The ECHR and the Right to Remedy for the Victims of Extraordinary Renditions: The Case of Khaled El-Masri

Abstract

In 1995, United States President Bill Clinton enabled the Central Intelligence Agency to use rendition to bring suspected terrorists in front of a United States Court. After 9/11 this policy shifted from bringing suspected terrorists to justice to bringing suspected terrorists to ‘black sites’, where they are interrogated and abused. Khaled El-Masri is a victim of the CIA rendition programme. He was abducted in Macedonia after being mistaken for Khalid Al-Masri, a suspected member of Al-Qaeda. El-Masri was held for five months in Afghanistan where he was submitted to ill-treatment. When they realised that El-Masri was innocent, the CIA released him in the middle of the night, in a forest in Albania. El-Masri lodged a complaint before the Federal Courts of the United States but his claim was dismissed in the name of the ‘state secret’ doctrine. El-Masri lodged an application in front of European Court of Human Rights (ECHR) which accepted to consider the case. The thesis of this paper is that the ECHR could put an end to the absence of remedies for the victims of extraordinary renditions and encourage European states to stop participating in such a practice, by condemning them to compensate the victims. The first part of the paper will analyse the evolution of the rendition programme. The second part of the paper will analyse the right to liberty and security. The paper will then focus on the prohibition of torture and establishes to what extent the state of Macedonia could be held responsible for the ill-treatment El-Masri was subjected to. The last section will analyse the right to remedies. The conclusion of the paper is that the analysis of the Convention and the ECHR jurisprudence shows that it is possible to hold Macedonia responsible for the violation of human rights committed against El Masri. With this case the Court has the opportunity to put an end to the impunity of states accomplice to the CIA rendition programme.