High-level US officials are yet to face justice for their roles in the US torture and rendition programmes.
On January 16, the European Court of Human Rights issued an important ruling in the context of accountability for abuses perpetrated during the United States-led “war on terror”. In the case of Mustafa al-Hawsawi v Lithuania, the court found that the latter violated the European Convention on Human Rights due to its complicity in the CIA’s secret detention programme and its mistreatment of al-Hawsawi, a Saudi national.
Lithuania was ordered to pay compensation to the victim worth $108,660 for the time he was at “Detention Site Violet”, a CIA black site it hosted. Al-Hawsawi is currently detained at the Guantánamo Bay detention centre, alongside 29 other Muslim men.
This judgment is the latest in a series of court rulings holding European countries accountable for their involvement in post-9/11 abuses. The European Court previously ruled against Poland, Romania, Italy and Macedonia.
Other European institutions, including the European Parliament and the Council of Europe, as well as individual European countries, have also taken measures for accountability, although they have not always been ideal. The UK paid over $28.8m to Iraqi victims for documented war crimes and abuses during its involvement in the US-led invasion of Iraq.
Additionally, compensation was provided to British citizens detained in Guantánamo and to two Libyan families who were kidnapped and tortured with the help of British intelligence. However, the UK abandoned an independent inquiry into post-9/11 extraordinary rendition and torture by its forces and closed an investigation into alleged crimes in Iraq.
Italy convicted in absentia 23 Americans, including CIA agents and an air force colonel, for kidnapping Hassan Nasr, an Egyptian imam based in Milan and handing him over to Egypt, where he was tortured. An Italian court also sentenced the former military intelligence chief and his former deputy to 10 and nine in jail respectively for their involvement in the case.
Sweden compensated Mohammed Alzery and Ahmed Agiza, who were forcibly deported to Egypt at the request of the CIA and tortured. Prosecutors also opened investigations in France, Portugal and Spain over the CIA’s use of their airports for renditions, although they did not result in formal charges. There remains an ongoing criminal investigation into CIA activities in Poland.
Canada, too, apologised and paid $8.1m to Omar Khadr, a Canadian national, over its role in his imprisonment in Guantánamo; it also compensated Maher Arar, another Canadian national, with the same amount over its role in the US government’s decision to deport him to Syria, where he was detained for a year and tortured.
While these court cases and settlements highlight efforts to bring to justice European and other countries complicit in the abuses perpetrated during the “war on terror”, they underscore the persistent lack of accountability for the US, its chief architect and leader.
As a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the US is obligated to provide redress to survivors of torture carried out by its government forces. But legal barriers have often prevented survivors from pursuing justice in US courts.
By invoking the state secrets privilege, for example – most recently used in the United States v Zubaydah case – the government can withhold information it deems sensitive to national security. In the lawsuit filed by Abu Zubaydah, a Saudi-born Palestinian man currently held in Guantanamo, the defence sought evidence about his torture that the government argued would harm national security; the Supreme Court ruled in the government’s favour.
Similarly, historically, court dismissals, have been the result of the US government citing immunity – which has protected its forces as well as private contractors.
The US has also bypassed global and regional instruments of justice. It has warned of reprisals against the International Criminal Court if it launches an investigation into US crimes in Afghanistan. Additionally, it maintains that the American Declaration of the Rights and Duties of Man is not binding, rendering decisions and recommendations from the Inter-American Commission on Human Rights (IACHR) nonbinding. In 2020, the IACHR found the US responsible for the torture, abuse and indefinite detention of Djamel Ameziane, a former Guantanamo detainee, and recommended the US compensate him, which the US government has not done so far.
There have been only minimal steps towards accountability within the US judicial system. An investigation into abuse at Abu Ghraib prison resulted in the court martial of 11 low-level soldiers. An Obama-era investigation into 101 CIA interrogations that used “enhanced interrogation techniques” found only two merited further inquiries. In 2012, the investigation was closed without further action.
According to Human Rights Watch, out of 506 claims made as of 2007 under the Foreign Claims Act, which allows foreign nationals to seek compensation, there is a record of only one being paid – $1,000 for unlawful detention in Iraq.
Settlements were reached in two lawsuits against private military contractors. In 2013, a defence contractor paid $5.28m to 71 former detainees held in Abu Ghraib and other black sites. In 2017, a case brought by the American Civil Liberties Union on behalf of three torture victims reached a confidential settlement with psychologists James Mitchell and Bruce Jessen, who were paid over $80m by the US government to create the torture programme.
And despite 18 dismissal attempts, a lawsuit launched by four Iraqi torture victims against government contractor CACI International for torture at Abu Ghraib is heading to trial.
These lawsuits and investigations have fallen short of adequately addressing the scale and severity of the harm inflicted on victims during the “war on terror”. Lack of redress further compounds the suffering of those who have endured physical and psychological trauma. To date, no senior government or military official has been held responsible for post-9/11 policies and actions.
The US remains unwilling to face accountability for acts of torture, as it continues to detain 30 men in Guantánamo in conditions that amount to ongoing cruel treatment. It is long past due for a reckoning. The US is not above international law and must not be allowed to continue dodging justice.