First decision of ECtHR on victims of the war on terror

The European Court of Human Rights made the judgment in a case on gross human right violations committed in the course of the global war on terror by European countries.

In the case of Khaled el-Masri against the former Yugoslav Republic of Macedonia (application no. 39630/09) the ECtHR’s Grand Chamber has found a number of violations of the European Convention on Human Rights. It is the first judgment of the Strasbourg Court in a case of this type.

“It is a landmark decision which shows that issues of basic human rights violations committed during the so-called ‘war on terror’ started after the 9/11 attacks are of fundamental importance for the ECtHR”, says Dr. Adam Bodnar, HFHR’s Deputy President.

Khaled El-Masri, a German national of Lebanese origin, was arrested by Macedonian authorities in December 2003. For the next 20 days he was detained in a Skopje hotel and subjected to a series of interrogations. Later, Mr El-Masri was transported to the Macedonia capital’s airport where, having been severely beaten, he was transferred to the custody of CIA agents who flown him to Salt Pit base in Afghanistan. For the subsequent four months he was brutally interrogated and tortured. In 2006, the German Chancellor Angela Merkel, after a meeting with the US Secretary of State Condoleezza Rice, officially confirmed that the US mistakenly took Khaled El-Masri for a terrorist suspect.

The European Court of Human Rights concluded that Mr El-Masri’s treatment in the hotel, and later at the Skopje airport, amounted to inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights. The Court also found that the Government of Macedonia was responsible for transferring the applicant into the custody of the US authorities, despite the risk of Mr El-Masri being subjected to torture and inhuman treatment at the Salt Pit prison in Afghanistan.

“The ECtHR found a number of violations of the European Convention on Human Rights”, says Irmina Pacho, Coordinator of the programme “Observatory of CIA activities in the Republic of Poland”.

The Strasbourg Court held that the El-Masri’s arbitrary detention in a Skopje hotel and his illegal transfer to and incarceration in Afghanistan was a violation of the applicant’s rights under Article 5 of the Convention. Moreover, the ECtHR found a violation of the procedural aspect of Article 5 consisting in the Macedonian authorities’ failure to effectively investigate the conditions of Mr el-Masri’s detention. In the Court’s opinion, the authorities also violated the applicant’s right to private and family life under Article 8 of the ECHR. The applicant’s inability to seek justice before Macedonian courts deprived him of the right to an effective remedy, in violation of Article 13 of the Convention.

Before Mr el-Masri brought the case to the ECtHR, he had unsuccessfully attempted to vindicate his rights in Macedonia, Germany and the United States. He even filed a petition to the Inter-American Commission on Human Rights. Yet it is the European human rights protection system that proved an effective mechanism for obtaining justice by a victim of the war on terror.

“The judgment proves that European states, including Poland, may find it difficult to escape responsibility for their collaboration with US covert agencies in operations against the global terrorism”, observes Dr. Bodnar.

In 2012 the ECtHR communicated to the Polish government the case of al-Nashiri against Poland which involves the use of torture and illegal detention in a clandestine CIA facility in Poland.