The Council of Europe’s Committee of Ministers (COM) has published two decisions in relation to the implementation of the European Court of Human Rights (ECtHR) judgements in Abu Zubaydah v. Lithuania and Abu Zubaydah v. Poland. The Committee of Ministers, a political body, is charged with overseeing the full implementation of ECtHR judgements and has issued decisions calling for action by states for several years. The decisions adopted on 21 September 2023 and recently published online, represent a significant intensification of the Committee of Ministers’ efforts to ensure states seriously their obligations to bring to an end our client’s plight at Guantanamo and to give full effect to these groundbreaking judgements.
- The COM expresses its ‘deepest concern’ about ‘urgent humanitarian situation’, arising from his ongoing arbitrary detention without charge or trial since 2002.
- It joins other voices, including the UN Working Group on Arbitrary Detention and the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, in finding the situation at Guantanamo to amount to cruel inhuman or degrading treat or torture.
- The decisions refer back to the judgements of 2014 (Poland) and 2018 (Lithuania) which make clear both states’ obligations to carry out a full and effective investigation and to make representations with a view to bringing the ongoing “flagrant denial of justice” in our client’s case to an end. Responsible states must ensure the measures it takes are as effective as possible (which, as the COE has reiterated frequently, must be individual and collective).
- The decisions are also critical of the United States, not only for the CIA torture programme but the ongoing violations that in their totality amount to torture cruel inhuman and degrading treatment today, and for US non-cooperation with other states which is repeatedly raised by other states as an impediment to investigation and reparation.
- Notably, the decision adds that given the growing urgency of the issue all other member states of the Council of Europe and the Secretary General should seek to intervene and to raise his situation in relations with the United States.
These decisions are especially timing as all 6 states that the UN Working Group found to be in violation of their obligations are due to report on measures taken to given effect to the decision by the end of this month. Moreover the US is up for review of compliance with its human rights obligations before the UN Human Rights Committee on 17 October.
The pressure must increase on the US to end its flagrant violation of our client’s rights. All other states should be asked what measures they are taking - including offers to relocate Abu Zubaydah and other meaningful assistance and cooperation - to finally bring an end to the shameful ‘flagrant denial of justice’ of his arbitrary detention at Guantanamo.
Helen Duffy
15 Oct 2023
Highlights from the decisions in relation to both states follows:
The Deputies
1. recalling that in the present judgment(s) the European Court established [] responsibility on account of the authorities’ knowledge of and involvement in the implementation of the CIA “High-Value Detainee Programme” and found serious violations of several Convention rights … in the context of an “extraordinary rendition” operation which enabled the United States authorities to bring the applicant illegally under United States jurisdiction;
2. recalling further, with the deepest concern, that the consequences for the applicant of the violations of the Convention found by the Court have not been remedied as he remains in “indefinite detention”, without charge since 2002 and without safeguards against arbitrariness, and at risk of further inhuman treatment;
3. stressed that Mr Abu Zubaydah’s situation raises urgent humanitarian concerns, as also attested by the recent findings of United Nations expert bodies, in particular [CIA torture and lack of any prospect of a fair trial], and that the cumulative conditions of his continuing detention and other factors related to the arbitrariness of the detention at the Guantánamo Detention Facility amount to cruel, inhuman, and degrading treatment, and may also meet the legal threshold for torture;
4. restated their profound concern at the United States authorities’ refusals, so far, to support requests for diplomatic assurances against the grave risk faced by the applicant;
5. recalling the Committee’s urgent calls for a stepping up of […] diplomatic efforts vis-à-vis the United States;
6. urged the [] authorities to intensify their diplomatic efforts aimed at seeking to remove, as far as possible, the effects of the violations suffered by the applicant, including by raising the issue at a higher level;
7. invited the authorities to inform the Committee of their assessment whether, given the applicant’s current situation, as it emerges from the above-mentioned findings of United Nations expert bodies, they have deemed it necessary or advisable to change the focus of the representations they have made so far to the United States authorities;
8. recalled once more that the United States has observer status with the Council of Europe and … exhorted them accordingly to reconsider their position and to provide all necessary assurances and assistance or take equivalent measures;
9. in view of the urgent aspects, called on the authorities of the other member States of the Council of Europe and on the Secretary General to raise the applicant’s situation in their contacts with the United States authorities; invited the Secretary General to transmit this decision to the Permanent Observer of the United States to the Council of Europe;
10. as regards the pending domestic investigation, [called for more effective action and] invited information of any relevant developments …;
11. emphasising once again the importance to thoroughly explore every other relevant avenue for co-operation with member and non-member States alike and with international institutions or bodies, … in this respect…