Mohammed al-Asad’s life as he knew it fell apart in 2003, when he was kidnapped from his family home, secretly detained in a foreign country, and abused for over one year. Mohammed was a victim of the U.S. extraordinary rendition and secret detention program. He was never charged with a terrorism-related crime. Along with myriad others, he has effectively been denied access to U.S. courts, which have repeatedly declined to hear cases of rendition victims, invoking the state secrets doctrine. The Global Justice Clinic and its co-counsel Interights has brought a case before the African Commission on Human and Peoples’ Rights (“ACmHPR”) on Mr. al-Asad’s behalf. If the ACmHPR finds in favor of Mr. al-Asad, it will finally offer some justice to ordinary people such as Mohammed, whose human rights were grossly violated in the name of national security.
A Yemeni national who had moved to Tanzania for a better life, Mohammed started a family and built a business during his many years as a resident in Tanzania. In December 2003, he was abducted from his family home in Tanzania and forcibly transferred to a secret detention site in Djibouti where he was placed in isolation in a filthy cell, interrogated, and subjected to cruel treatment. He was deprived of all contact with the outside world: contrary to international law, he was forbidden contact with a lawyer, his family, or the International Committee of the Red Cross (“ICRC”). After two weeks, Djibouti handed Mohammed to CIA agents who assaulted him, stripped him naked, photographed him, dressed him in a diaper, and strapped him to the floor of a CIA transport plane. He endured 16 months of secret detention before he was transferred to Yemen in 2005 and eventually released. Read Mohammed’s declaration here.
During Mohammed’s secret detention, his family and friends searched frantically for him. They visited the local police station, immigration office, and prisons—to no avail. A Tanzanian immigration official eventually told them that Mohammed had been transported to Yemen. His father searched for him there without success. Desperate for information about his son’s whereabouts, Mohammed’s father filed a habeas corpus petition in the Tanzanian courts. During those proceedings, the Government of Tanzania disclosed to the court that Mohammed had been sent to Djibouti. Mohammed’s wife, Zahra, who had recently given birth to their fifth child, enlisted the help of the ICRC. Neither the government of Djibouti nor the government of the United States informed Zahra or anyone in Mohammed’s family of Mohammed’s whereabouts. Mohammed had effectively died a civic death. As Zahra explains, “The whole time Mohammed was in detention in Djibouti and in the other secret prisons, we never received any news of his whereabouts or any information about his health except for terrifying rumors”. Read Zahra’s declaration here.
Mohammed’s Quest for Justice
It is notoriously difficult for victims of human rights abuses committed by states to prove their case since they lack the resources and power of their abusers. That is particularly true of secret detention cases and especially those justified by national security arguments. The Global Justice Clinic believes that victims like Mohammed should not be denied justice because of legal technicalities, state secret doctrines, or a state’s refusal to investigate or accept responsibility for its actions. It considers, along with relevant UN human rights bodies and the European Court of Human Rights, that victims of human rights abuses, their families, and civil society have a right to the truth about human rights abuses committed in the name of counter-terrorism. For those reasons, the Global Justice Clinic and its co-counsel, INTERIGHTS, filed a complaint against Djibouti before the ACmHPR on behalf of Mr. al-Asad in 2009. It did so in the belief that Djibouti, like other partners in the U.S. extraordinary rendition program, should be held accountable for its role in Mohammed’s secret detention and torture.
Mohammed’s case is the first case of its kind in the African human rights system. His rendition and secret detention violated many of his core human rights, which are protected by the African Charter on Human and Peoples’ Rights (“ACHPR”), including the prohibition against torture and refoulement, the right to liberty, and the right to a fair trial.
The transfer of individuals to a state where they will be at a real risk of being subject to torture, especially in the context of an extraordinary rendition, violates the obligation of non-refoulement under Article 5 of the ACHPR. The European Court of Human Rights (“ECtHR”) in the El-Masri case reaffirmed that by finding Macedonia in violation the obligation of non-refoulement for its role in El-Masri’s rendition. They reasoned that third party reports regarding the practices and “interrogation methods used by the U.S. authorities on persons suspected of involvement in international terrorism” provided the court with “serious reasons to believe that, if the applicant was to be transferred into U.S. custody under the rendition” program, he would be exposed to a real risk of being subjected to torture or cruel treatment. Similarly, the transfer of Mohammed from Djibouti into CIA custody subjected him to a very real risk of being tortured, and therefore violated his right to non-refoulement.
Extraordinary rendition–which by nature involves the secret and arbitrary detention of individuals without trial-violates Article 6 of the ACHPR. Detention in the context of extraordinary rendition is unlawful, arbitrary and unjustified because it deprives the individual of basic substantive and procedural rights. In addition to being held in pre-trial detention for an unreasonable and typically indefinite period of time, detention in the context of rendition is incommunicado and involves violations of an individual’s basic due process rights, including the right to be promptly informed of charges, to be promptly brought before a judicial authority and to access medical and legal services. Mohammed’s secret, incommunicado detention in Djibouti lacked any due process; he was not brought before a judge or competent judicial authority, he was not told the reason for his detention, and he was cut off from all access to legal services, violating his right to liberty under Article 6 of the ACHPR.