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El-Masri v. The Former Yugoslav Republic of Macedonia (Eur. Ct. H.R.)

Published online by Cambridge University Press:  20 January 2017

Christina M. Cerna
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Extract

On December 13, 2012, the Grand Chamber of the European Court of Human Rights (the Court) issued a final judgment in the case of El-Masri v. the former Yugoslav Republic of Macedonia. It found that Macedonia, as a State party to the European Convention on Human Rights (the Convention), was responsible for torturing El-Masri while he was in the former Yugoslav Republic of Macedonia (FYRM) The El-Masri judgment is the first time in which an international court has ruled on the U.S. practice of secret forced renditions. It follows the rationale of Soering v. United Kingdom, that a State can be held responsible for facilitating a violation by a State outside the Council of Europe, and places it in a modern war on terror context.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 2 , April 2013 , pp. 558 - 622
Copyright
Copyright © American Society of International Law 2013

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References

1 El-Masri v. the former Yugoslav Republic of Macedonia, App. No. 39630/09, Grand Chamber Judgment, Eur. Ct. H.R. (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115621 [hereinafter El-Masri].

2 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).

3 Richard, B. Lillich, International Human Rights: Problems of Law, Policy and Practice 727, 690 (2d ed. 1991)Google Scholar.

4 Mr. H.K., who was the Minister of the Interior at the time, became Prime Minister soon afterward. The alleged warrant was never produced as evidence. See El-Masri, supra note 1, ¶ 161.

5 Id. ¶ 202.

6 Id. ¶ 205.

7 On June 12, 2006, the Parliamentary Assembly of the Council of Europe issued the “Marty Report” on extraordinary renditions, named after Senator Dick Marty of Switzerland who was appointed to investigate the allegations.

8 See Comm. on the Elimination of Racial Discrimination, Concluding Observations of Consideration of Reports Submitted by States Parties Under Art. 9 of the Convention at its 70th Sess., Feb. 19-Mar. 9, 2007, U.N. Doc. CERD/C/MKD/CO/7 ¶ 12 (June 13, 2007); Human Rights Comm., Concluding Observations of Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant at its 92nd Sess., Mar. 17-Apr. 4, 2008, U.N. Doc. CCPR/C/MKD/CO/2 ¶ 14 (Apr. 3, 2008); Comm. Against Torture, Concluding Observations of Reports Submitted by States Parties Under Art. 19 of the Convention at its 40th Sess., Apr. 28-May 16, 2008, U.N. Doc. CAT/C/MKD/CO/2 ¶ 9 (May 21, 2008).

9 El-Masri, supra note 1, ¶ 54.

10 Its failure to act with regard to alleged U.S. practices fueled the Bolivarian Alliance for the Peoples of Our America (ALBA) countries’ discontent with the Commission and call for reform of the multi-tiered human rights obligations of the Organization of American States (OAS) member states. See Global Insider: Inter-American Commission Reforms Seek to Change a Mixed System, World Politics Rev. (Mar. 11, 2013), http://www.worldpoliticsreview.com/trend-lines/12781/global-insider-inter-american-commission-reforms-seek-tochange-a-mixed-system.

11 El-Masri, supra note 1, ¶ 273 (12). Cf. Mr. Arar, a Canadian subject to secret rendition to Syria, who negotiated US $10 million settlement with Canada. Press Release, Prime Minister of Canada, Prime Minister Releases Letter of Apology to Maher Arar and his Family and Announces Completion of Mediation Process, http://pm.gc.ca/eng/media.asp?id=1509 (Jan. 26, 2007).

12 El-Masri, supra note 1, ¶ 72.

13 The public panel of the George Washington University Law School conference, entitled “Judicial Process and the Protection of Rights: The U.S. Supreme Court and the European Court of Human Rights,” was held March 1, 2012.

1 See the observations of the third-party interveners, paragraphs 175-179 of the judgment.

2 Official Journal L 082, 23 May 2001.