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Professor Julian Ku jumps the shark

International Law Professor Julian Ku has produced a very nice logical fallacy. He claims that Amnesty International (AI) has “jumped the shark” in presenting the Canadian Government with an 1,000 page memorandum, claiming Bush’s “responsibility for crimes under international law including torture.” According to AI, Canada has a legal obligation, during his visit, “to arrest and prosecute [or extradite] former President Bush given his responsibility for crimes under international law including torture.” This obligation arises at least from the “United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”

I have asked professor Ku to illuminate his claim, by refuting the AI’s legal argument. How can he refute the argument? It’s so simple:

According to Article 38 of the International Court of Justice statute, the sources of International Law are:

“a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”

Thus the only thing that professor Ku has to do is to show us a convention, custom, general principle of law, judicial decision or teachings of the most highly qualified publicist that absolves a former U.S. president of any international criminal responsibility. Or to show us that Canada does not have the legal obligations claimed by AI.

Professor Ku did not considered worth it of his time to substantiate his claim that AI jumps the shark, thus I have to reconstruct his argument myself. It is probably something like the following:

Premise 1: All 1,000 page memoranda, claiming that a former U.S. president is individual responsible for international crimes, jump the shark.
Premise 2: Amnesty International has produced a 1,000 page memorandum claiming that a former U.S. president is individual responsible for international crimes.
Conclusion: Therefore Amnesty International jumps the shark.
QED.

If anyone has a better reconstruction of the probable argument, please enlighten me.

 

Published inInternationaal RechtRechtbank voor AllenSofist Factory

19 Comments

  1. It is difficult to respond to such audacious legalism without common sense but abstain from using words that generally shut down conversation. Most of the time I would not bother trying but as your name seems to indicate you are a co-ethnic, a foolish sense of solidarity compels me to try.

    I think that you misunderstand “jumping the shark”. It is shorthand for “you have told a tale that no matter how technically true or funny or otherwise compelling it might be, is so ridiculous that I just don’t care what comes from you, ever again” Happy Days immediately became irrelevant to the TV viewing public in the US and never recovered from the incident. Thus the problem is not in the first instance the legal argument. It is the externalities that AI is creating in its fantasy of prosecuting President Bush. By setting this up as a study in legalism, you set up your own logical fallacy. It is called the “straw man”.

    There is a thing called prosecutorial discretion. Some crimes can technically be charged but the prosecution would take so many resources and would lead to such bad externalities that the prosecutor is charged to wisely hold off exercising his office. This is such a case.

    If one were to wish to wreck the entire international system, it would be difficult to pick a better stress point than ignoring diplomatic immunity, snatching, and undertaking the prosecution of a former president of the United States. Maybe doing it to a sitting US president might be more effective but I can hardly see the difference in practical terms.

    The current President would be immediately charged with getting President Bush back upon pain of an electoral drubbing that would possibly entirely wreck the Democrat party as a going concern. If there is anything certain in US politics, it is that President Obama would like a 2nd term. There is not a prison in the world that could hold President Bush under those circumstances. Any nation holding him would soon find itself at war with the US.

    The political fallout would wreck the current international system and empower the isolationist currents that are already in the ascendency here. It would shift the US radically to the national security right in ways that you probably cannot even conceive. If you could, you would never support AI in this effort.

    In any reasonable prosecutorial priority system, even if the entire brief that AI presents is true (and I do not grant that), President Bush would be far, far down the list of world leaders to indict and try. This adds the further difficulty of selective prosecution to the practical need for prosecutorial discretion. Or is avoiding selective prosecution not a principle that international law recognizes?

  2. Mihai Mihai

    @TMLutas

    Diplomatic immunity works only for state officials in office. See Pinochet, that would be tried in Brattain or Spain. See ICJ Congo v. Belgium and Belgium v. Senegal. If Pinochet would be tried, why not Bush?

    The rest of your argument is just another fallacy, an ad baculum. It just says that the police should not arrest Al Capone, since his mates would get angry and might kill police officers and judges, as they do in Italy.

  3. Who did try Pinochet? In the end it was neither Britain nor Spain. And a whole generation of tyrants are much harder to talk into giving up power because of the precedent. Does judge Garzon accept any responsibility for the subsequent difficulties? I doubt it. Does he bear responsibility for the extra deaths? I do believe it.

    An argument for prosecutorial discretion is not an ad baculum. It says nothing about the truth value of whether or not Bush is guilty. It merely says that you’re a moron to undertake actions that would result with high probability in wrecking the current international system upon which the prosecution would depend. Now prosecutors, even judges can be morons but they shouldn’t be. And that’s what the whole “jump the shark” term is about. Happy Days was discredited, its viewership bled out, never to return. Such a discrediting is a visceral matter.

    In your Al Capone analogy, an ad baculum would not be not arresting Capone because it is imprudent. It would be saying Capone is innocent because if he weren’t, police officers and judges might die. That’s not quite the same thing.

    Your analogy also falls because even at the height of his power, Capone never could have fully overwhelmed the law. All he could have done was provoke martial law. A better analogy is the lone marshall asked to arrest a sheriff with a staff of a dozen deputies over the niceties of the sheriff’s actions in going after a lawless gang. The likelihood of success is low. The penalty of failure is high. Even if success is achieved, has the law or lawlessness won out as the sheriff’s force sits out the next time a gang comes to town? Have you no concept of a Pyrrhic victory?

  4. Mihai Mihai

    ==Who did try Pinochet?==
    He was returnd to Chile on grounds of sickness: en.wikipedia.org/wiki/Augusto_Pinochet’s_arrest_and_trial
    Otherwise he would have been tried
    “The Pinochet Precedent refers to the famous 1998 decision from the United Kingdom House of Lords that followed a request for the arrest of the former dictator to the British authorities by Spanish investigative judge Baltasar Garzon who was investigating cases of torture committed by the Pinochet regime against Spanish citizens. After a first decision (later annulled) which stated that although a former head of state enjoys immunity for acts committed in his functions as head of state, international crimes such as torture and crimes against humanity were not “functions” of a head of state,” a second decision was made which claimed that “once Britain and Chili had ratified the UN Convention Against Troture, Pinochet could not claim immunity for torture,” effectively annulling ratione materiae immunity (that is, immunity for offical acts of State).”
    http://www.theinternationaljurist.org/2011/02/10/the-pinochet-precedent-haunts-george-w-bushs-steps

    “The Supreme Court ruled in favor of judge Juan Guzmán’s request on August 2000, and Pinochet was indicted on 1 December 2000 for the kidnapping of 75 opponents in the Caravan of Death case[68]. Guzmán advanced the charge of kidnapping as the 75 were officially “disappeared”: even though they were all most likely dead, the absence of their corpses made any charge of “homicide” difficult.

    However, in July 2002, the Supreme Court dismissed Pinochet’s indictment in the various human rights abuse cases, for medical reasons (vascular dementia)”
    http://en.wikipedia.org/wiki/Augusto_Pinochet#Return_to_Chile

  5. On further reading, the doctrine of “functional immunity” and not “diplomatic immunity” was what I should have said former President Bush has. I got the immunity right, just the label wrong. I regret the error.

    The details of the “illness” findings make it pretty clear that what was being done in the Pinochet case and what was said to have been done were two different things. The legal systems of all three countries were twisted in pretzels to make a certain outcome happen, to give cover for enough factions so that there would not be political breaks and the judicial system would “progress” in a particular way with precedential value.

    There’s only one problem, they set up a fine fishing rig for a small fish, a medium fish maybe could be captured this way, but a big fish? No, the lines are too fine. And a former US president is about as big a fish as you can hook. And the timing is about as lousy right now as it was good at the time of Pinochet’s prosecution.

    The United States of America is politically different, in actuality, then what is generally described in Europe. The news you get over there is almost entirely via “blue” sources, which in a US context means left sources of the peculiar sort of leftism that exists in the US. “Red” sources are either without international ambition at all (US talk radio) or are oddly tailored due to business models (FOX news) or are simply too new and too small to have much international reach (Pajamas, Right Network, other bloggers). Usually the results of these ideological blinders are amusing ignorance at dinner parties. In this particular case, the results could be deadly.

    The jacksonian political faction is up for grabs and it is pivotal electorally. The red coalition (Republican party) is making an economic case for its loyalties due to poor performance of the blue coalition since it took control of spending in 2007 and got the Presidency and the Senate in 2008. The blue coalition (Democrat party) is appealing to it in martial fashion through assassination of foreign enemies.

    The prize is the US government in 2012 and perhaps beyond. The jacksonian sense of national honor makes it impossible for Barack Obama to abandon George W Bush and survive the election. Obama is a political creature that even most americans do not viscerally understand, outside those who live in the political orbit of the peculiar political culture of Chicago, IL. Obama will go out and break the necessary heads to have a chance at a second term. There are no other grounds for him to appeal to in order to stitch together his electoral coalition unless Herman Cain wins the GOP nomination. Then we’re all going to be “treated” to the insane situation of two black people deploying racial code talk against each other.

    Bring the popcorn, it would be a show. And if you find it too improbable, this is already started with Thomas Sowell carrying Cain’s message on TV and Lawrence O’Donnell carrying the Obama race attack on Cain.

    George Bush *looks* to be a perfect US candidate to establish exactly the principle you assert, as unpopular as Truman was when he left office, AI, itself steeped in the blue cultural bubble, thinks he can be gotten without arousing a US military response. I predicted that George Bush would have a rehabilitation faster than Truman and it seems to be unfolding apace. “Miss me yet?” paraphenalia is selling well and his polling is improving faster than I would have thought possible.

    The possibility of US legal reinvigoration of letters of Marque and Reprisal as a constitutional doctrine under a President Paul makes things sticky for those who wish to establish a system where any head of state can be tried after he leaves office. It would permit useful military action without having to control the US presidency and would be *more* workable the more corrupt Congress is. A Paul win seems actually possible this time around if Cain flames out and Romney continues to defend Romneycare. The electoral calculation will determine almost everybody’s moves from now through the end of next year.

  6. Mihai Mihai

    I don’t believe ‘realist’ talk. I have just been reading the following:

    “At a 1987 international colloquium devoted to the Nuremberg trials Professor Eric David posed a hypothetical question — could Augusto Pinochet be arrested and tried in Belgium for acts such as enforced disappearances, extrajudicial executions, torture and unlawful detention committed since his ascendance to power? While Professor David answered in the affirmative, at the time it was only academic conjecture that such a scenario could ever come to pass. And yet, just over a decade later, his hypothetical question proved to be prescient.”

    ICC-judge Stefan Trechsel confessed to me in one mail that 30 years ago he didn’t believe there will ever be an ICC.

    William Smith, a realist that predicted that slavery will never be abolished, gave the following oration at Charleston in 1796 about the American Constitution: “Among the wonders which no human research can fathom, even in these days, with all the miseries of anarchy before our eyes, there [are] still to be found political speculatists, who deriving their ideas of government from abstract theorems, and estimating man more by what he ought to be, than what he is, [wish] to erect an Utopian constitution on a sandy basis.”

    I don’t see any reason Obama would invade Canada, a NATO partner. That would alienate the rest of the NATO, since if Canada is not safe, nobody is safe anymore.

    U.S. only invades defenseless countries. Google for a list of the ‘intervened’ countries in the last 100 years, and you’ll see what I mean. Canada would also put up a good fight, and, inspired by the guys in Afghanistan and Iraq, U.S. will have to cope with countless terrorist attacks. Nobody has won a guerrilla war.

    Canada is one of the main economic partners and energy providers, thus the economic loss for U.S. would be huge. The Wall Street guys, that control the government, care more about their money than about Bush. The invasion of Afghanistan and Iraq produces a cost of 5000 billion and it already brought the country on the brink of economic collapse.

  7. Mihai Mihai

    And if you want more realist talk here it comes: There is more sympathy for Canada than for U.S. in the rest of the NATO. “Europeans consistently regard the US as the biggest threat to world stability, a new poll reveals on Monday.”
    http://www.ft.com/intl/cms/s/0/70046760-27f0-11dc-80da-000b5df10621.html#axzz1bQPwEA4S

    This will be used by smart politians to create a new enemy, since they miss one after the collapse of the Soviet Union, thus to unite the Europeans, that don’t feel very connected.

    It will also move Europeans closer to China. And it would strengthen the new Russian-Chinese-Indian alliance.
    http://ipsnews.net/news.asp?idnews=79702
    http://www.fpif.org/articles/pushback_to_unilateralism_the_china-india-russia_alliance

  8. You persistently misinterpret what it means to jump the shark and merrily slay straw men along the way. Again, jumping the shark is not an accusation that one is wrong about the law. Jumping the shark is about making oneself too ridiculous to be taken seriously anymore. You’ve yet to take that into account in any of your responses. You’re still working on this as if this solely is a matter of law and logic instead of it also being a matter of sentiment, practical political calculation, and matters of national honor.

    The link about the US being the biggest threat to world peace was from 2007. That seems a bit stale, no? Funny enough your other link about the Russian/Chinese/Indian alliance is from 2007 too. The world’s moved on a bit. We got a less unilateral president about 3 years ago. The Chinese are currently scaring everybody with belligerent moves in the South China Sea and elsewhere. While the US is making some of its own belligerent moves currently, they’re mostly playing stirrup man in Europe’s war in Libya.

    I’ll leave the last word on the Canadian matter to the RCMP, “There is no lawful authority for the police to arrest Bush”.

  9. Mihai Mihai

    ==Jumping the shark is about making oneself too ridiculous to be taken seriously anymore. You’ve yet to take that into account in any of your responses. ==
    Exactly. And there is nothings ridiculous in AI demanding that the law should be respected. If AI asks China to free AI Wei Wei, AI should ask Canada to try Bush. It is no more ridiculous than asking the rebels in Libya to investigate whether the killing of Gaddafi was a war crime. I was in such a revolution and if I had caught Ceausescu, our tyrant, I would have lynched him on my own. But I don’t find it ridiculous that AI demands such investigation. Asking Canada to try Bush is no more ridiculous than asking Myanmar to release prisoners of conscience, or to ask Kenya to arrest Bashir. It is where the International Law is going and it goes in that direction only if people demand it, not if AI remains silent. It is rather ridiculous that Professor Julian Ku has missed the train of his own trade.

    ==You’re still working on this as if this solely is a matter of law and logic instead of it also being a matter of sentiment, practical political calculation, and matters of national honor.==

    Why should I care about sentiment, political calculation and national honor? Those tortured by Bush and their mothers, fathers and children have feelings as well. The relatives of those murdered by Bush as well. I know the sentiments one has when a criminal is above the law myself, thus I understand better the sentiments of the victims than the sentiments of those who profit from Bush’s crimes. If we had to choose between the sentiments of the victims and those of the criminals and those who sympathize with the criminals, by asking more than the criminals should get a fair trial, we should sympathize with the sentiments of the victims.
    And political calculation should not be a good argument. “Some explanations of a crime are not explanations: they’re part of the crime.”, Olavo de Cavarlho

    The same goes about national honor. When Iraq invaded Kuwait, we didn’t care about the honor of the Iraqis, we just kicked their asses out of Kuwait. Their national honor was their own problem

  10. Yes, AI is ridiculous because it is selective in its demands against former Presidents. Part of the law is always about making choices regarding prosecutions. If everybody speeds, it is not admissible to just pick somebody out of the pack and only give them a ticket because you don’t like a bumper sticker on their car. This is called selective prosecution. Every year the US should be receiving dozens of requests from AI to arrest this or that head of state as they come to NY to visit the UN. It just doesn’t happen. And I strongly suspect that Ku is right that President Obama isn’t going to be hounded the same way. I don’t think President Clinton has been even though Clinton also had accusations against him that he is a war criminal.

    Selective prosecution destroys respect for the law. Eventually it destroys the law itself.

    Going after heads of states once they step down destroys the ability to talk them down into a comfortable retirement instead of killing tens of thousands in a bloody exit. I think that such an option should be preserved. Do you recognize how every dictator that is dirtier than Bush (that is to say, all of them) will be harder to talk into a well funded exile because of AI’s actions?

    I do not recognize that President Bush is a murderer. It’s questionable whether he signed off on actual torture. The memos authorizing enhanced interrogation techniques were written in order to avoid interrogators going off the deep end. They were there to provide limits in an environment where the US knew that it was far too ignorant of its enemies. Where these limits were violated, prosecutions followed.

    The large majority of the techniques in the Yoo memos are clearly not torture in my opinion. I believe that the US went right up to the line of what is permissible. Did they go over it? I actually don’t know. I’ve seen people volunteer to be waterboarded and come out of the experience saying both yes and no to the question of whether it is torture. If it *is* torture, there should be prosecutions for our use of it in SERE in training exercises on our own troops. But nobody seems to take that position. It’s an inconsistency in the “human rights” position that I never understood.

    I have observed is that everybody I’ve encountered so far who is sure that the Yoo memos are torture are utterly unwilling to redo them properly. In the case of a national emergency when you’ve figured out your intelligence is sorely lacking, what shortcuts can be taken without becoming torturers?

  11. Mihai Mihai

    ==Yes, AI is ridiculous because it is selective in its demands against former Presidents.==

    You have to prove that AI is selective.
    “Central African Republic must arrest Omar al-Bashir during visit”
    Malawi must arrest Sudan’s al-Bashir during visit
    Here AI asks to arrest Milosevic.
    By the way Milosevic said the same, that the world is selective and everyone hates Serbs.

    “Amnesty International is repeating its call to the Nigerian government to arrest Charles Taylor”
    Pinochet must go to Spain, says Amnesty

    “Senegal: Government must immediately arrest and extradite Hissène Habré to Belgium to face crimes against humanity charges”

    “In December 1994 the Haitian police attempted to arrest Avril at his home, but were thwarted by the appearance of US soldiers, who caused sufficient delay that Avril was able to escape….Amnesty International said his arrest could be step forward for Haitian justice, and called for Avril to be tried for the grave human rights violations committed under his Presidency”
    http://en.wikipedia.org/wiki/Prosper_Avril

    “Haiti: Bring Jean-Claude Duvalier to justice”

    So prove that AI only wants Bush to be arrested because of his bumper sticker.

  12. Mihai Mihai

    @TMLutas

    By the way, saying that AI is selective is a Tu Quoque. Imagine that the police in New York is selective. It arrests only blacks raping white women and never arrests white men raping black women. Does this selectiveness give the black men the right to rape white women or to get away with their crime?

  13. The original discussion (remember that?) was about whether Amnesty International jumped the shark. It is perfectly possible for AI to have done so whether or not President Bush is guilty. By changing the subject away from your chosen original you’re saying something important about the strength of your case.

    For a selective prosecution regime to exist, it is a straw man to point out that other disfavored national leaders are also prosecuted. Pulling over all speeding cars with a certain style of bumper sticker is no proof that one is even handed in law enforcement. Even in the events related to President Bush, you can’t honestly run a thousand pages without involving the network of other national leaders, you know, pretty much everybody in the EU and much of the OIC.

    Normal police work, you run from the bottom to the top and secure convictions to build a case against the higher ups. AI is missing a lot of indictments if its case against President Bush is true.

  14. Mihai Mihai

    @TMLutas
    The burden of proof is on your side. You have to prove that AI jumped the shark. Up until now you have not proven anything. You just assumed that AI is biased. So please prove that AI is biased. And even if you could prove that, you still don’t have any argument. The black raping white women deserve to go to jail even if the New York police is biased. So what your really have to prove, is that the AI’s argument is legally wrong. And you have not proven that either.

    And you can prove that only in a court of justice. Since if you believe that someone commits or committed great crimes against you, you would only accept the decision of a court that he is innocent.

    Imagine that a cataclysmic catastrophe destroys much of the Earth. Most of the continents sink beneath the waters and a new continent arises from the ocean. You and a group of people from all over the world survive the catastrophe and colonize the new continent.

    For a while, there is no state, there are no laws, no judges and no courts. People divide the land into farms and try to rebuild their lives as best as they can. We could call this the state of nature.

    In this state of nature, a conflict arises between you and your neighbor. You notice that the fence between your farms is frequently moved, to your disadvantage, making your territory smaller and your neighbor’s larger. Mister S. Mart, hereinafter referred to as Smart, your neighbor, denies that he has anything to do with it, or, indeed, that it even happens. After a while, your stock starts dying out since there is not enough grass and hunger leads to the death of some of your children.

    Then a new incident occurs. Mister Smart kills your twelve year old daughter and sells her organs; at least, this is what you are pretty firmly convinced is the case, especially since you have seen it yourself, together with several witnesses.

    By chance, it was filmed from different angles. You also have similarly compelling evidence that he has sold her organs. You confront Smart with your argument, but he denies that he has committed a crime.

    Confronted with your accusation, he replies using one or more of the following arguments:

    1. ”You are a little bit short-sighted, your cameras are flawed and all your witnesses are unreliable junkies who cannot discern the difference between a human and a cow.”

    2. ”Yes, indeed, I took her life, and I feel the pain very deeply, I feel compassion and I am empathic with you, but I could not do otherwise”. He then adds one of the following:

    o ”She attacked me with a weapon and I had to defend myself.”
    o ”I have suffered terribly unfortunate brain damage and lose control of myself sometimes.”
    o ”I didn’t sell her organs, but used them for seminal scientific research and have discovered a cure for a sickness that will save the lives of billions of children in the future, children who would otherwise die before they were ten. It is the same sickness that your other two children have, and thus I could save them.”

    3. ”The whole story is a mendacity intended only to destroy my magnificent self. You are just jealous of my freedom, my money, and my moral and intellectual superiority.”

    Given the situation, and as the reasonable person you are, you try to remain tranquil. You propose to Smart that you take the matter to a competent, neutral and detached, third party with as few interests at stake as is possible; namely, to a judge or some kind of a court. This new, first-enacted judge should look at the evidence and decide who is right and what should be done. Her decision should be binding on both of you. If the judge decides that the fence should be moved to the old location, Smart should abide without reservations. The same should happen if the judge finds him guilty of the killing; he should accept the punishment and/or the payment of compensation.

    It goes without saying that you pledge to resign yourself to any decision unfavorable to you.

    Smart reacts with indignation at the accusation leveled against him and at the waste of his valuable time and says that he is not going to let a judge make the final decision, since he is good and certain that his argument is more than solid.

    In short, he demands the freedom to be the sole arbiter in respect of his guilt.

    This is precisely what U.S. does, claims to be the sole judge of its actions. But its alleged victims will never accept that, without the decision of a neutral judge.

  15. A charge of “jumping the shark” is self proving. I certainly don’t take them as seriously, and feel a bit of sorrow at their lessened stature.

    So how was Pres. Bush’s Canadian arrest? I missed the press accounts. I seem to not be alone in my opinions on AI’s Bush dossier.

  16. Mihai Mihai

    @TMLutas

    Now you have to explain to me why the guys tortured in Abu Ghraib, or abducted, inprisoned without trial, tortured and killed on Gunatanamo should not blow Bush up whenever they get the chance, or some American or Canadian tourists.

  17. I *have* to explain? That only happens when my consulting clients pay my fees.

    If a head of state were subject to international prosecution every time a jailer tortured a prisoner, was caught, went through a trial, conviction, and prison term, no head of state would be safe. Your standard on Abu Ghraib means you’ve just jumped the shark.

    The bottom line is that the US was dangerously exposed for quite some time intelligence wise and there was a scary moment on 9/11/2001 when everybody realized it. The US moved as fast as it could to close that intelligence gap and took off a lot of their “good prisoner treatment” safeties temporarily until the gap was closed. The gap’s now closed and the safeties are going back on with an eye not to put so many of them on that the intelligence gap grows once again.

    This sort of a situation is qualitatively different both in approach and effect than what is traditionally viewed as worthy of an international tribunal, much less the street revenge you seem to be contemplating as potentially justified.

    And with this, Mr. shark jumper, I will leave you to have the last word.

  18. Mihai Mihai

    @TMLutas

    If a state tortures me, abducts me and puts me in prison without the minimal guarantees of fair trial, or kills one of my relatives, there are only two possibilities:

    (1) I can either sue the state/the head of the government or
    (2) I am free to kill the head of the state or to commit a terrorist attack like on 911

    Read the story with mister Smart. Nobody could claim to be free to do to me whatever he wants, refuse to cooperate in enacting a court where some judge gives the last and binding decision, and at the same time claim that I’m not free to kill him. It’s that simple.

  19. Mihai Mihai

    Look, the Europeans are much more civilized, allowing individuals to sue the states for human rigts violations:

    http://www.asil.org/insights111102.cfm
    Outside the United States, Extraordinary Rendition on Trial
    By Alka Pradhan
    Introduction

    Three pending cases before the European Court of Human Rights (“ECtHR”) highlight allegedly illegal acts committed by European countries in connection with the U.S. extraordinary rendition program. The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.[1] The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland.[2] While El-Masri was freed in Albania in 2004,[3] al Nashiri remains at the U.S. Naval Facility at Guantanamo Bay, Cuba, where U.S. military commissions prosecutors are preparing the first capital case against a Guantanamo detainee for his alleged role in the 2000 bombing of the U.S.S. Cole. The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site.[4] Abu Zubaydah also remains imprisoned at Guantanamo Bay, although there has been no indication that he will face a trial by military commission, and the U.S. government has withdrawn all allegations that he was a member of Al Qaeda or affiliated with the September 11, 2001 terrorist attacks.[5]

    This Insight provides an overview of the first two cases and assesses their potential to hold accountable the alleged perpetrators of the illegal rendition practices.

    Background

    The cases are compelling as much for their differences as their similarities. According to his application for relief before the ECtHR, El-Masri, a German citizen of Lebanese descent, was arrested in Macedonia in December 2003 and detained there incommunicado for twenty-three days.[6] During that time, he claims to have been continuously questioned about his background and religion.[7] On the last day of his imprisonment in Macedonia, El-Masri claims that he was beaten and sodomized by CIA agents while Macedonian agents stood by; he was then allegedly blindfolded and put in a diaper to board a waiting airplane.[8] Flight records show that on January 23, 2004, El-Masri was flown to Afghanistan on a CIA-chartered plane.[9] He was allegedly held there in U.S. custody for four months, without access to counsel or communication, before being flown to Albania and released without explanation in May 2004.[10] When he returned home to Germany, he found that his family had relocated after his disappearance.[11] Subsequent investigations have determined that the U.S. government learned that El-Masri, who had the same name as an Al Qaeda operative, was not the individual wanted in March 2004.[12]

    By contrast, al Nashiri, a Saudi national and senior Al Qaeda operative, allegedly organized the bombing of the U.S.S. Cole in Yemen in 2000.[13] Al Nashiri was captured in Dubai in October 2002 and almost immediately rendered, in U.S. custody, to CIA-run prisons in Afghanistan and Thailand, where he was waterboarded.[14] In early December 2002, al Nashiri was transferred to the CIA’s secret prison in Poland.[15] While in Poland, al Nashiri was allegedly subjected to several abusive interrogation methods, including stress positions, mock executions, and threats of harm to his mother.[16] Then-president George W. Bush also indirectly acknowledged al Nashiri’s detention in a 2006 speech.[17] In 2008, after being detained in several other sites, al Nashiri was transferred to Guantanamo Bay, and, in April 2011, military commission prosecutors filed capital charges against him for his involvement in the U.S.S. Cole bombing and the 2002 attack on a French oil tanker in the Gulf of Aden.[18]

    Charges Under the European Convention on Human Rights

    El-Masri’s Convention Claims

    El-Masri’s petition alleges that Macedonia violated Articles 3, 5, and 13 of the European Convention on Human Rights (“Convention”). He alleges that Macedonia violated his Article 3 rights (prohibition of torture or inhuman or degrading treatment or punishment) by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.[19] Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

    Al Nashiri’s Convention Claims

    Al Nashiri’s petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty).[20] The Polish government’s alleged illegal acts include permitting al Nashiri’s incommunicado detention, cooperating with CIA agents in his transfer from Poland despite the risks of further ill-treatment and/or the death penalty, and failing to conduct an effective investigation.[21]

    The Court

    The ECtHR was established by the Convention as a means of enforcing member states’ obligations.[22] Forty-seven European states currently submit to the jurisdiction of the ECtHR, which has jurisdiction to adjudicate inter-state applications and applications from individuals against member states; the Court can also issue advisory opinions.[23] Both Poland and Macedonia are member states. For each case, the ECtHR may undertake its own investigations, and member states are expected to fully comply with the Court’s requests for evidence.[24]

    If the ECtHR accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the ECtHR. Should the Court find that a member state has violated the Convention, the ECtHR may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.[25] Chamber judgments may be appealed to the “Grand Chamber,” whose judgments are final.[26] Because the United States is not a party to the ECtHR, it is not named in the applications. However, if the United States decides to participate in the proceedings, the Court has the discretion to allow a third party to intervene in the form of written comments.[27]

    Distinctions Between the Cases

    El-Masri’s case is perhaps the most well-known of all former U.S. detainees, in particular because it involved a man who turned out to be “innocent.”[28] Subsequent to his detention, El-Masri filed lawsuits in U.S. federal courts, a petition before the Inter-American Commission of Human Rights (“IACHR”), and issued a testimonial before the United Nations Human Rights Committee in an effort to compel accountability.

    The U.S. lawsuit,[29] brought against former CIA director George Tenet and the owners of the CIA rendition planes, was dismissed at the district and appellate levels under the legal doctrine of “state secrets privilege.”[30] The U.S. Supreme Court also rejected his petition for writ of certiorari[31] without comment.[32]

    El-Masri’s 2008 petition before the IACHR asks for a finding that the U.S. rendition program violates the American Declaration of the Rights and Duties of Man and that El-Masri’s rights were violated under the Declaration.[33] However, the United States has not yet responded to this petition.
    While El-Masri’s 2006 testimonial before members of the UN Human Rights Committee highlighted the rendition program and resulted in the questioning of the U.S. delegation about his then-widely-reported case, the United States refused to comment.[34] Investigations and inquiries continue in Germany and Spain, where prosecutors invoking universal jurisdiction have asked for arrest warrants to be issued for the CIA agents involved in El-Masri’s rendition.[35]

    El-Masri’s case before the ECtHR may be strengthened by the allegation that Macedonian authorities detained him incommunicado for twenty-three days before turning him over to the CIA. Arguably, this implies direct mistreatment by Macedonia. In contrast, while Poland allegedly enabled the U.S. agents in al Nashiri’s rendition and detention, Polish authorities do not appear to have been directly in contact with al Nashiri.

    Al Nashiri’s case also differs from El-Masri’s in that his petition urgently requests that Poland intervene to prevent the possible imposition of the death penalty.[36] Poland has signed and ratified Protocol 6 to the European Convention, which abolishes the death penalty,[37] and the ECtHR has previously ordered a member state to “use diplomatic channels” to protect applicants from the death penalty.[38] Thus far, there has been no response from the Polish government to al Nashiri’s request.

    It should also be noted that both men have initiated domestic proceedings in Poland and Macedonia respectively, seeking remedy for their renditions; but their petitions have either been dismissed[39] or ignored.[40] Following the dismissal of El-Masri’s claims in the United States, along with numerous other rendition-related cases, on the basis of state secrets, al Nashiri will unlikely obtain a remedy in U.S. courts for any alleged mistreatment.[41] Both El-Masri and al Nashiri’s last opportunity for recourse from national governments for their treatment thus lies with the ECtHR.

    Conclusion
    Much is made of the fact that al Nashiri is a known Al-Qaeda operative whose interrogation was important for intelligence gathering, and El-Masri is apparently an “innocent” man. However, the importance of the present litigation before the European Court of Human Rights is that it seeks to maintain the legal distinction between crimes committed by al Nashiri (and previously suspected of El-Masri) and the alleged crimes committed against them. In other words, if these cases progress, and if the ECtHR finds Poland and Macedonia in violation of the Convention, both men will share their status as victims of the extraordinary rendition program.

    About the Author: Alka Pradhan, an ASIL member, is Counsel for The Constitution Project’s Task Force on Detainee Treatment. She holds a J.D. from Columbia Law School and an L.L.M. in Human Rights from the London School of Economics.

    The views expressed in this ASIL Insight are those of the author and do not necessarily reflect those of the Task Force on Detainee Treatment

    Endnotes:

    [1] El-Masri v. Macedonia, App. No. 39630/09 (Eur. Ct. H.R. Sept. 18, 2009), available at http://www.soros.org/initiatives/justice/litigation/macedonia/Application-Public-Version-20090921.pdf [hereinafter El-Masri Application].
    [2] Al Nashiri v. Poland, App. No. ________ (Eur. Ct. H.R. May 6, 2011), available at http://www.soros.org/initiatives/justice/litigation/nashiri/echr-al -application-20110506.pdf [hereinafter al Nashiri Application].
    [3] American Civil Liberties Union [ACLU], Statement: Khaled El-Masri (Dec. 6, 2005), available at http://www.aclu.org/human-rights_national-security/statement-khaled-el-masri.
    [4] Abu Zubaydah v. Lithuania, App. No. ________ (Eur. Ct. H.R. Oct 27., 2011), available at http://www.interights.org/document/181/index.html.
    [5] Larry Siems, Old Claims, New “Understandings,” in The Torture Report (Apr. 21, 2010), available at http://www.thetorturereport.org/diary/old-claims-new-%E2%80%9Cunderstandings%E2%80%9D.
    [6] El-Masri Application, supra note 1, at 5.
    [7] Id.
    [8] Scott Horton, The El-Masri Cable, Harper’s Mag., Nov. 29, 2010, available at http://harpers.org/archive/2010/11/hbc-90007831.
    [9] El-Masri Application, supra note 1, at 16.
    [10] Id. at 22-31.
    [11] Id. at 32.
    [12] See Lisa Myers & Aram Roston, CIA Accused of Detaining an Innocent Man: If the Agency Knew He Was the Wrong Man, Why Was He Held?, MSNBC, Apr. 21, 2005, available at http://www.msnbc.msn.com/id/7591918/; Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, Wash. Post, Dec. 4, 2005, available at http://www.washingtonpost.com/wpdyn/content/article/2005/12/03/AR2005120301476.html.
    [13] Al Nashiri Application, supra note 2, at 5.
    [14] Id. at 9. See also Caitlin Price, CIA Chief Confirms Use of Waterboarding on Three Terror Detainees, Jurist, Feb. 5, 2008, available at http://jurist.law.pitt.edu/paperchase/2008/02/cia-chief-confirms-use-of-waterboarding.php.
    [15] Id. at 10.
    [16] Such tactics have been confirmed. See, e.g., Central Intelligence Agency [CIA], Special Report on Counterterrorism, Detention, and Interrogation Activities 35-43 (May 7, 2004), available at http://media.luxmedia.com/aclu/IG_Report.pdf.
    [17] Off. Press Sec’y, President George W. Bush, Transcript: Speech from the East Room of the White House (Sept. 6, 2006), available at http://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3.html (“[A] small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States in a separate program operated by the Central Intelligence Agency . . . . This group includes individuals believed to be the key architects of the September the 11th attacks and attacks on the USS Cole.”). The U.S. government subsequently claimed that al Nashiri was the U.S.S. Cole bombing suspect.
    [18] U.S. Dept. Def. [DOD], DOD Announces Charges Sworn Against Detainee Nashiri (Apr. 20, 2011), available at http://www.defense.gov/releases/release.aspx?releaseid=14424.
    [19] El-Masri Application, supra note 1, at 6-7.
    [20] Al Nashiri Application, supra note 2, at 6-7.
    [21] Id.
    [22] European Convention on Human Rights art. 19, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), available at http://www.hri.org/docs/ECHR50.html.
    [23] Id. arts. 33, 34.
    [24] European Court of Human Rights, Rules of Procedure arts. A1-A2 (July 2009), available at http://www.echr.coe.int/NR/rdonlyres/D1EB31A8-4194-436E-987E-65AC8864BE4F/0/RulesOfCourt.pdf.
    [25] European Convention on Human Rights, supra note 22, art. 41. See also Ingrid Nifosi-Sutton, The Power of the European Court of Human Rights to Order Specific Non-Monetary Relief, 23 Harvard Hum. Rts. J. 51 (2010), available at http://harvardhrj.com/wp-content/uploads/2010/10/51-74.pdf.
    [26] Id. arts. 35- 36, 73.
    [27] European Court of Human Rights, Rules of Procedure, supra note 24, art. 44(3)(a).
    [28] See Priest, supra note 12. See also Marcus Brandt, Merkel Says that U.S. Admits Error in Detaining German National, USA Today, Dec. 6, 2005, available at http://www.usatoday.com/news/world/2005-12-06-ricemerkel_x.htm.
    [29] El-Masri v. Tenet, 437 F. Supp. 2d 530 (2006).
    [30] Modern use derived from United States v. Reynolds, 345 U.S. 1 (1953) (compelling exclusion of evidence that may disclose information endangering national security).
    [31] El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 (2007), http://www.aclu.org/pdfs/safefree/elmasri_cert20070530.pdf.
    [32] Linda Greenhouse, Supreme Court Refuses to Hear Torture Appeal, N.Y. Times, Oct. 10, 2007, available at http://www.nytimes.com/2007/10/10/washington/10scotus.html.
    [33] Petition Alleging Violations of the Human Rights of Khaled El-Masri by the United States of America with a Request for an Investigation and Hearing on the Merits (Inter-Am. Comm’n H.R. Apr. 9, 2008), available at http://www.aclu.org/files/pdfs/safefree/elmasri_iachr_20080409.pdf. See also ACLU, El-Masri v. Tenet (June 1, 2011), available at http://www.aclu.org/national-security/el-masri-v-tenet.
    [34] Office of the High Commissioner of Human Rights, Concluding Observations of the Human Rights Committee, United States of America, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006), available at http://www.universalhumanrightsindex.org/hrsearch/displayDocumentVersions.do?lang=en&docId=1095.
    [35] Scott Horton, Arrest of 13 CIA Agents Sought in Spain, Harper’s Mag., May 12, 2010, available at http://harpers.org/archive/2010/05/hbc-90007028.
    [36] Al Nashiri v. Poland, Request Under Rule 39 (May 6, 2011), available at http://www.soros.org/initiatives/justice/litigation/nashiri/echr-al-nashiri-rule-39-request-20110506.pdf.
    [37] Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, Apr. 28, 1983, available at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=114&CM=8&DF=&CL=ENG (Status of Ratifications).
    [38] Boudellaa et al. v. Bosnia & Herzegovina, Judgment, ¶ 300 (H.R. Chamber for Bosn. & Herz. Oct. 11, 2002).
    [39] Al Nashiri Application, supra note 2, at 76.
    [40] El-Masri Application, supra note 1, at 35.
    [41] See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc); Carol Williams, Five Foreign Men Lose “Extraordinary Rendition” Case, L.A. Times, May 17, 2011, available at http://articles.latimes.com/2011/may/17/local/la-me-rendition-20110517.

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