Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states
AS/Jur (2006) 16 Part II
7 June 2006
Committee on Legal Affairs and Human Rights
Draft report – Part II (Explanatory memorandum)
Rapporteur: Mr Dick Marty, Switzerland, ALDE
C. Explanatory memorandum
by Mr Dick Marty, Rapporteur
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 well-defined 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 anti-terrorism investigation targeting precisely the Milan mosque217.
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 national legal systems and European standards relating to respect for human rights218. Such passivity on the part of European governments and administrative departments is disturbing, and such a careless, laisser-faire attitude unworthy.
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 religious activism, which are contrary to the European Convention on Human Rights (ETS no 5) and the protocols thereto, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS no 126), and the Framework Decision of the Council of the European Union219.
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 protecting human lives220. 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 adopted by common consent221. 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 particular222. 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 Agreement223.
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 Criminal Court224. 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.
261. The American administration states that rendition is a vital tool in the fight against international terrorism225. We consider that renditions may be acceptable, and indeed desirable, only if they satisfy a number of very specific requirements (which, with a few exceptions226, 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 secret detention was a form of torture227.
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 anti-terrorism strategy to consider political and social aspects. Above all, we must be mindful of the strength of the values of the society for which we are fighting228. Benjamin Franklin inevitably comes to mind, and his approach seems more relevant than ever: they that can give up essential liberty to attain a little temporary security deserve neither liberty nor safety229.
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).
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.
222 The captured terrorists of the 21st 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.
225 Rendition is a vital tool in combating transnational terrorism (Ms Rice, in her statement of 5 December 2005).
226 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.