Haarlem, Netherlands – On July 24, seven judges on the European Court of Human Rights (ECHR) ruled against Poland in a landmark case, making it the first European Union country to be held accountable for its involvement in the United States’ systematic, extrajudicial detention of suspects, known as the „extraordinary rendition” programme. Established by the George W Bush administration in the aftermath of September 11 attacks, the programme was run by the CIA, and designed to detain suspects deemed to be of „high value”.
In the unanimous ruling, the judges stated that „Poland had cooperated in the preparation and execution of the CIA rendition, secret detention, and interrogation operations on its territory” and that it had failed in its duty under the European Convention on Human Rights to „ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment.”
The ECHR ordered Poland to pay $175,000 to Saudi-born Palestinian Abu Zubaydah and $135,000 to Saudi national Abd al-Rahim al-Nashiri. Both applicants are currently being held in US custody in Guantanamo Bay, isolated from the outside world.
Pressure on Poland
When the existence of the CIA secret prisons in Poland and other Eastern European countries were first made public in November 2005, Polish authorities, including former President Aleksander Kwasniewski, rejected any allegations that such a facility, run by the CIA, had ever existed on Polish soil. The publication of further reports alleging Poland’s involvement in the CIA torture programme finally led to the opening of a Polish investigation in 2008.
The investigation received heavy scrutiny from the ECHR and concluded that it had „failed to meet the requirements of a ‚prompt’, ‚thorough’, and ‚effective’ investigation”.
However, the attitude of Polish authorities towards the ruling and its findings appeared reserved. When asked by Al Jazeera about what the verdict could mean for Poland, the spokesperson of the Polish ministry of foreign affairs responded in a statement:
„The ECHR verdicts did not contain any new findings with regard to the information that has already been available in the public domain on the activities of the alleged secret CIA facilities in Europe. Therefore, it does not seem that both judgments could in any way provide help for the Polish prosecution already working on the explanation of the circumstances which were the subject of the two complaints resolved by the tribunal.”
However, in this context, Bartlomiej Jankowski, one of Abu Zubuaydah’s lawyers, is convinced that the ECHR ruling is of enormous relevance for the Polish prosecutors.
„I strongly believe that the evidence that was gathered so far is sufficient to provide the public prosecutors in charge of the case with enough material to present criminal charges to certain individuals, to pursue the investigation further, and to hold liable all those who should be held liable in Poland,” said Jankowski.
Crofton Black, an investigator at Reprieve – an organisation that provides legal support to Guantanamo detainees – believes that while Polish authorities did not properly cooperate with the ECHR, they still have a chance to re-establish their credibility.
„We have an excellent situation now in which the Polish government can say: ‚We are going to finish this investigation, we are going to do it properly, we are going to disclose it transparently, we are going to clean out our books on this and make sure that this does not happen again,'” Black said.
So far no signs of such a commitment have been seeon on the Polish side.
The spokesperson of the Polish Ministry of Foreign Affairs stressed that the verdict is not yet legally binding, and therefore Poland is currently considering the possibility of appealing the verdict.
Just the tip of the iceberg
The international community welcomed the verdict, declaring it to be a powerful tool that could be used to apply further pressure on the US and European governments to conduct thorough investigations into the CIA rendition programme.
„I hope it will prompt a sort of worldwide reassessment by every country involved, which is practically every country in the world, as to why they participated and why they should have been more careful,” said Black.
Currently, there are two similar cases pending before the European Court of Human Rights against other countries that hosted secret CIA prisons, namely Abu Zubaydah v Lithuania and al-Nashiri v Romania.
Black, who has conducted research into Lithuania’s involvement in secret CIA „black site” programmes, criticised the Lithuanian government’s attitude towards the charges and the quality of its cooperation with the ECHR.
„The government in Lithuania has completely failed to come up with credible alternative to our narrative,” said Black. While explaining why planes contracted by the American government landed in Lithuania, the Lithuanian government has allegedly suggested that these planes „maybe just stopped there to do some sightseeing or something,” he said.
„The Poland ruling is so strong that it has to send a message to Lithuania that it is not good enough for government just to pose a kind of alternative hypothesis,” said Black.
With regard to other countries’ cooperation and chances of engaging in a proper dialog with the Strasbourg-based tribunal, Jankowski said that because of the verdict on Poland’s complicity in the CIA secret prisons programme „it will be more and more difficult to simply apply the tactics of denial.”
‚The United States should be deeply embarrassed’
Although the ECHR ruling addressed Poland’s role in the CIA rendition and detention programme, the judges have emphasised that US citizens subjected the plaintiffs to so-called „enhanced interrogation techniques”, which amount to torture under the European Convention on Human Rights.
Amrit Singh, a lawyer at the Open Society Justice Initiative representing al-Nashiri, expressed hope that this judgment would not go unnoticed in the US.
„I think that the American government should be deeply embarrassed by this decision, because it shows how the United States has engaged in the most unacceptable forms of human rights violations,” said Singh .
In Black’s opinion, the ECHR ruling could become a significant obstacle for the US in its future attempts to: “engage with European allies… especially if there are more than two or three [such verdicts] in the next couple of years, and unless there is some action by the US to show that they can’t just torture people with impunity”.
In this context, however, Joseph Margulies, a lawyer representing Abu Zubaydah, pointed out that the prosecution of Bush administration individuals is not the ultimate goal he would like to achieve with the ECHR ruling.
„The problem with prosecutions is that they presuppose that if we prosecute these people, everything will be fine … There is no fundamental re-assessment of the conditions that produced the behavior of this sort. …What’s important to me is meaningful re-examination of why this happened and a thorough denunciation of the practices, so that this never happens again,” Margulies said.
However, when asked by Al Jazeera what this judgment means for his client, Margulies moved beyond crime and punishment.
„I have been a civil rights lawyer and human rights lawyer for over two decades,” he said. „I can tell you that whenever a person is incarcerated, their most precious commodity is hope.
„It’s not sunlight; it’s not different food, it’s hope. The hope is that one day what he is enduring will end and that the world outside will not forget him. And this judgment represents hope to Abu Zubaydah. It’s hope that gradually the world may awaken. That what was done to him was wrong, that he is not the person they thought he was when he was being tortured, that eventually this nightmare will end.”