African Commission Emerges as New Forum in Quest for Justice for Rendition Victims

[This post is authored by Roxanne Moore (NYU LLM ’14), Daniella Raveh (NYU JD ’15), Meg Satterthwaite, Amanda Bass (NYU JD ’15), in Banjul, Gambia]

Today, we appeared alongside colleagues before the African Commission on Human and Peoples’ Rights in the case of Mohammed Al-Asad v. Djibouti. The case, argued by Meg Satterthwaite of the Global Justice Clinic at NYU School of Law and Judy Oder of INTERIGHTS, seeks relief for the secret detention, ill-treatment, and refoulement of an ordinary Yemeni man who was caught up in the CIA’s rendition, detention, and interrogation program from late 2003 to mid-2005.  The case is the first in the African human rights system, and the latest in a trend of international cases to confront U.S. partner states for their role in implementing the CIA’s extraordinary rendition and secret detention program. Mohammed Al-Asad’s case has the potential to open a new avenue for justice and accountability for individuals who were rendered and detained by African states.

United States courts have repeatedly refused to take rendition cases on the basis of the state secrets privilege, which has been used to dismiss cases at their outset. Any hope that rendition victims could be heard in the United States were dashed when the Supreme Court refused review of El-Masri v Tenet in 2007 and again in 2011 in relation to Mohamed v Jeppesen Dataplan Inc. In contrast, rendition victims have increasingly had success in courts around the world against state partners in the CIA program. As recently as October 21, 2013, the High Court in the United Kingdom held the initial hearing in relation to rendition victims Abdel Hakim Belhadj and Fatima Bouchar. Similarly, on December 3, the European Court of Human Rights will hear from counsel for the Open Society Justice Initiative on a similar matter. OSJI represents Guantánamo detainee Abd al-Rahim al-Nashiri, who has filed a suit against Poland for its role in facilitating his detention, torture, and transfer, despite risk of the death penalty in a trial before a military commission at the U.S. military base. This is one of a string of cases filed in the European Court by U.S. “High-Value Detainees” against European partners in the CIA program that includes Al-Nashiri v. Romania, Abu Zubaydah v.Poland and Abu Zubaydah v.  Lithuania.

The clandestine nature of the program, designed to disorient and confuse its victims and conceal all evidence of the abuses has been a considerable obstacle for detainees seeking redress. Human rights investigators have worked tirelessly to unravel the complicated “spider’s web” of actors that comprised the CIA rendition program, in order to aid the often severely traumatized victims in gathering sufficient proof. John Sifton, an experienced Human Rights Watch investigator testified in front of the Commission on Djibouti’s complicity in the rendition program.

While the Djiboutian government has denied all involvement in the extraordinary rendition and secret detention program, Mr. Al-Asad’s testimony along with the results of private investigations, court records and other publicly available documents demonstrate he was detained in Djibouti: Tanzanian officials documented the transfer; a guard told Mr. Al-Asad he was in Djibouti; a photo of the president of Djibouti hung on the wall in the interrogation room; and his interpreter was Djiboutian. During the two weeks he was held in this facility, Mr. Al-Asad felt an earthquake; seismic records confirm a 5.0 quake struck during that period, centered on the city of Djibouti. The existing evidence including the infamous OLC torture memoranda and reports by Amnesty International and the ICRC demonstrates that Mr. Al-Asad’s experience was typical of CIA detainees.

The treatment to which Mr. Al-Asad was subjected confirms he was part of the rendition program. He was taken from his apartment in Dar-as-Salaam while his wife watched and was delivered to Djibouti by the government of Tanzania. Tanzania admitted in domestic court filings that it sent him to Djibouti aboard a small civilian aircraft in the early hours of December 27, 2003. He was brought to Djibouti in shock, deliberately disoriented, kept totally isolated and hidden from the world. He had access to no one apart from his guards, interrogators, and interpreters, one of whom threatened him with death. Djibouti delivered him to the CIA rendition team, which assaulted him on the tarmac, tore off his clothes, inserted something into his rectum, then diapered and shackled him. The rendition team—balaclava-clad men dressed head to toe in black—photographed him naked, placed earplugs in his ears and a hood over his head. Little did Mr. Al-Asad know that this was only the first of numerous transfers to which he would be subjected, each following this same pattern—a CIA modus operandi.

This mistreatment corresponds identically to that suffered by Khaled El-Masri in late 2003 and early 2004, when the Macedonian authorities secretly detained him before handing him over to the CIA rendition team. Recently, the European Court of Human Rights found that the pre-transfer “capture shock” treatment amounted to torture, and further, that Macedonia was responsible for its actions in arbitrarily detaining El-Masri and then handing him to the CIA in the face of a risk of further torture. Similarly, Sweden was held accountable for its role in the CIA program and required to pay compensation to victims by the Human Rights Committee in Alzery v Sweden and the Committee Against Torture in Agiza v Sweden.

The lack of accountability in Mr. Al-Asad’s case has meant lasting injustice for him and his family. For 16 months, Mr. Al-Asad’s family searched for him without knowing where or why he had vanished. In Djibouti, Mr. Al-Asad was interrogated by at least one American, who asked him about his relationship to the al-Haramain Islamic Foundation in Tanzania. During his interrogation, Mr. Al-Asad learned that the foundation he had assisted with paperwork and rented space to was not the charity he believed it to be, but was involved in supporting terrorism. Mr. Al-Asad’s relationship with the charity was almost definitely the basis for his detention and mistreatment in the CIA program. While that association may have landed Mr. Al-Asad in the CIA program, no charges of terrorism resulted: he was ejected from the program in May 2005, when he was returned by the Americans to Yemen, left to pick up the pieces of his life. Mr. Al-Asad’s story is not atypical of the rendition program. In a similar vein, Khaled El-Masri was misidentified and mistakenly inserted into the covert detention program only to be discarded in the middle of Albania, left to find his way home.

Today we presented new evidence to the African Commission, confirming Djibouti as Mr. Al-Asad’s gateway into the rendition program. Our new evidence draws on materials made public in a business dispute in New York state court, Richmor v. Sportflight Inc. in 2011. This case, concerning contracts among businesses involved in the rendition program, uncovered thousands of pages of evidence concerning the most mundane workings of the CIA rendition program. Experts, including Crofton Black, analyzed these materials for us, and found that the new evidence, combined with already existing data about CIA flights and detainee movements, demonstrate that aircraft linked to the rendition program landed in Djibouti multiple times in 2003 and 2004 alone. Human rights investigations have uncovered the cases of numerous detainees who were held in Djibouti during their journey through the program. Visual representations of this information were prepared by Sam Raphael of the Rendition Project and submitted to the Commission at the hearing today.

Like the cases making their way toward merits consideration before the European Court of Human Rights, our case seeks accountability for Djibouti’s own actions in implementing the CIA program, from hosting a secret detention site to facilitating brutal transfers and then failing to take meaningful action to investigate our client’s torture and disappearance. Djibouti, which was a hub in the rendition program under George W. Bush, continues to host a large U.S. counter-terrorism-focused military installation and a fleet of armed drones.

Today, we urged the African Commission on Human and Peoples’ Rights to find Mr. Al-Asad’s case admissible and move to a consideration of the merits. Taking on the case would be a significant development toward ensuring that the perpetrators of rendition in Africa do not remain above the law. 

About the Author(s)

Meg Satterthwaite

Professor of Clinical Law at New York University School of Law, Faculty Director of the Center for Human Rights and Global Justice, Director of the Global Justice Clinic Follow her on Twitter (@SatterthwaiteML).