The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.
In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:
In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).
The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:
Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …
One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.
The ECtHR was more cautious in El-Masri
The findings in the new cases were formulated differently from the earlier judgment in El-Masri v. the former Yugoslav Republic of Macedonia (Application no. 39630/09, Grand Chamber Judgment of 13 December 2012, para. 211):
In the Court’s view, such treatment amounted to torture in breach of Article 3 of the Convention. The respondent State must be considered directly responsible for the violation of the applicant’s rights under this head since 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.
The small differences compared to Al Nashiri are that in El-Masri the ECtHR did not explicitly name the perpetrator of the primary human rights violation in the actual conclusion (but yes in the preceding paragraphs, see para. 206 of El-Masri) and that it at least to certain extent explained why the conduct by the European state was in itself in breach of the ECHR (“actively facilitated” & “failed to take any measures”). By and large the comments by André Nollkaemper on El-Masri on EJIL: Talk! are pertinent also in the new cases which took even further the idea of finding an ECHR party responsible for the very conduct of another state.
The ICJ and the indispensable third party doctrine
The International Court of Justice has long relied on the indispensable third party doctrine, first developed in the Monetary Gold case – see, e.g., Christian Tomuschat, Jurisdiction, in Zimmermann et al., The Statute of the International Court of Justice: A Commentary (OUP 2012, at pp. 648-650). For example, in the Case Concerning East Timor (Portugal v. Australia) (I.C.J. Reports 1995, p. 90), the Court declared inadmissible the whole case, as the question of a breach of international law by Australia could not be addressed without assessing the conduct of a third state, Indonesia:
… the Court would necessarily have to rule upon the lawfulness of Indonesia’s conduct as a prerequisite for deciding on Portugal’s contention that Australia violated its obligation… Indonesia’s rights and obligations would thus constitute the very subject matter of such a judgment made in the absence of that State’s consent. Such a judgment would run directly counter to the “well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent” (Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32).
In Nauru v. Australia, the ICJ however did not decline jurisdiction, when a finding in respect of Australia might have implications for the legal situation of the UK and New Zealand, “but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia”. (Nauru v. Australia, Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240 para. 55)
It may be that the state-centred nature of adjudication between sovereign states requires that consent and diplomacy are as important as facts and law. One could assume that in the field of human rights there is both a moral need and a legal foundation for assessing one state’s actions and responsibility irrespective of whether that can only be done by saying something about another state’s conduct as well.
UN human rights treaty bodies
The Committee against Torture was surprisingly cautious about third party responsibility in its own rendition case, Agiza v. Sweden (Communication No. 233/2003, Decision of 20 May 2005). The case concerned the rendition by the CIA of an Egyptian individual from Sweden to Egypt. Before the CAT, the case was framed as one about non-refoulement (article 3 of the Convention against Torture), and the question of Agiza’s treatment by CIA agents on Swedish soil was not addressed. Keeping quiet about the USA and when assessing only the non-refoulement issue, the CAT also steered clear from assessing any action by Egypt, restricting itself only to what was foreseeable for Sweden at the time of removal:
9.4 The Committee noted that Egypt has not made the declaration provided for under article 22 recognizing the Committee’s competence to consider individual complaints against that State party. The Committee observed, however, that a finding, as requested by the complainant, that torture had in fact occurred following the complainant’s removal to Egypt (see paragraph 5.8), would amount to a conclusion that Egypt, a State party to the Convention, had breached its obligations under the Convention without it having had an opportunity to present its position. This separate claim against Egypt was thus inadmissible ratione personae.
The companion case of Alzery v. Sweden was subsequently decided by the Human Rights Committee (Communication No. 1416/2005, Views of 25 October 2006), on the basis of richer factual information and including a separate complaint about ill-treatment on Swedish soil prior to the complainant’s removal. The Committee made explicit references to the United States and the CIA in the narrative parts of its Views but not in its conclusion. Sweden was found complicit in such treatment by foreign agents on Swedish soil that triggered a violation of ICCPR article 7 by itself:
11.6 On the issue of the treatment by the author at Bromma airport, the Committee must first assess whether the treatment suffered by the author at the hands of foreign agents is properly imputable to the State party under the terms of the Covenant and under applicable rules of State responsibility. The Committee notes that, at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party (see also article 1 of the Convention against Torture). It follows that the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged…
Contrary to the ECtHR rulings in the new cases against Poland, the HRCttee was here relating to a third state (the USA) that was a party to the ICCPR and subject to monitoring by the same body through the periodic reporting procedure and potentially the mechanism of inter-state complaints.
As the ECtHR does not have nor ever will have jurisdiction over the US, even bold statements concerning human rights violations by non-European states will in no way be prejudicial in subsequent cases before it. This is a clear difference as compared to the ICJ or UN human rights treaty bodies and may encourage a bold approach.
One may nevertheless ask what would be lost if the ECtHR were to take care to formulate its findings in relation to a respondent state in a way that would not make it an indispensable prerequisite to first say something conclusive on a human rights violation by a third state. Here, the formulae used by the ECtHR in El-Masri or by the HRCttee in Alzery may provide some guidance.
Finally, the ECtHR has otherwise made creative use of ECHR article 36 that allows the inviting “any other person concerned” as third-party intervener in a case. Could this provision be extended to non-European states when they are implicated by the facts? Even if they declined the invitation, it would strengthen the legitimacy of the ECtHR if it were to offer an opportunity to appear as third-party intervener.