For twelve years we’ve been meeting, in New York, in London, in Madrid: The Center for Constitutional Rights, Amnesty International, Human Rights Watch and we at the European Center for Constitutional and Human Rights convene regularly to discuss the US program of torture that unfolded after 11 September 2001 and consider what action to take and where. We had another one of these meetings last week in Berlin. But the prospects are now very different than they were a few years ago.
The first criminal complaints were submitted between 2004 and 2008 in Germany, France and Spain against former US Secretary of Defense Donald Rumsfeld, former CIA head George Tenet and other senior officials from the Bush administration. Initially the idea behind these complaints was the same as the one underpinning the cases taken against the Argentine and Chilean military dictatorship in the 1990’s: we wanted to shatter impunity for systematic torture by applying pressure from abroad.
At that time, over a decade ago, there were a variety of civil and constitutional cases pending in the USA. We hoped that the USA, a system – though fragile – with a strong rule of law tradition, would reflect on its past and put legal restraints on the horrors being committed in the name of the “war on terror”.
And yet even the worst cases, including the waterboarding sanctioned by former President Bush and his Vice President Dick Cheney, went completely unpunished. Survivors of the torture in Guantánamo, Abu Ghraib and Bagram received neither compensation nor medical treatment.
When President Obama, a constitutional law expert, took office in January 2009 there was renewed hope that we would see investigations and prosecutions in some of the most serious cases. But this never happened, not even after the release of the Senate’s CIA torture report in December 2014. The unmistakable impression given now is that when it comes to addressing past torture crimes, the United States of America is acting like a dictatorship or an authoritarian regime.
That’s why any hopes for justice now come from outside the US (even though it’s clear, of course, that US society generally has little interest in the actions of European courts and prosecutors). One of the most important cases here was the action brought to the European Court of Human Rights in Strasbourg. The Court has no jurisdiction over the USA, but it did denounce Poland, Lithuania and Macedonia for their ancillary roles in the program. The written decisions themselves read like a slap in the face for the US, whose practices were condemned by the judges as grave human rights violations committed with the collusion of European states.
The criminal proceedings carried out against CIA agents who abducted the Egyptian Abu Omar in Italy and the German Khaled El Masri in Macedonia would have been unthinkable twenty years ago. In Italy a court handed down convictions in absentia and in Germany a series of arrest warrants have been issued.
Other criminal proceedings in Spain, France and Germany are still in the early stages. The most important message to take away from this panorama of legal proceedings is not to be found in the minutia of the cases, but rather in the fact that ten to fifteen years after these crimes were committed, there is still legal wrangling outside the USA concerning the US torture program.
And the survivors of Guantánamo? At our event last week former detainee Murat Kurnaz was skeptical. He has little hope that the US and German political leaders responsible for his suffering will ever apologize to him, or that they will pay compensation for the five years of illegal detention and torture. His fellow inmate, French citizen Mourad Benchellali, is hoping that the investigating judges in Paris will make genuine efforts to continue the proceedings. As with Kurnaz and Benchellali, for former Abu Ghraib detainee Ali Abbas it is important that those who were tortured by the US don’t later resort to joining an armed group. Kurnaz, Benchellali and Abbas are all working towards a peaceful and democratic society. It would be nice if they were not left alone with this hope.