Two Regional Human Rights Tribunals Forge Ahead Despite Trump’s Attacks on International Institutions

From its first days in office, the Trump administration has relentlessly politicized and attacked the international human rights system while thumbing its nose at the norms the system was set up to protect. Just two months after inauguration, the administration boycotted a hearing on the discriminatory Muslim ban before the Inter-American Commission on Human Rights, marking a departure from the practice of recent administrations, which at least engaged with the Inter-American Commission. And as many Just Security authors have rightly noted, Trump’s recent executive order authorizing sanctions against the International Criminal Court (ICC) represents an unprecedented attack on that judicial institution simply for investigating possible U.S. crimes committed in States that have accepted ICC jurisdiction.

In the face of these attacks, the work of regional human rights institutions to hold the United States and its partners accountable for abuses committed as part of the “global war on terror” are more important than ever. Regional bodies have crucial opportunities in the coming months to address the violations imposed upon men subjected to the post-9/11 extraordinary rendition program. A global enterprise of kidnappings, torture, and incommunicado detention, this system was inflicted upon hundreds of Muslim men and their families between 2002 and 2008.

Last month, the Inter-American Commission took an historic step in a case brought by four survivors of the extraordinary rendition program. Represented by the ACLU and the New York University Global Justice Clinic (where we work), these men exemplify the breadth of the program: They were held in eight different facilities across Afghanistan, Jordan, Gambia, Pakistan, Morocco, and the U.S., and they were subjected to countless instances of torture and ill-treatment. In a decision that has just been made public, the tribunal determined that these four survivors of U.S. forced disappearance, arbitrary detention, and torture would have their experiences acknowledged and their legal claims considered by the Inter-American Commission.

One of these survivors, Mohamed Farag Ahmed Bashmilah (who we represent), endured brutal torture at the hands of the CIA. He was subjected to forced feeding, kept diapered for weeks, short shackled in painful positions, and inundated with excruciatingly loud music during his more than 18 months in CIA custody. The Senate Select Committee on Intelligence later found that Bashmilah was wrongfully detained by the CIA. What the report did not say was that the CIA had received a false confession that was tortured out of our client at the hands of the Jordanian intelligence services.

In its admissibility decision, the Inter-American Commission determined that the case was ripe for review before the regional tribunal due to the “insurmountable obstacles within the U.S. legal system for adjudicating any cases” concerning post-9/11 abuses. The Commission also found that “no effective remedy is available to the Petitioners in the U.S.,” following U.S. courts’ application of the state secrets privilege to dismiss the petitioners’ federal lawsuit.

Years before filing at the Inter-American Commission, the petitioners brought their claims before U.S. federal courts. Knowing that the U.S. was likely to invoke the state secrets privilege as it had in other cases challenging the rendition program, the plaintiffs sought redress from a pivotal—but non-governmental—partner in the rendition program. They sued Jeppesen Dataplan, Inc., a Boeing subsidiary that provided support services for what one Jeppesen manager referred to as the CIA’s “torture flights.”

But the U.S. government quickly intervened in the lawsuit, arguing that the case should be dismissed since the very subject of the lawsuit—the infamous and well-publicized rendition program—remained nonetheless a “state secret.” The District Court complied and the lawsuit was terminated. After a promising Ninth Circuit decision reversed the lower court, a full panel of the Ninth Circuit vacated this decision and reinstated the District Court’s dismissal. In Judge Michael Hawkins’ poignant dissent, joined by four others, he noted that the doctrine of state secrets “is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances,” something the majority of judges were unwilling to do. When the Supreme Court denied the petition for certiorari, the case closed and the plaintiffs were left without any remedy under U.S. law for their horrific treatment. Soon after this decision, they filed their petition against the U.S. with the Inter-American Commission.

More than nine years after their federal case ended, the Inter-American Commission has done what no other tribunal would do: It has agreed to hear the merits of the case. These petitioners join a small circle of other victims and survivors of U.S. counterterrorism abuses whose cases have advanced before the Inter-American Commission. In a recent decision summarized in a post last month on Just Security, the Inter-American Commission found the U.S. liable for the torture and refoulement of Djamel Ameziane, an Algerian national who was formerly detained at the U.S. naval prison at Guantánamo Bay. The Inter-American Commission has also accepted the case of Khaled El Masri, a German citizen who was abducted in Macedonia and tortured for months in a CIA black site in Afghanistan. El Masri, who is represented by the ACLU, is awaiting a hearing on the merits of his case.

Taken together, these cases represent an important opportunity for the survivors of U.S. torture to finally have their voices heard and their suffering recognized. To this day, the U.S. government has not apologized for or even acknowledged the torture and ill-treatment it inflicted upon these individuals.

As the Inter-American Commission cases progress, the African Commission on Human and Peoples’ Rights—a regional human rights mechanism that hears cases against African Union member States—has a similar opportunity. The African Commission is actively considering a petition against the Republic of Djibouti, which was a regional hub in the U.S. extraordinary rendition program. This case was brought by Mohammed al-Asad (another client of ours at the NYU Global Justice Clinic) in 2009. This is the first human rights case to challenge a U.S. partner State outside of Europe for its role in the program.

In December 2003, al-Asad was abducted from his home and flown to Djibouti. The Djiboutian authorities held al-Asad in one of their local detention facilities, likely located in the Plateau de Serpent neighborhood of Djibouti City. During his detention, al-Asad was interrogated on multiple occasions by an agent of the U.S. government, her interpreter, and Djiboutian security forces. During one interrogation, al-Asad was threatened with death by an interpreter who said that both he and his wife “would be put aside” and that their children “will be orphans.”

After two weeks of detention, Djiboutian security forces drove al-Asad to Djibouti-Ambouli International Airport. There, Djiboutian forces watched as waiting American operatives pulled al-Asad out of the car, stripped him naked, sexually assaulted him, diapered him, and chained him, before roughly pulling him to an awaiting airplane. The Djiboutian forces did nothing to stop or even protest what was happening. These Djiboutian agents’ culpability is analogous to that of Swedish officials in cases from the early days of the extraordinary rendition program. In those cases, the United Nations Human Rights Committee and the U.N. Committee Against Torture found Sweden to have violated the rights of Mohammed Alzery and Ahmed Agiza, who were handed to the CIA in a similar manner on the tarmac at Stockholm’s Bromma Airport. Following the assault on al-Asad, the CIA flew him from Djibouti to Afghanistan, where he was held in incommunicado detention and subjected to torture and ill-treatment by the CIA for 16 months.

Djibouti was the doorway to al-Asad’s mistreatment and that of numerous other men held in the U.S. “war on terror.” In this way, Djibouti’s role in the program is similar to that of the former Yugoslav Republic of Macedonia, which was found by the European Court of Human Rights to be responsible for the ill-treatment of Khaled El Masri, the German citizen kidnapped and brought to Afghanistan. Macedonian authorities held El Masri incommunicado in a hotel in Skopje before handing him over to the CIA, which used the same brutal techniques at the airport that were applied against al-Asad. Macedonia was found liable for facilitating and failing to prevent the abuse the CIA inflicted upon El Masri at the airport in Skopje and for handing him over to the CIA knowing he could be tortured following the transfer. The European Court has also found Poland (twice), Lithuania, Romania, and Italy responsible for their varied roles in the torture and ill-treatment of other victims of the U.S. rendition program.

Djibouti remains a key counterterrorism partner of the United States. Gen. Stephen Townsend, head of U.S. Africa Command, noted last year that the U.S. and Djibouti “enjoy an enduring, strong, and cooperative partnership.” As part of this longstanding relationship, Djibouti acted as a central hub of the U.S. extraordinary rendition program. Documentation shows Djibouti’s involvement in the rendition of at least two other victims of the CIA program: Suleiman Abdullah Salim and Guled Hassan Duran. In addition, Djibouti has detained individuals at the behest of the U.S. and allowed the U.S. to arbitrarily detain or transfer persons on its territory outside the CIA program. The NYU Global Justice Clinic is aware of at least six instances of such conduct between 2004 and 2012, including the ill-treatment, detention, or transfer of individuals by U.S agents, or Djiboutian agents at the behest of the U.S.

We filed al-Asad’s case against Djibouti before the African Commission more than 10 years ago. The Commission’s confidentiality rules place limits on the public dissemination of particular information about an ongoing case, though such restrictions do not apply to information the African Commission itself has made publicly available. In a 2014 decision posted on its website, the African Commission found the case inadmissible, finding a lack of “reliable and conclusive evidence that the Complainant was deported to Djibouti.” The African Commission only publishes final decisions on its website, which in practice means that only decisions dismissing cases as inadmissible or decisions on the merits are published. A cursory review of the African Commission’s website, therefore, gives the appearance that the al-Asad v. Djibouti case has long been dismissed.

But this does not provide the full picture. In 2016, the African Commission accepted al-Asad’s petition for review and found the case admissible (see page 7 of the African Commission’s 40th Activity Report). The African Commission then held a hearing on the case in May 2018 (see page 9 of the 44th Activity Report). Since then, the African Commission has deferred making a decision on the case on multiple occasions (see page 12 of the 45th Activity Report and page 8 of the 46th Activity Report). The Commission recently concluded its 66th Ordinary Session, where the case may have been discussed, but it is unclear when the African Commission will release a decision on the merits of the case. No matter the details, the case remains alive, and the African Commission has the opportunity to join its sibling tribunals in the Inter-American and European human rights systems by addressing the abuses meted out by States as part of the U.S. extraordinary rendition program.

President Donald Trump has repeatedly demonstrated his commitment to attacking human rights institutions across the globe. It remains to be seen how the regional and international human rights systems will respond in the face of these assaults. What is clear is that now, more than ever, is the time for these institutions to live up to their purpose. They should continue their vital work to establish the truth and ensure accountability for violations of human rights, no matter how powerful the perpetrator. These two cases provide these regional mechanisms with fitting opportunities to do just that.

Image: A Casa 235 turboprop plane with registration number N168D taxis along a runway at Ruzyne Airport April 8, 2005 in Prague, Czech Republic. According to airport flight records the plane was registered to the firm Aero Contractors, based in North Carolina, and was scheduled to fly from Prague to Kabul, Afghanistan. Photo by Pavel Horejsi/Getty Images

 

About the Author(s)

Sara Robinson

Legal Fellow at the Global Justice Clinic at New York University School of Law.

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).