Interview with Helen Duffy
This podcast was recorded in the summer of 2017.
Transscript
Speaker 1: The following podcast is a presentation of the Washington College of Law at American University. Any unauthorized use or distribution is strictly prohibited.
Claudia Martin: Hello, my name is Claudia Martin. I am co-director of the Academy on Human Rights and Humanitarian Law, and I'm here with my colleague Helen Duffy. Helen is a professor of International Human Rights Law and International Humanitarian Law at Leiden University. She also founded and runs the Human Rights in Practice. An organization that provides legal representation and supporting human rights cases before international, regional or national courts. In recent years, Helen has been involved in representing victims of the practice of extraordinary renditions, mostly before the European Court. One of the cases that she has been deeply involved is in the case of Abu Zubaydah. It's a great pleasure to have you here to ask you a few questions about the case, and about your vision on the impact of the case. I would like to ask first, to start the conversation, what is the practice of extraordinary renditions and why did you get involved in this cases?
Helen Duffy: Okay. First of all, thanks so much Claudia for the invitation to be here. It's a real pleasure. The Extraordinary Rendition Program, as is now I think quite well known, was a program that was introduced post 9/11. Authorized at the highest levels of the US administration and operated by the CIA, but with which as we now know approximately 57 states around the world cooperated. It was a program of secret detention, torture for the purpose of intelligence gathering. One of the victims in fact, the first so called high value detainee, who was taken into that program was Abu Zubaydah, who I represent in these international human rights proceedings.
Claudia Martin: Can you tell us a little bit about the case? How did you get involved in representing him and what is the status of the case right now?
Helen Duffy: Yes, so there are several cases that are brought on behalf of Abu Zubaydah to the European Court of Human Rights, and one of those cases was a case that was brought against Poland and another against Lithuania. The Lithuania case is still pending, so it's fully-briefed, we've had the hearing and we're now waiting for judgment in that case. The first of the cases was the case against Poland. Poland hosted what is now known to have been the largest of the European black sites or secret detention sites on European soil. This case against Poland was decided by the European Court in 2014, the Abu Zubaydah against Poland case. It came out at the same time as another judgment against Poland, The Al Nashiri against Poland case. Though the European Court found Poland responsible for the unlawful detention, for the torture, for the lack of a fair trial, guarantees, for violations of his right to private life of course, and responsibility on the part of Poland for the decision to allow the transfer over onto further secret detention, and ultimately to Guantanamo Bay where Abu Zubaydah is held today.
Claudia Martin: What's the impact of those cases in Europe and what was the impact in the US? Did the US care at all? Do you feel that the outcome of the cases have been discussed in the US? What is your view on that?
Helen Duffy: Yeah, it's always quite hard to evaluate impact, and I think in a case like this it's particularly difficult. I think the case had a lot of resonance. You know, it's been referred to widely, I think partly because of its jurisprudential impact if you like. The impact of finding a state responsible for these types of intelligence cooperation. Which, of course, there are many widespread practices of intelligence cooperation that lack accountability and transparency. Of course this is an extreme example of that, and I think that it was a significant judgment. It was a very detailed judgment. It was a recognition of all of the facts, or as many facts as were available to the European Court. I think it contributes in a way to the historical record of what happened in relation to the Extraordinary Rendition Program, and the responsibility of states like Poland that made it possible by allowing the CIA to use their territory. I think both for its legal impact, if you like. Recognizing the right to truth, standards that are set down in terms of the obligation to thoroughly investigate and prosecute these types of crimes. It has some significance as well as in its statement. Very, very detailed, unusually detailed statement of facts in that judgment. Another level of impact I suppose is the fact that Poland did respond. Poland does claim to be investigating and prosecuting still these, or investigating rather, with a view ultimately to potentially prosecuting people. The European Court found that what it had done in terms of investigation didn't meet the court's standards. It wasn't an effective investigation, a thorough, independent investigation. I'm afraid to say all indications are that that remains the case. However, Poland did respond by saying that they are investigating and prosecuting. There have been discussions in the context of the Committee of Ministers of the Council of Europe. That's where cases that have been decided by the court go for implementation purposes. In that context, Poland has come up with an action plan for dealing with the situation and the investigation prosecution. Perhaps there is some kind of discussion. There is some kind of vehicle, if you like, to try to hold the state to account for its failure to meet its obligations thus far in that sense. Compensation was awarded by the court. Poland has said that it will pay that compensation that's currently held in an account in Poland. In that sense, I think there is some kind of discussion, and the case in a way partly has been a vehicle to facilitate that ongoing discussion, and hopefully some kind of pressure on Poland and on other states to do that. We do also know, and Poland indeed has made much of this before the Committee of Ministers and elsewhere, that the US has refused to cooperate with Poland in relation to its investigation. That's also the case in relation to other states. There's growing evidence of what the former Council of Europe Human Rights Commissioner referred to as enormous pressure from Washington on authorities in Europe and elsewhere, that are seeking to report and to carry out this investigation. No indications of cooperation from the US or reactions from the US as such, so it is very difficult to evaluate. What I hope, and I think that are early indications in a sense that one of the levels of impact of the case will perhaps be on cooperation practices in the future, right? That states will think twice about rendering this kind of cooperation without ensuring that they're not being complicit in some kind of very serious human rights violations as in this case. That's I think one of the levels that we can hope to see impact on.
Claudia Martin: It's very interesting that you are saying that because when you were describing I was thinking about that, if the case will have a real impact in terms of non-repetition within the Council of Europe. Countries will think again about getting involved in these cases. If you think that this will be the case of or because the pressure and the particular situation, and the context in which these programs developed may happen again without any restriction.
Helen Duffy: It's hard to tell, but it's important that you mention non-repetition. In these cases we pursue reparation we always say, and of course there’s lots of different levels of that reparation. Part of that is the investigation and prosecution that we're talking about in itself. Part of it is the recognition of this person as a victim of these horrible crimes, but a really important part ... In this type of case I think a really important part of reparation is indeed non-repetition. I think partly what these cases try to do, and they're obviously a tiny piece of the puzzle, right? That there are many other ways in which this has to be done. I think is to try to understand better what happened and why it happened with the view to non-repetition, to really trying to learn some of the lessons. In what ways did other states make this possible? Not only the US. How did it come to pass that the US authorized a systematic, authorized, designed and detailed and carried out this systematic practice of torture and enforced disappearance? How did it come to pass that all of these other states around the world made that possible in various ways through different forms of cooperation and what do we have to learn for the future? I'm reasonably optimistic that we're now in a position where we understand a lot of that a lot better. Whether it's how to political profile through some of these legal action and other action that wouldn't otherwise have had and there are those discussions, there are protocols emerging, there are proposals for reform and some reform has actually taken place in terms of intelligence agency cooperation. Perhaps there's room for a tiny bit of optimism in that respect.
Claudia Martin: Any lessons learned, challenges that you face when litigating the case? Anything that you would like to tell a little bit about your experience with litigating the Zubaydah case?
Helen Duffy: Yeah, I think in a case like this the challenges of bringing legal action for people like Abu Zubaydah are enormous. We have to remember his particular situation. He's now in Guantanamo Bay. He was taken into secret detention in 2002, subject as we know to the most horrendous torture. All of the enhanced interrogation techniques were used on Abu Zubaydah. Waterboarding, being held in a coffin for days on end, slammed into walls, et cetera, et cetera. A litany of abuse, so we know that he's been subject to all of that torture. He's still not been charged with any crime or been subject to any meaningful process whatsoever. He's held in a situation where he still can't communicate with the outside world, so our first problem was that he couldn't communicate directly with the European Court of Human Rights. We couldn't get his affidavit declassified so that he could have a voice in the proceedings, which of course is one of the things that you try to do with these proceedings, is to give victims a voice and enable them to state their case and to get some kind of recognition as a result. One of the problems and one of the challenges was just the ability to provide information, direct information to the court, which was limited. We couldn't even get the power of attorney for him declassified because of the complete secrecy surrounding Abu Zubaydah and his case. Access to evidence and information is of course always challenging, and the politicization that we talked about in terms of the lack of political will to investigate, and the pressure on states not to investigate. I think that there have been legal challenges of course in the domestic level, assertions of state secrecy in Lithuania. Just as we've had assertions here in US courts of state secrecy precluding the ability to bring certain types of action domestically. Legal obstacles, political obstacles, practical obstacles, I think many obstacles and challenges. At the same time I think that in some context we are seeing a more robust approach from courts in face of these obstacles. Of courts ensuring that justice can be done not withstanding all of these obstacles, and of course practice varies and this has not always been the case. I think there are examples that are glimmers in that sense, and the European Court's approach to evidence and proof, which is a more flexible approach that take into account the realities facing victims in this kind of situation. The realities about lack of access to certain types of evidence for example. We saw a flexible approach by the court, I think, to ensure that justice could be done. On the domestic level I think we see some examples of that as well.
Claudia Martin: Are you aware of other cases being litigated regarding the practice of extraordinary rendition in relation to these cases that you were involved in?
Helen Duffy: Yeah, there are a series of cases that are underway, both domestically and internationally. At the European Court there's currently another case that's recently been lodged against Lithuania on behalf of Al Hasawi. There was a case brought, El-Masri against Macedonia, a case brought also against Italy for the Abu Omar abduction. There's a series of cases, and they look perhaps at the different roles that different states had in making possible the Extraordinary Rendition Program. Our case is the Abu Zubaydah against Poland case was the first case that looked to black site detention. Where states essentially allowed the CIA to run secret detention sites without any oversight, and they facilitated that in various ways, allowing them to come and go without any kind of customs checks for example. That's black site detention. In other places the authorities cooperated with abductions and transfers out of their territory as in the Italian case. Macedonia was a slightly different set of facts again, so different forms of cooperation. One form of cooperation where we haven't seen international action was the number of states that allowed their territory to be used for refueling for example. There are many levels of complicity, ways in which states have aided and assisted. It's quite difficult to bring international action for a host of jurisdictional reasons in relation to those cases. I do think it's important that we also try to see how to ensure the responsibility, the accountability of those states that participated, in a range of different ways in aiding and assisting, and facilitating this practice beyond the black sites and the cooperation on abduction and transfer.
Claudia Martin: Do you limit yourself to work in the European Court or do you have any role in the advocacy done in the US on behalf of these victims?
Helen Duffy: Yes. I haven't been directly involved in US advocacy. There a lot of US partners and you know there is a conversation between litigators and advocates involved in these cases. The idea of course is that each of us can perhaps contribute slightly differently, but that we will compliment what one another are doing. Of course the advocacy and a lot of the investigation and research that's been done feeds into the litigation. I would hope that the litigation feeds into the advocacy and provides another tool, if you'd like, for advocacy purposes. There is a level of networking and cooperation between lawyers, advocates, NGOs that are involved in these things. I think there needs to be more of that, because I think the challenge ahead given the pressures that come out of a case like this, particularly at this time, but it's always been challenging. I think it's going to be absolutely essential that there's a real concerted effort by different people, by civil society. We're talking about legal actions, of course also on the International level, in order to really ensure some kind of accountability in face of these crimes. That we can really learn lessons and turn the page, because up to now after all there have been important actions. I think there is cause for tiny glimmers of optimism, but the level of accountability has been negligible and impunity is really the rule up to now. Of course there's a question of how much we can talk about non-repetition if we've not had any meaningful individual accountability, only accountability at state level.
Claudia Martin: Related to that because you were mentioning also that you were not sure if Poland was investigating, will eventually comply fully with the judgment of the European Court of Human Rights. Do you think that there's a value in telling the story? Is that sufficient that people know at least what happened, even if eventually the judgment is not fully complied?
Helen Duffy: I don't think it's sufficient, but I think it's really important. I think it's really important to tell the story, to investigate the story, to have the story ratified by the court, to have the court's condemnation of the violations. I think all of those things are very important. We haven't spoken much about the victim. I've talked about his current situation but of course one of the reasons, first and foremost when you bring these cases you bring them on behalf of an individual, right? I think an individual like him who's been completely denied justice, the European Court talked about his current situation in Guantanamo as a flagrant denial of justice. The guy is held in incommunicado, a so-called forever prisoner, where there is no commitment whatsoever to subject him to any meaningful legal process. I think for someone in that situation it's certainly not sufficient, but it's important that a court somewhere recognizes what happened to him, recognizes him as a victim and those that were responsible for him. I think that is incredibly important. It's important for all of us that we understand a little bit more as we said and that we try to learn lessons from it for the future, but it's not sufficient. There has to be accountability. If these international obligations are to be taken seriously at all there has to be implications for individuals. We're talking about the most serious crimes under international law. Systematic torture, enforced disappearance of persons. There has to be individual accountability as well as state accountability.
Claudia Martin: You have been involved in doing litigation and human rights work for many, many years. Given the current political environment, the Trump administration in the US and other governments in Europe, how do you envision human rights work in the upcoming years? Are you pessimistic? Do you have any hope? You were saying that accountability is very important in these cases, but if we relate that to the political environment probably we don't see it happening soon. Hopefully eventually, but I think it's important to conclude the conversation that you give us a vision of how you see human rights work in the future.
Helen Duffy: Oh gosh, that's far too big a question Claudia, but I think it's hard to be honest. I'm terribly optimistic at the moment because the human rights challenges are so enormous. At the same time I do think there's just so much work to be done. I talked about cooperation and coordination. I think this is clearly a time where human rights advocates need to pull together. It's also a time where we see emerging human rights advocates. We see more and more people reacting to what they see around the world, and seeing human rights as something that's fundamental. We have new human rights advocates of all shapes and sizes springing up all the time. I think that's going to be incredibly important for the future. Really trying to explain and make more accessible what we mean by these human rights obligations. It's a terribly important part. Legal education also more broadly, a broader social discussion around the meaning of human rights and the importance of human rights. There's always an opportunity that comes with the challenge. I also think getting back to where we started, and perhaps my little role in this very big challenge, I do think it's a really important time for the role of the courts. I think when we see the sort of ... Not just the executive excess and abuse of human rights, but real flagrant denial of human rights around the world. A blatant refusal to cooperate and blatant refusal to respect human rights. I think it's an incredibly important time for robust courts to provide some kind of balance against that. I'm confident the courts will do that the more the executives try to shut down the courts and try to undermine the rule of law. I think there is a real opportunity for a more engaged judiciary. Along with that, we also have to rise to the challenge of explaining the significance of the judicial role, right? Explaining the importance of that within a broader rule of law framework. Lots of challenges.
Claudia Martin: Thank you very much Helen. It's always a pleasure to have you here at the American University teaching, and to have this time to share with you your experience, and your knowledge on the cases that you have litigated. It's very special. Thank you very much.
Helen Duffy: Thanks Claudia.