The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

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André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.

On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.

A more substantive point is that, without clear rationale and justification, the Court intertwines the concepts of attribution of conduct and attribution of responsibility. For instance, the Court found that the responsibility of Macedonia was engaged with regard to the applicant’s transfer into the custody of the United States authorities and eventually his transfer to Afghanistan, despite the existence of a real risk that he would be subjected to further treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) (para. 223). This follows the Soering case-law, and fits in traditional doctrine: Macedonia would be only responsible under Article 3 for its own conduct and not for the torture in Afghanistan itself. But it is then hard to understand why the Court speaks in this context of attribution of responsibility (para. 215), rather than attribution of conduct.

Nonetheless, amidst all this confusion, an interesting thought emerges. In regard to two allegations, the Court concluded that Macedonia was not (only) responsible for the act of handing over El-Masri, but that it was responsible for conduct that clearly was not its own. Macedonia had handed over El-Masri to a CIA rendition team at Skopje Airport, where he was ill-treated before being sent off to Afghanistan. The Court found Macedonia ‘responsible for the ill-treatment to which the applicant was subjected at Skopje Airport by CIA agents’. And in respect to the detention in Kabul, once the CIA had flown EL-Masri there, it found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity in Kabul (para. 240), and imputed the detention (an act committed by the CIA) as such to Macedonia (see also para. 235).

This approach of making a state responsible for acts that are not its own may be explained by the scope and contents of the particular obligations of states under the ECHR. That is particularly clear for the events at Skopje airport. The Court could have approached this as a Soering type situation, and could have held Macedonia responsible for handing over a person to a foreign state in the face of a risk of torture. However, the difference was that the CIA mistreated El-Masri at the airport itself, and this was therefore not just a question of handing someone over in the face that he would be mistreated in another state. The Court thus had to take a different approach and stated in para. 206 that:

 ‘the acts complained of were carried out in the presence of officials of the respondent State and within its jurisdiction. 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’.

The Court’s finding that Macedonia was responsible under the Convention for the acts performed by foreign officials on its territory with the acquiescence, or connivance of its authorities, reminds us that there is a world outside the conceptual framework established by the ILC. The Court did not attempt to explain its approach in ´ILC terms´- none of the four Articles of the Articles on State Responsibility (‘ASR’) that the Court referred to (Art. 7, 14, 15 or 16) is relevant in this context. Driven by the general obligation of states to protect rights of persons under their jurisdiction, the Court´s approach seems to be Macedonia is responsible for the wrongful act of handing over El-Masri and that because of its acquiescence or connivance, this responsibility extends to El-Masri´s ill-treatment by the CIA.

This approach follows the Human Rights Committee, which in a 2006 case against Sweden determined that ‘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’ (Mohammed Alzery v. Sweden, para. 11.6).

 A striking aspect of the Court’s reasoning is that it equates the responsibility of a state vis-à-vis the conduct of another state (here the US), with the responsibility of a state vis-à-vis the acts of private persons. It refers, for instance to Ilascu v. Moldova and Russia § 318, in which the Court said that ‘the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention’.

The Court’s equation of state responsibility vis-à-vis conduct of private actors on the one hand, and vis-à-vis foreign states on its territory, is logical from the perspective of the ECHR. Once the scope of states’ obligations to protect rights of persons within their jurisdiction was extended to obligations to secure, that third parties within their jurisdiction did not interfere with rights and freedoms of individuals, there is no compelling basis for distinguishing between private parties and states that acted within the territory of the state party.

The justification of the construction then lies in the combination of the (positive) obligations of states party under the Convention, and the fact that the conduct in question took place on its territory with its acquiescence or connivance, which in turn was incompatible with the positive obligations. The primary rules thus in a way incorporate questions that in the ILC texts are considered as freestanding secondary rules, just as the Court considers the question of facilitation of ill-treatment of El-Masri as a breach of positive obligations (e.g. para. 211), not in terms of a responsibility under Art. 16 of the ILC Articles (even though the Court did list this as a relevant norm of international law).

Although all of this thus can be explained with the framework of the Convention, a reading of the judgment raises many questions concerning this approach. The statement that Macedonia was responsible under the Convention for acts performed by foreign officials on its territory is somewhat ambiguous. Since the Court did not go as far as attributing CIA conduct to Macedonia, this wording may be taken to suggest that Macedonia would be responsible without itself having committed a wrongful act. That of course is not what the Court intended to say, but a more solid explanation would help.

Somewhat mysterious is also that whereas Macedonia´s responsibility for handing over El-Masri to the CIA was based on the traditional Soering case law (Macedonia was responsible for the act of transferring El-Masri into the hands of the CIA in the face of risk of torture (para. 223), not for the torture in Kabul, just as in a Soering case, the extraditing state is not responsible for the death row or the death penalty that later occurs), it took a different line in regard to the responsibility of Macedonia for the illegal detention by the CIA of El-Masri in Kabul. Here the Court found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity (para. 240) and suggested that it imputed the detention (in the hands of the CIA) as such to Macedonia (see also para. 235).

This could be explained as extension of responsibility based on criteria of foreseeability and causation, but then it is not obvious why these factors were not applied in regard of the removal of the applicant to Kabul, where the Court only held Macedonia responsible for the removal, not for the torture in Kabul itself. All of this seems a connection of unfinished and not systemically developed thoughts.

Yet, in this midst of all this there is a thought that matters. For all its incoherence and lack of clarity, the Court´s language has a hint of normative power that the general law of responsibility lacks.The general law of responsibility by its conception of responsibility-based-on-wrongfulness, prefers determinations that one is responsible for the handing over of a person or for its inaction, not for the resulting torture itself.  In contrast, the Court´s approach may allow us to say that if a state hands over a person to another state in the knowledge that the person is tortured, and stands by when that torture happens, it bears responsibility for the torture itself.

The hint of a fresh approach to the law of responsibility deserves to be taken forward. There is no other international Court that has a similarly rich case-law on responsibility of states in connection to conduct of other states. It is about time that the Court starts clarifying the grounds of responsibility of states under the Convention, and in particular the grounds for extending such responsibility to acts that were committed by other states.

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Asier Garrido says

December 26, 2012

Dear Prof. Nollkaemper:

I partially agree with your comments regarding the findings of the Court on arts. 3 and 5 ECHR. But instead of ‘mysterious’, I would say that the reasoning of the Court on article 5 is ‘confusing’. As you suggest, paragraphs 235 and 240 lead to the conclusion that the Court’s approach was based on the Macedonian direct responsibility for the lack of judicial guarantees during the application’s detention under US surveillance. However, p. 239 seems to follow a different path:

“The Court reiterates that a Contracting State would be in violation of Article 5 of the Convention if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article […] In the present case, the Court has already established to the required standard of proof that the applicant was subjected to “extraordinary rendition” (see paragraph 221 above), which entails detention ...“outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” […] In this connection the Court reiterates that Article 5 of the Convention lays down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction […] 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” (emphasis added).

In my opinion, this paragraph contains the bulk of the reasoning concerning the Macedonian’s responsibility for the applicant’s detention outside Macedonian territory. At this point I do not see any essential difference between the traditional ‘Soering approach’ and the new ‘El-Masri/art. 5’ one. So, I would say that it is possible to argue that the Court either (1) did not innovate here as a matter of State responsibility for the act of another State; or (2) it was self-contradictory. This last possibility is further supported by the wording of the findings of the Court, where it “holds that the respondent State is responsible under Article 5 of the Convention for the applicant’s subsequent captivity in Afghanistan”.
As regards your observation on the limits of the ILC’s conception based-on-wrongfulness, I am personally not so persuaded that article 16 is the best example of such an approach. I will divide my point in two steps and omit precise references for the sake of brevity.
Firstly, as a matter of principle, I agree with Prof. David (among others) when he suggests that we should avoid dogmatism when approaching the difference between primary and secondary rules. Art. 16 is a perfect example. The ILC’s commentary considers what it terms ‘substantive rules’ (i.e., primary norms) in order to provide historical examples of complicity; mainly, cases of aid or assistance in cases of aggression [art. 3(f) UNGA Res. 3314, already considered as complicity in Brownlie’s International Law and the use of force by States’ 1960 edition]. The general comment to Chapter IV made by the ILC also mentions the Soering example (§ 4, p. 64). As you will surely know, academic works have also discussed complicity in other cases such as development help to undemocratic regimes, arms transfers, the Israel-Palestinian conflict, Australian passiveness in West Timor and even in the extraordinary renditions program. Recent works have added art. 58 DARIO to the discussion, for example, assessing State responsibility for voting in the relevant organ of an International Organization.

In my modest point of view, the discussion whether complicity is a primary or a secondary rule resembles somehow the old discussion whether fault is or not an element of responsibility in the ILC’s Project. As Prof. Weil once argued, « selon son humeur, chacun peut tout objectiviser ou tout subjectiviser, tout ramener au fait illicite ou tout ramener à la faute ». Here it could be argued : « chacun peut tout ramener aux obligations primaires ou aux obligations secondaires ». The first case would be represented the traditional Soering approach (positive obligations); the second may be found in El-Masri when the Court speaks of “attributing/imputing”. My personal intuition is that the conceptual relationship between attribution and positive obligations is a pertinent one but a never-ending discussion.

Secondly, it is possible to read the ILC’s commentary as permitting full shared responsibility in cases of complicity if the State (here Macedonia) complies with the ‘necessary element’ test:

In accordance with article 16, the assisting State is responsible for its own act in deliberately assisting another State to breach an international obligation by which they are both bound. It is not responsible, as such, for the act of the assisted State. In some cases this may be a distinction without a difference: where the assistance is a necessary element in the wrongful act in absence of which it could not have occurred, the injury suffered can be concurrently attributed to the assisting and the acting State. In other cases, however, the difference may be very material: the assistance may have been only an incidental factor in the commission of the primary act, and may have contributed only to a minor degree, if at all, to the injury suffered. By assisting another State to commit an internationally wrongful act, a State should not necessarily be held to indemnify the victim for all the consequences of the act, but only for those which, in accordance with the principles stated in Part Two of the articles, flow from its own conduct” (§ 10, p. 67, emphasis added).

In the end, I also find that more clarification is needed in what you consider ‘fresh’ approach followed by the ECtHR in cases of shared responsibility. State complicity (or IO’s complicity) remains an undefined ‘empty box’ disposition (covering almost any material conduct) that has almost never found express judicial recognition. Moreover, it includes an unnecessary test of ‘intention’ to the wrongful act that was wholly ignored by the ICJ in the Genocide case (although Prof. Dominicé suggested that it may be enclosed in paragraph 422 of the decision, Attribution of conduct, p. 286). So there is a real risk that art. 16 DASR ends as a kind of Swiss-army-knife in a hardware store: even though it is useful for everything, you will always use a more specific tool.

Best regards (and happy new year),

Asier Garrido (University of Salamanca)