Human Rights in Practice

Abu Zubaydah

Helen Duffy has represented Guantanamo detainee and rendition victim Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) in international proceedings, at the European Court of Human Rights and before UN bodies, since 2008.

In 2002, Abu Zubaydah was detained by the CIA in Pakistan and disappeared into secret detention at a series of CIA 'black sites,' subjected to systematic torture, forced disappearance and secret detention. As the first of the rendition programme’s “high-value detainees”, he has been described as the 'guinea pig' for the CIA's 'enhanced interrogation techniques.' Although it is now clear that he was not who he was alleged to be at the time of his capture, he remains detained without charge or trial – a so-called “forever prisoner” – in Guantanamo. Although held since March 2002, Abu Zubaydah has never been charged or tried. There has been no habeas determination of the lawfulness of his detention. There has been no accountability for his torture and prolonged arbitrary detention in any of the implicated states.

Detailed evidence is in the public domain chronicling the abuse of our client. 1001 references to Abu Zubaydah in the redacted summary of the US Senate Intelligence Committee report of December 2014 exposes the extreme cruelty he was subjected to, and the misinformation generated by the US authorities to justify it. A comment on the relevance of the report’s findings to our client’s case can be found here.

We have brought multiple cases on his behalf to international courts and bodies (see below) against many states that cooperated to make the rendition programme possible, and obtained several compelling judgements and decisions. Yet the US, and several other states, have yet to acknowledge wrong-doing and offer any reparation. The on-going international litigation and follow up efforts are part of a larger effort to secure freedom and justice for him and other victims of the ongoing ‘war on terror.’

u.n. working group on arbitrary detention: ABU ZUBAYDAH V. United States, Afghanistan, Lithuania, Morocco, Poland, Thailand and the United Kingdom (decision 28 april 2023)

On 30 April 2021 we filed a complaint on behalf of Abu Zubaydah against the United States and 6 other countries – UK, Thailand, Poland, Morocco, Lithuania, Afghanistan – before the United Nations Working Group on Arbitrary Detention (UNWG).

On 28 April 2023 a ground-breaking decision of the UNWG was published. The UN body reached damning findings on the unlawfulness of Guantanamo, torture and enforced disappearance by the US and the 6 other states that share 'joint responsibility' for the ongoing violations of Abu Zubaydah's rights. It called for his immediate release, after 21 years of arbitrary detention without charge or trial, compensation and the investigation of what it terms "crimes against humanity."   

A summary of this crucial decision, our quotes and reflections are in the attached press statement.

With the exception of Afghanistan, all states had responded to the complaint during 2022. Our response on behalf of Abu Zubaydah to those states submissions are here: United States, Morocco, United Kingdom, Poland, Lithuania and Thailand.

Our original Application to the UN Working Group and Press briefing are here, and some of the coverage of the filing in 2021 is here, here, here and here.

EUROPEAN COURT OF HUMAN RIGHTS: Abu Zubaydah v Lithuania

On 31 March 2018 the ECtHR handed down a unanimous judgment against Lithuania, finding it responsible for cooperating with the US by hosting a “black site” on its territory and refusing to conduct an effective investigation or to pursue accountability. In an unusually long and detailed judgment, the Court provided a comprehensive review of the facts in relation to our client’s case and the ERP, making a contribution to the historical record in an area that the Court noted remains “shrouded in secrecy.” The Lithuanian Government's observations throughout the case were revealing of its policy of denial and failure to meaningfully reckon with the past. The Court has made clear it must now investigate thoroughly and effectively and hold to account those responsible, or be in ‘continuing violation’ of the European Convention. The judgement is here, and a brief summary here. Our final submissions in the case prior to the hearing are here.

In December 2021 the damages award ordered by the Court was finally paid, but other aspects of implementation remain sadly lacking. HRiP continues to engage to ensure effective implementation, overseen by the Council of Europe Committee of Ministers (see Implementation work below).

EUROPEAN COURT OF HUMAN RIGHTS: Abu Zubaydah v Poland

On 24 July 2014, a landmark ECHR judgment was handed down against Poland - the first case (alongside al Nashiri v Poland handed down the same day) to address a European state’s role in hosting a CIA black site on European soil. The judgment found Poland responsible for violations of Abu Zubaydah’s rights to freedom from torture, liberty, fair trial and private life. It describes at length the 'abundant and coherent' evidence from official US documents, independent reports and other sources, supplemented by the evidence given to the Court itself, on secret detention and Polish complicity. The Court found that the evidence conclusively established Polish responsibility for the torture and illegal detention of Abu Zubaydah, for failing to conduct a meaningful investigation and its persistent, but ultimately unsuccessful, attempt to cover-up the truth. Implementation of this judgment, like that against Lithuania, is also pending before the Committee of Ministers. The Committee has taken the unusual step of expressing its “deep concern” about the “flagrant denial of justice” facing our client directly to the US authorities. Like Lithuania, Poland paid compensation (in 2022) but it has yet to provide meaningful implementation of the judgement (see below).

Council of Europe Committee of Ministers - implementation of ecThr judgements

In recent years the Committee of Ministers of the Council of Europe has actively engaged in the oversight of these crucial judgments. The Committee has criticised both Lithuania and Poland regarding the failure of each of these states to adequately implement the judgments against them, and it has expressed concern at the ongoing lack of cooperation by the United States. A short summary from the Committee, or a sample of our ongoing submissions (eg. 2022 submissions) to the COM on failure of implementation are here. On 11 January 2022, together with the representatives of Mr al Nashiri, we wrote an open letter expressing concern regarding the poor state of implementation of these important ECHR judgements and calling for more robust oversight by the Committee and the Parliamentary Assembly of the Council of Europe. In March 2022 the COM handed down its latest decision expressing concern about implementation in both Poland and Lithuania. As there has still been no recognition, investigation, accountability or truth-telling by either state, or beyond, it is imperative that the Committee maintains its oversight of these important cases.

ONGOING LEGAL CHALLENGES ON THE NATIONAL LEVEL

The use of international mechanisms complements ongoing efforts nationally by a range of partners to pursue justice for Abu Zubyadah. These include civil action pending in UK courts concerning the UK government’s role in facilitating his torture, including passing questions to the CIA to be put to Abu Zubaydah despite knowledge of his torture. This was one of the findings of the UN Working Group on Arbitrary Detention in 2022.

Domestic efforts also include as yet unsuccessful challenges to the partial closure of the investigation in Poland. This in turn is being bolstered by international action before the Committee of Ministers above.

US counsel also sought to engage US courts to subpoena the psychologists contracted by the CIA and involved in his torture to assist with the investigations in Poland (and potentially Lithuania). However the US government sought to block this access to information concerning his torture on state secrecy grounds. Although a US court of appeal found against the government, the US Supreme Court upheld a broad-reaching approach to state secrecy in United States v. Abu Zubaydah on March 2022. While troubling, the litigation was not without effect. It drew considerable media attention to our client’s situation, engaged many interveners in support of our client’s position, and provoked notable judicial engagement and commentary. It was the first time that a U.S. Court recognised the treatment of our client as ‘torture,’ while a powerful dissent stated that while state secrecy “may shield the government from some further embarrassment, [] we should not pretend it will safeguard any secret”.

Al Asad v Djibouti, African Commission on Human and Peoples' Rights 

Mohammed al-Asad, a Yemeni national, was detained in Djibouti in late 2003/early 2004 as part of the CIA's rendition programme. He was transferred from Djibouti to secret “black site” detention for 16 months, before being returned to Yemen. His case, which remains pending before the African Commission on Human and Peoples' Rights, is the first international case exposing the role of African states in the US rendition, secret detention, and torture programme. Advice and support was provided in this case to The Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law which represents the family of Mr al Asad who, like many, died before seeing justice done.