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 numerous victims and large-scale attacks, particularly in Italy1
, Germany, Spain, the United Kingdom, France and, more recently, Russia.
While the states of the Old World have dealt with these threats primarily by means of existing institutions and legal systems2
, 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 President Bush on 13 November 20013
. 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 already in prison on that day, and had been in the hands of the justice system for several months4
. 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 prefers to interrogate bigger fish in terrorism cases rather than charge them5
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 removing one’s name from the list6
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 administration7
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 in these terms to the Government of the United States of America8
. To our knowledge, no reply has been received to date.
The UN Committee against Torture has also called for the closure of the Guantanamo Bay detention facility in recent times, criticising its secret character and the denial of access to the ICRC9
.Secret CIA prisons in Europe?
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.
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 President Bush10
.The Council of Europe’s response
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.
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 work11
. These revelations had met with curious indifference from both the media and governments and political circles in general.European Parliament
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 allegedly been detained and tortured12
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.
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 extraordinary renditions”13
. 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 European states”14
. The Temporary Committee proposes to continue its work15
.Excerpt from the Council of Europe Report / Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states
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