Central Intelligence? Part Deux (Hess v. United Kingdom)

December 4, 2005 at 12:55am By: Mr. T Posted in Mr. T's Den

In my effort to continually engage all four or five people in the nation who follow the evolving doctrine of extraterritorial jurisdiction in regional European human rights law, I have been following up with research on the developing story about the secret CIA prisons in Europe. This story is getting bigger and bigger over the pond, for reasons obvious to all.

In anycase, although I still believe that the prisons situation will be adjudicated under the heavyweights of ECHR case law on extraterritoriality such as Ilascu (Russian liability for abuse of prisoners in proxy Moldovan separatist regime), Soering (UK responsibility for deporting prisoner to Virginia’s death row) and Assanidze (Georgian responsibility for custody of prisoner in Adjarian Autonomous Republic), I just reviewed today a pretty hard to find case called Hess v. the United Kingdom – which may not be available online, but is available in hard reporter form at UNL libraries. Hess is one of the earliest ECHR cases dealing with extraterritoriality, even before the Strasbourg Court or Commission knew that the extraterritoriality cases would ultimately become some of its most important (my opinion) decisions affecting international law today.

Here’s the (short) story: Hess is, yes, Rudolf Hess, who was sentenced to life in the four-power allied-controlled Berlin/Spandau prison following the Nuremberg tri

bunal. His wife sued the UK for ECHR violations decades later, including for an alleged violation of the Convention’s prohibition of torture and inhuman treatment (apparently, life in prison is too harsh a penalty for helping mastermind genocide). Spandau prison was located in the British controlled sector of West Berlin, and was guarded in monthly turns by military personnel of France, the UK, the US, and the USSR. In, literally about a one page decision, the European Human Rights Commission was charged with deciding whether or not the UK had jurisdiction over the prison to the extent that they would be required, as per the ECHR, to uphold the Convention’s human rights obligations.

The Commission noted first that:

“[T]here is in principle, from a legal point of view, no reason why acts of the British authorities in Berlin should not entail the liability of the United Kingdom under the Convention.”

OK so far so good. However, in a very superficial, extremely light analysis, went on to conclude that:

“[T]he responsibility for the prison at Spandau, and for the continued imprisonment of Rudolf Hess, is exercised on a Four Power basis and that the United Kingdom acts only as a partner in the joint responsibility which it shares with the three other powers.

The Commission is of the opinion that the joint authority cannot be divided into four separate jurisdictions and that therefore the United Kingdom’s participation in the exercise of the joint authority and consequently in the administration and supervision of Spandau Prison is not a matter ‘within the jurisdiction’ of the United Kingdom…”

Well, this isn’t factually analogous to the CIA prisons situation. However, I wonder if Hess will resurface whenever the CIA prisons case or cases hit the Strasbourg Court. If it does, it will likely be raised as an argument by respondent host nations of the prisons. And a very weak argument it would be for at least a few pretty distinct reasons: First, the sheer weight of recent extraterritorial cases that started with Louzidou (Turkish responsibility for violations in occupied Cyprus) and most recently ended with the UK’s Al-Skeini decision, command current analysis of imputability for extraterritorial actions. Second, this really isn’t an extraterritorial case at all, at least when it comes to the prisons (the allegations over transporting prisoners for torture abroad do however directly implicate the extraterritorial deportation cases). The prisons are located in European nations for crying out loud. If a possible defense is that these prisons were located within exclusive US control without the knowledge of host nation governments (which I doubt), that argument would still fail because both Ilascu and Assanidze still dictate that the host European nation would be responsible for failing to uphold the Convention’s protections on their own physical territory.

I end again with the same non-legal personal observation: Not only are the facts in the CIA prison situation not exactly analogous to those in Hess, but so is the political context, for obvious reasons not worth elaborating on. Which again leads one to ask – why in the world would those brainiacs at the CIA decide to locate secret prisons in Europe??? What couldn’t they afford the flights to Thailand or The Philippines? Blair and Berlusconi notwithstanding, we don’t ex

actly have a whole lot of friends in Europe. And I mean come on – they’ve got their own satellites to track the flights over there guys. Man.

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