El-Masri vs. Republic of Macedonia, Review and commentary
Analysis of PhD Ljupco Stojkovski of the judgment El-Masri vs. Republic of Macedonia of the European Court of Human Rights.
Introduction
On
the 24th of October 2012, the Grand Chamber of the European Court of
Human Rights delivered its decision in the case El-Masri vs. Republic of Macedonia. The
case against Macedonia originated in an Application no. 39630/09, filed on
the 20th of July 2009, in accordance with article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“Convention”), by the German national Khaled El-Masri. In its application, the
applicant, who was born in 1963, and lives in Senden, Germany, alleged that
Republic of Macedonia has committed serious violations of the European
Convention on human rights in the period between 31st of December
2003 and 28th of May 2004. He claimed that he was a victim of a
secret operation of an extraordinary rendition by the CIA in which state
officials from Macedonia participated, and that the operation took place in and
through Republic of Macedonia. According to the applicant, “agents of the
respondent State had arrested him, held him incommunicado, questioned and
ill-treated him, and handed him over at Skopje Airport to agents of the US
Central Intelligence Agency (CIA) who had transferred him, on a special
CIA-operated flight, to a CIA-run secret detention facility in Afghanistan,
where he had been ill-treated for over four months” (paragraph [“§”] 3 of the Judgment).
Furthermore, the respondent state failed to undertake all the means to conduct
an effective investigation of the claims of the applicant. Consequently, the
applicant claimed that with its behavior throughout the entire period, Macedonia
has violated articles 3, 5, 8 and 13 of the Convention, thus it is responsible
for torture, inhumane or degrading treatment or punishment, for violation of
the right to liberty and security, the right to respect for private and family
life, and the right to an effective remedy. The respondent state, Republic of
Macedonia, denied the allegations and claimed that it is not responsible for
violations of the rights of the applicant, as
provided for in the Convention.
Facts
of the case
The applicant’s version of events
Arriving
in Macedonia and checkup at the border
On
the 31st of December 2003 the applicant, Khaled El-Masri, boarder a
bus in Ulm, Germany, in order to take a short vacation and a tourist visit to
Skopje. At around 3 p.m. on the same day, when the bused arrived at the Serbian/Macedonian border crossing “Tabanovce”, the
applicant was called for a questioning because “a suspicion arose as to the
validity of his recently issued German passport”. The interrogation, which
included questions about the possible ties of the applicant with several
Islamic organisations and groups, ended at 10 p.m. the same day, and “a
Macedonian entry stamp dated 31 December 2003 was affixed to his passport”
(§17).
Detention
in a hotel in Skopje
After
the interrogation at the border ended, “accompanied
by men in civilian clothes who were armed”, El-Masri was driven to a hotel in
Skopje which, upon his return to Germany, he recognized to be the hotel
“Skopski Merak” (§17). The applicant was held in detention in a room on the top
floor of the hotel and was constantly watched by a team of nine men. During his
detention, he was repeatedly questioned in English, even though he had limited
proficiency in that language. His requests to contact the German embassy, a
lawyer of his own choosing or his family were refused, and “on one occasion,
when he stated that he intended to leave, a gun was pointed at his head and he
was threatened with being shot” (§18, 19, 67).
Departure from Macedonia and the treatment
at the airport in Skopje
After
being on a hunger strike in the last 10 days of the 23-days detention in the
hotel, on the 23rd of January 2004, “handcuffed
and blindfolded”, the
applicant “was put in a car and taken to
Skopje Airport”.
Earlier that day, he “was filmed by a video camera and instructed
to say that he had been treated well, that he had not been harmed in any way
and that he would shortly be flown back to Germany” (§20).
Soon after arriving at the airport,
while still being handcuffed and blindfolded, the applicant was severely beaten
from all sides, his clothes were sliced from his body with scissors or a knife
and he was sodomized with a firm object. Afterwards, a suppository was forcibly
administered to him and he was temporarily
blinded when a flesh was turned on. It was in this moment that he noticed that
there were seven or eight men dressed in black and wearing black ski masks in
the room. Then, one of the men placed him in an adult nappy, he was dressed in
a dark blue short-sleeved tracksuit, a bag was placed over his head and a belt
was put on him with chains attached to his wrists and ankles. The men in the
room also put earmuffs and eye pads, blindfolded and hooded him, and quickly
marched him to a waiting aircraft (§21). According to the applicant, his
treatment at the airport in Skopje was most likely done by a “CIA special
rendition team”, since the treatment “was remarkably consistent with a recently
disclosed CIA document describing the protocol for the so-called “capture
shock” treatment” (§22). A Macedonian exit stamp was affixed to the applicant’s
passport, dated 23 January 2004 (§21).
The flight from Skopje to Afghanistan
and the treatment in Afghanistan
The
applicant spent the flight to Afghanistan on
the floor facing down and his legs and arms were spread-eagled and secured to
the sides of the aircraft. Most of the time during the flight he was
unconscious because he received two injections and an anesthetic over his nose
(§21). The applicant realized he was not transferred to Germany right after he
was taken out of the plane due to the warm weather at the airport where he
landed. He was immediately taken to a “small, dirty, dark concrete cell” where
he was brutally beaten especially in the area of his head and neck and slammed
into the walls of the room. The “walls were covered in Arabic, Urdu and Farsi
handwriting”, which is how he understood that he is Afghanistan, in “a CIA-run
facility which media reports have identified as the “Salt Pit”, a brick factory
north of the Kabul business district that was used by the CIA for detention and
interrogation of some high-level terror suspects” (§24).
He
was constantly interrogated while in detention, always at night, and “his
repeated requests to meet with a representative of the German government were
ignored” (§25). During his four-month confinement, in a sign of protest, the applicant had undergone on two hunger strikes as
a result of which his health considerably deteriorated. He received no medical
treatment and his first hunger strike was interrupted by a force-feeding that
was done through a “tube was then forced through his nose to his stomach and a
liquid was poured through it” (§26, 27). Several days later, the applicant felt
a minor earthquake (§28).
The
transfer to Albania and the arrival in Germany
On
the 28th of May 2004, seven days after commencing his second hunger
strike, the applicant, blindfolded and handcuffed, was transferred to Albania
via plane. Upon landing, he was driven by a car to some dark and deserted road.
“His captors gave him his belongings and passport, removed his handcuffs and
directed him to walk down the path without turning back.” The applicant
“believed he would be shot in the back and left to die.” However, soon
afterwards he came across three Albanian border officers who informed him that
he was near the Albanian border with the Macedonia and Serbia, and led him to a
superior officer. From there, he was driven to “Mother Teresa” Airport in
Tirana and put on a plane to Frankfurt, Germany. He arrived in Frankfurt the 29th of May 2004, and an Albanian exit stamp affixed on his passport (§30-32).
The respondent state’s version of
events
The
only thing with which the respondent state, Republic of Macedonia, agreed from the
aforementioned description of the facts of the case, is that the applicant was
questioned by the border officials on the 31st of December 2003. The
government “denied that the applicant had been detained and ill-treated by
State agents in the hotel, that he had been handed over to CIA agents, and that
the latter had ill-treated him at Skopje Airport and transferred him to a
CIA-run prison in Afghanistan. In their submission, the applicant had freely
entered, stayed in and left the territory of the respondent State” (§40).
Arrival in Macedonia and checkup at
the border
According
to the Macedonian government’s perspective, Khaled El-Masri arrived in
Macedonia by bus on the 31st of December 2003. In line with the
intensified security measures during the new-year’s festive period, “bus passengers were being subjected to a thorough security check,
including an examination of their identity documents”. After examining Mr. El-Masri’s passport, the
Macedonian border police developed certain suspicions and
decided to ‘detain him’, while
the bus was allowed to continue its journey, “in order not to make the other passengers
wait at the border”. The officials conducted an “interview” with the applicant, “in
accordance with all applicable European standards”. While the interview was
taking place, “a further passport check was carried out against an Interpol
database” because the Macedonian officials “suspected that the passport might
be faked or forged” since “Mr El-Masri was born in Kuwait, [and] yet claimed to
possess German citizenship.” Because the border point at Tabanovce is not
linked to Interpol’s network, “the information had to be transmitted to Skopje,
from where an electronic request was made to the central Interpol database in
Lyon.” The Macedonian government could not present any record of the request to
Interpol to the Court, since the “UBK official in the Analytical Department
apparently made this request using an electronic code”. Mr. El-Masri had to
wait on the border while Interpol search was carried out, but as soon as it was
established that there was no Interpol warrant against him and no further grounds
to hold him, he was released and left to cross the Macedonian border around 9
p.m. on the same day (§37, 39).
The
sojourn in a hotel in Skopje and the departure from Macedonia
In
the evening on the 31st of December 2003, Mr. El-Masri had
registered in the Hotel “Skopski Merak” where he stayed for 23 nights. He paid
the hotel bills in cash and checked-out of the hotel on the 23rd of
January 2004. On the same day, “Mr El-Masri left the territory of Macedonia” – on foot – “at
the Blace border crossing to the State Union of Serbia and Montenegro (on the
Kosovo section)” (§37 - 41).
The Court’s assessment
After dismissing the
respondent state’s objection that the applicant failed to submit the application
within the six-month period rule, in accordance with article 35(1) of the
Convention, the Court accepted the version of events presented by the
applicant, recognizing the allegations as “sufficiently convincing and
established beyond reasonable doubt” (§148, 134 –
147, 167). The respondent state did not provide convincing and satisfactory
explanations and credible evidence of the events in question since the authorities had
taken control of the applicant on 31 December 2003 (§166). On the other hand, in support of the allegations of
the applicant, the Court relied, inter
alia, on numerous international, national and experts’ inquiries concerning
the general practice of CIA/USA with regards to extraordinary rendition and the
treatment of (alleged) terrorists, and particularly those related to the case
of the applicant, Khaled El-Masri. More specifically, the Court emphasized: the
Reports of Committee on Legal Affairs and
Human Rights of the Parliamentary Assembly of the Council of Europe from 2006
and 2007 (the “Marty Reports”), the Report of the Temporary Committee on
Extraordinary Rendition of the European Parliament from 2007 (the “Fava
Inquiry”), the Concluding Observations on Macedonia by the United Nations Human Rights Committee from 2008, The Report of the First
Committee of Inquiry of the Sixteenth Legislative Period (“the Committee of
Inquiry”) formed by the German Bundestag from 2009, the expert Report on the
applicant’s case by Mr. J.G.S, who also took part in the Marty and Fava
Inquiries, etc. (§43 - 75). As evidence obtained during these inquiries for the
present case, the Court used: aviation logs (including
one from the Skopje Airport
authorities) which confirm that a plane took
off from Palma de Mallorca on 23 January 2004, landed at Skopje Airport on the
same day and left Skopje more than three hours later, flying to Baghdad and
then to Kabul; flight logs which confirm that a CIA-chartered aircraft took off from Kabul on 28 May 2004 and
landed at a military airbase in Albania
on the same day; scientific testing of the applicant’s hair follicles
confirming that he had spent time in a South Asian country and had been
deprived of food for an extended period of time; geological records that
confirm the applicant’s recollection of minor earthquakes on the territory of
Afghanistan in April 2004; sketches that the applicant drew of the layout of
the Afghan prison, which were recognisable to another rendition victim who had
been detained by US agents in Afghanistan, etc. (§157
- 160).
A
particular importance in the assessment of the facts, and as the only direct
piece of evidence in the present case, the Court gave to the written statement by Macedonian
Minister of Interior Affairs at that time, and later Prime Minister, Mr. Hari
Kostov. Completely opposite of what Republic of Macedonia claimed in front of
the Court, Kostov stated that Macedonian agents belonging to the UBK
(Department of security and counterintelligence), acting under his authority as
Minister and under the direct supervision of the then UBK Director, detained
Khaled El-Masri on the 31st of December 2003 in accordance with an
official request (and a valid international warrant) from USA intelligence
partners who suspected that Mr. El-Masri was involved in Islamic terrorism. The
“Macedonian government agreed to hold Mr El-Masri until he could be handed over
to the US authorities for further interrogation”. Thus, he “was held for a
certain period in a location in Skopje, secretly and without incident, under
the constant supervision of UBK agents”. On the 23rd of January
2004, “Mr El-Masri was handed over to the custody of a CIA ‘rendition team’ at
Skopje Airport and was flown out of Macedonia on a CIA-operated aircraft”.
According to Kostov, “the entire operation was thoroughly documented on the
Macedonian side by UBK personnel in the Ministry of the Interior”, and “ought
to be available in the Ministry’s files”. At the end of his statement, he underlined
that Macedonia had acted accordingly to its domestic laws and procedures and
that regardless of the realization that Mr El-Masri’s situation resulted from a
mistake, it was not Macedonia’s mistake, and there was not any intentional
wrongdoing on the part of the Macedonian authorities (§74).
The
Court stressed that, in principle it treats statements given by current or
former politicians and officials with caution, since they tend to be in
favour of the government that they represent or represented. However, when the
statements of these persons, who have played a central role in the dispute in
question, go in unfavourable light to the respondent state, and support the
applicant, they “may then be construed as a form of admission” (§163). Kostov’s statement only confirmed the facts of case
presented by the applicant and already established by the court through the
aforementioned evidence (§161). Furthermore,
the respondent state had not presented to the Court any reason to cast doubt on
the statement’s credibility (§164).
Judgement
Moving
to the legal aspect of the case, after finding that the applicants’ complaints
for violations of articles 3, 5, 8 and 13 of the European Convention of human
rights are admissible pursuant to article 35(3) of the same Convention (§180, 229, 247, 254), the Court unanimously adjudicated
that the respondent state is responsible for violation of all of the
abovementioned articles.
Article 3 – torture, inhuman or
degrading treatment or punishment
Pointing
out that article 3 of the Convention is of absolute nature and no exceptions
and derogations are allowed from it, irrespectively of the conduct of the
person concerned and even in the event of a public emergency threatening the
life of the nation, or in the fight against terrorism (§195),
the Court concluded that Republic of Macedonia “is to be held responsible: [1)] for the inhuman
and degrading treatment to which the applicant was subjected while in the
hotel, [2)] for his torture at Skopje Airport and [3)] for having transferred
the applicant into the custody of the US authorities, thus exposing him to the
risk of further treatment contrary to Article 3 of the Convention” (§223).
1)
While it is true that during his detention in the hotel in Skopje no physical
force was used against the applicant, the Court underscored that “Article 3
does not refer exclusively to the infliction of physical pain but also of
mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault”. “There is no doubt”, the
Court added, “that the applicant’s solitary incarceration in
the hotel intimidated him on account of his apprehension as to what
would happen to him next and must have caused him emotional and psychological distress”
that was “further increased by the secret nature of the operation and the fact
that he was kept incommunicado for twenty-three days in a hotel, an
extraordinary place of detention.” This treatment of the applicant was
intentional, “with the aim of extracting a confession or information about his
alleged ties with terrorist organisations”. Therefore, the Court concluded that
it amounts to inhuman and degrading treatment in breach of Article 3 of
the Convention (§202-204).
2)
The Court qualified the treatment of the applicant at the airport in Skopje –
the intensive beating, the forcible undressing, the use of hooding, the
forcible administration of a suppository and so forth – as torture. The use of
these measures was completely unjustified and excessive, with the aim “to cause
severe pain or suffering in order to obtain information, inflict punishment or
intimidate the applicant” (§211, 207-211). Although it was a
special CIA rendition team that conducted the treatment, Macedonia is also
responsible for violation of article 3 of the Convention since the acts complained by the applicant were carried out in the
presence of its officials and within its jurisdiction, and “its agents actively
facilitated the treatment and then failed to take any measures
that might have been necessary in the circumstances of the case to
prevent it from occurring” (§211, 206). “Consequently,
the respondent State must be regarded as responsible under the Convention for
acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities”
(§206).
3) Republic of Macedonia
further breached article 3 of the Convention through the extraordinary
rendition of the applicant to the US authorities, since “the Macedonian
authorities knowingly exposed him to a real risk of ill-treatment and to
conditions of detention contrary to Article 3 of the Convention” (§220, 221). The transfer was not done pursuant
to a “legitimate request for his extradition or any other legal procedure
recognised in international law for the transfer of a prisoner to foreign
authorities”, nor was there an existing arrest warrant for the
applicant (§216). In addition, “the evidence
suggests that the Macedonian authorities had knowledge of the destination to
which the applicant would be flown from Skopje Airport” and having in mind the
numerous relevant international and foreign jurisprudence and media reports
regarding the practice of the USA with persons suspected of involvement in terrorism
in this (and other) destination(s), “the Macedonian authorities knew or ought
to have known, at the relevant time, that there was a real risk that the
applicant would be subjected to treatment contrary to Article 3 of the
Convention” (§217, 218). The Macedonian
authorities also “did not seek any assurances from the US authorities to avert
the risk of the applicant being ill-treated” (§219).
Hence, the Court concluded that by transferring the applicant into the custody of the
US authorities the respondent state violated article 3 of the Convention (§220, 222).
Article 5 – right to liberty and
security
In
addition to violating article 3, the Court also found Republic of Macedonia
responsible for the enforced disappearance of the applicant throughout the
entire period of his captivity, thus violating article 5 of the Convention (§240, 241).
The
Macedonian authorities held the applicant arbitrarily, without a court order or
an authorization by a court, did not inform him about the reasons for his
deprivation of liberty, questioned him in a language that he was not very
proficient with, did not give him an access to a lawyer, nor allowed him to
contact his family or a representative of the German embassy in the respondent
State, and his detention was not substantiated by any custody records (§236).
Showing understanding of the difficulties that offences related to terrorism
pose, the Court has, nevertheless, emphasized that “although the investigation
of terrorist offences undoubtedly presents the authorities with special
problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from
effective control by the domestic courts and, in the final instance, by the
Convention’s supervisory institutions, whenever they consider that there has
been a terrorist offence” (§232). The unacknowledged and
incommunicado detention of the applicant in Macedonia, especially in ‘an extraordinary place
of detention outside any judicial framework, as was the hotel in the present
case” – which the Court finds it wholly unacceptable in a State that is subject
to the rule of law – “constitutes a particularly grave violation of his right
to liberty and security as secured by Article 5 of the Convention” (§236, 237).
Recalling on
its own jurisprudence, the Court also highlighted that “in the case of a series
of wrongful acts or omissions, the breach extends over the entire period
starting with the first of the acts and continuing for as long as the acts or
omissions are repeated and remain at variance with the international obligation
concerned” (§240). Therefore, the “Macedonian
authorities not only failed to comply with their positive obligation to protect
the applicant from being detained in contravention of Article 5 of the
Convention, but they actively facilitated his subsequent detention in
Afghanistan by handing him over to the CIA, despite the fact that they were
aware or ought to have been aware of the risk of that transfer. The Court
considers therefore that the responsibility of the respondent State is also
engaged in respect of the applicant’s detention between 23 January and 28 May
2004” (§239).
Article 8 – right to respect for
private and family life
With
its actions and omissions, Republic of Macedonia violated the applicant’s right
to private and family life. According to article 8 of the Convention, “everyone
has the right to respect for his private and family life, his home and his
correspondence” and public authorities shall not interfere arbitrarily in the
exercise of this right but only exceptionally and if such interference is
necessary, in accordance with the law and “in the interests of the national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others”.
The
Court concluded that the with the treatment of the applicant – who, inter alia, was completely separated
from his family for four months and his family had no clues about his
whereabouts throughout that period – the respondent state interfered with the
applicant’s right to private and family life and that interference was not “in
accordance with the law”, as required by article 8 of the Convention (§249, 250).
Right to an effective remedy
Finally,
the Court also decided that the applicant’s right to an effective remedy,
provided in article 13 of the Convention, and in this case related to articles
3, 5 and 8 of the Convention, was violated. Having in mind the serious and
irreversible nature of the harm that might occur if these articles are
violated, especially the one about torture and inhuman and degrading treatment,
“the notion of an effective remedy under Article 13 requires independent and
rigorous scrutiny” by the respondent state of the claims of the applicant that
there exist substantial grounds for a treatment contrary to the relevant
articles, especially Article 3 (§257). In
cases when “an
individual has an arguable claim that he has been ill-treated by agents of the
State, the notion of an “effective remedy” entails, in addition to the payment
of compensation where appropriate, a thorough and effective investigation
capable of leading to the identification and punishment of those responsible
and including effective access for the complainant to the investigatory
procedure” (§255). The investigation must be
prompt and thorough, must be independent, in practical terms, from the executive
branch of government, the authorities must undertake all reasonable steps
available to secure the evidence concerning the incident (including, inter alia, eyewitness testimony and forensic
evidence), and they must allow the victim to effectively participate in the
investigation in one form or another (§182-185).
In
the present case, Republic of Macedonia did not act in this way. The public
prosecutor undertook only a summary investigation for the criminal complaint
filed by the applicant in October 2008. The complaint was rejected two and a
half months later for alleged lack of evidence, even though the evidence that
the applicant submitted – that was relying mostly on the aforementioned international
inquiries – were considerable and “laid the basis of a prima facie case of misconduct on the part of the security forces of the respondent State,
which warranted an investigation by the authorities” (§186,
187). The
public prosecutor made its decision based solely on the information,
explanations and documents provided by the Ministry of Interior Affairs, “whose
agents were, broadly speaking, suspected of having been involved in the
applicant’s treatment” (§189). Aside from seeking information
about the case from the Ministry of Interior, the public prosecutor “did not
undertake any other investigative measure to examine the applicant’s allegations.”
It did not interview the applicant nor the personnel working in the hotel
“Skopski Merak” at the time of the events of the case, it did not investigate
the aviation or flight logs to determine the reasons for the landings and takeoffs
from the Skopje airport, nor did it investigate the identity of the passengers
aboard the flights (§187, 188). Consequently, the Court concluded
that “the summary investigation that has been carried out in this case cannot
be regarded as an effective one”. Thus, article 13 of the Convention, and the
procedural aspects of articles 3, 5 and 8, were violated (§193, 194, 243, 262).
Commentary
After
establishing the violations of the European Convention of human rights, the
Court decided that the respondent state, Republic of Macedonia, shall pay
60.000 euros to the applicant, Khaled El-Masri, as a just satisfaction,
pursuant to article 41 of the Convention (§269,
270). The
Court stressed that it took into consideration the seriousness of the
violations of the rights of the applicant, but did not give a more concrete
explanation of how it decided upon the amount it ordered, especially since the
applicant, calling on other similar cases where national courts have awarded
much bigger amounts than what he requested, has asked for 300.000 euros (§267-270). Nonetheless, the monetary compensation is only
one, probably less significant, aspect of the judgment. The public disclosure
of the truth, is perhaps much more significant for the victims of these kinds
of violations. As many organizations that deal with the practices of
extraordinary rendition and torture and inhuman treatment point out, there are other
important aspects beside monetary compensation which address “the long-term
restorative aims of reparation” that must also be provided, “such as
satisfaction (acknowledgment of the breach, an expression of regret or a formal
apology), guarantees of non-repetition and rehabilitation” (§177). Many of these components can be, at
least to some extent, accomplished through a judicial decision. Clinical
psychologists also confirm the benefits to the victim of the public disclosure
of the truth. According to Robertson, “public recognition of
the truth and proper acknowledgment through some form of redress could play an
integral role in the survivor’s recovery. Conversely, if the truth remained
hidden and the perpetrators walked free, that could compound the survivor’s
sense of helplessness and struggle to create meaning and obtain closure” (§177).
And the truth in the case of Khaled El-Masri is not only that he was a victim
to flagrant violations of his human rights but also that all of that was due to
a mistake by American intelligence which confused the German national with
someone who had the same[i] or similar[ii] name as him.[iii]
From
the perspective of international law, the judgement is important because it is
the first case in front of the European Court of Human Rights (ECtHR) where the
practice of extraordinary rendition is condemned. Following this case, numerous
other similar cases have been brought to the ECtHR but also to the
Inter-American court on Human Rights, the African Court of Human and People’s
Rights and the East African Court of Justice.[iv] At the same time, the
judgement in the El-Masri case is also the first time that an international
tribunal qualified the treatment during this rendition as torture,[v] thereby once again
confirming the absolute nature and the significance of the prohibition of
torture for the international community. Furthermore, knowing that the European
Convention on human rights was directly inspired by the Universal Declaration
of human rights, and that the rights in the latter were incorporated in many
other international documents and treaties, the judgement can also serve as a
guide on how to interpret and apply these international norms in cases of extraordinary
rendition practices in the future.[vi] Finally, this judgement
once again affirms the right to truth and points out to the obstruction of the
search for truth that can be done through the abuse of the concept of “state
secrets”, especially when it comes to systemic policies such as secret detention, interrogation and rendition or other programs for which there
is not many information publicly available and for which there is general
impunity, that are, of course, contrary to the idea of rule of law and the
respect for human rights.
[i] In one occasion,
one of Khaled El-Masri’s lawyers said that the USA confused his client with
Khalid al-Masri, a person that was suspected for the 9/11 attacks. Don van Natta Jr., Souad Mekhennet, German's Claim of
Kidnapping Brings Investigation of U.S. Link, New York Times, 9
January 2005, https://www.nytimes.com/2005/01/09/world/europe/germans-claim-of-kidnapping-brings-investigation-of-us-link.html
[ii] In another
statement, El-Masri’s lawyers pointed out that the USA confused their client
with Abu Hamza Al-Masri, who was convicted in 2014 on 11 charges of terrorism.. Академик, Ел-Масри против
Македонија, 1 Август 2012, https://akademik.mk/sudenje/el-masri-protiv-makedonija/
[iii] The USA admitted
their mistake to Germany on the highest official level, and later did it in
public as well. NBC News, German sues CIA, alleging Torture, 12
June 2005, http://www.nbcnews.com/id/10348907/ns/world_news-terrorism/t/german-sues-cia-alleging-torture/ ; Б.
Најт, Н. Домазетовиќ, ЦИА го призна погрешното апсење на Калед Ел-Масри, DW, 12 Јули 2017 https://www.dw.com/mk/%D1%86%D0%B8%D0%B0-%D0%B3%D0%BE-%D0%BF%D1%80%D0%B8%D0%B7%D0%BD%D0%B0-%D0%BF%D0%BE%D0%B3%D1%80%D0%B5%D1%88%D0%BD%D0%BE%D1%82%D0%BE-%D0%B0%D0%BF%D1%81%D0%B5%D1%9A%D0%B5-%D0%BD%D0%B0-%D0%BA%D0%B0%D0%BB%D0%B5%D0%B4-%D0%B5%D0%BB-%D0%BC%D0%B0%D1%81%D1%80%D0%B8/a-19395125
[iv] Hellen Duffy, The ‘War on Terror’ and the Framework of
International Law, Cambridge University Press, 2015, p.838,839.
[v] Marta A.
Orpiszewska, El Masri v. Former Yugoslav
Republic of Macedonia: Implications for the CIA Extraordinary Rendition Program,
North Carolina Journal of International Law and Commercial Regulation, vol.39,
no.4, p.1188.
[vi] Ibid, p.1187.