Central Intelligence?
Much uproar has occurred about the recent disclosure that the CIA has been operating secret detention facilities in Europe since 9/11. My prediction is that European Court of Human Rights precedent will have direct application. Specifically, last year’s Grand Chamber ruling in Ilascu v. Moldova and Russia.
The Ilascu case originated from facts directly related to Moldova’s civil war, where the breakaway “Moldovan Republic of Transnistria” declared its independence and allegiance to Russia. The MRT, with the help of “volunteers” from the Russian federal army, set up a virtual independent nation within Moldova. Moldovan forces – for obvious reasons - simply could not stand up against the combined forces of MRT separatists and the Russian army. As a result, Moldova found itself in the classic position of being sovereign de jure but lacking jurisdiction de facto. In the MRT, separatist forces detained Moldovan loyalists in prisons, where they weren’t exactly treated like distinguished guests. The prisoners went on to sue both Russia and Moldova for multiple violations of the ECHR and won.
Now if you haven’t read the Ilascu case, know that it is an extremely fascinating decision – also apparently the longest Strasbourg ruling ever – and much of the debate focused on whom to impute liability to for violations of the ECHR. On Russia it was a no-brainer. Russia 
211; not exactly a paragon of virtue and defender of international human rights - had directly aided the MRT militarily and financially. The difficult question revolved around Moldova’s obligation to article 1 of the ECHR: “The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined . . . of this Convention.” As a matter of immediate impression, it strikes one as being somewhat unfair to impose an obligation on little Moldova to protect individual rights of persons detained in a breakaway region by separatists aided by the Russian army. The Court, however, ruled that Moldova was liable for the mistreatment of the prisoners, even though they had been committed by separatists in an area they had no control over. The ruling makes sense, in my opinion, for sake of consistency in application of law let alone the literal reading of article 1.
Now comes the secret CIA prisons situation. As a matter of customary international law, ships, embassies and military bases overseas usually retain jurisdiction of the home nation over actions committed within those spheres. However, unless there is somehow some agreement between the US and the European host nations to contract out human rights obligations (which I kinda doubt), Ilascu indicates that the host nation or nations are going to face the Strasbourg Court and its not going to be pretty for them, and rightfully so.
I might add, on a purely personal level, this whole thing makes me wonder – who was the Einstein at the CIA who decided to locate secret prisons in Europe of all places? I mean come on guys, if you’re going to outsource secret detention facilities and/or torture, at least outsource all of it to corrupt, debt-ridden or US aid-dependent countries with crappy human rights records like Egypt or Pakistan. Sheesh!
The Comments
Matt November 7, 2005 at 1:19am
Outsource the torture facilities to Egypt and Pakistan? Man, underneath it all you’re just a nasty realist
The story I briefly heard in the news was focused on detention facilities in former USSR gulogs (sp?), which from a PR standpoint, is going to be much worse than secret facilities in Eastern Europe.
Mr. T November 7, 2005 at 8:40pm
I hadn’t heard about prisons in Russia itself or ex-Soviet republics, only in Romania and Poland. Russia’s human rights record is atrocious, particularly with on-going events in the Caucasus. I am a little surprised though to hear of the possibility that Russia would allow CIA personnel to act within Russia itself (if CIA personnel are directly managing the purported detention facilities). It wouldn’t however surprise me if there are CIA camps in some of the former Soviet republics of Central Asia north of Afghanistan and so on.