and in 2018 issued an official apology for his treatment.

James A. Goldston, executive director of the Justice Initiative, and lead lawyer in the case, said:

"When the government issued its apology, I made it clear that the conduct at issue was illegal, not merely ‘improper,’ and thus requires a thorough investigation. I also noted that the government had yet to open a formal criminal inquiry into what happened, or to hold anyone to account.”

Even before the apology was issued, the Justice Initiative had stressed before the Committee of Ministers that “a public apology does not absolve the authorities of their obligation to conduct an effective investigation.”

The el-Masri case was the first in a series of rulings by the ECHR regarding European participation in the CIA in the program of extraordinary rendition and torture launched after the attacks on the United States of September 11, 2001. The Court has also ordered Romania, Lithuania and Poland to carry out effective investigations into secret detention, torture and rendition in cases involving Abd al-Rahim al-Nashiri and Abu Zubeidah, both now detained at the U.S. military base in Guantanamo Bay, Cuba. 

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