BRIEF IN SUPPORT OF ABOU ELKASSIM BRITEL’S REQUEST FOR REPARATIONS AND AN OFFICIAL APOLOGY FOR EXTRAORDINARY RENDITION AND TORTURE SUBMITTED TO: JUAN MÉNDEZ, SPECIAL RAPPORTEUR, CONVENTION AGAINST TORTURE BEN EMMERSON, SPECIAL RAPPORTEUR ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM, ARIEL DULITZKY, CHAIR-RAPPORTEUR, WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES, MADS ANDENAS, CHAIR-RAPPORTEUR, WORKING GROUP ON ARBITRARY DETENTION, AND PABLO DE GREIFF, SPECIAL RAPPORTEUR ON THE PROMOTION OF TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON-RECURRENCE. SUBMITTED BY: UNC SCHOOL OF LAW HUMAN RIGHTS POLICY SEMINAR STUDENTS HANNAH CHOE NATALIE DEYNEKA KENNETH JENNINGS CAITLIN MCCARTNEY STEPHANIE MELLINI JESSICA RA CORY WOLFE FACULTY DEBORAH M. WEISSMAN REEF C. IVEY II DISTINGUISHED PROFESSOR OF LAW JUNE 2014 http://www.law.unc.edu/documents/academics/humanrights/britelbrief.pdf INTRODUCTION “The wounds that were inflicted upon us cannot be undone. In my opinion, it is never too late to work to restore trust and faith.” --Herman Shaw, survivor of Tuskegee Syphilis Study and recipient of a formal apology from the United States government, August 24, 1997 “[A]n apology for centuries of brutal dehumanization and injustices cannot erase the past, but confession of the wrongs committed can speed racial healing and reconciliation and help Americans confront the ghosts of their past.” --H.Res. 194 (110th): Apologizing for the enslavement and racial segregation of African-Americans, 110th Congress, 2007–2009. July 29, 2008 “You wonder why we didn't do it 100 years ago. It is important to have a collective response to collective injustice.” --Sen. Tom Harkin (D-Iowa), lead sponsor of Senate resolution apologizing for slavery, June 18, 2009. “I tip my hat to North Carolina, finally they came to their senses and decided to do what’s right.” --Elaine Riddick, victim of forced sterilization, upon apology and reparations offered by the North Carolina government, July 26, 2013. “This means the world to me.” --Maher Arar, victim of extraordinary rendition and torture upon receiving official apology from Canadian government, January 26, 2007. “The wrong has been done, sadly. What I can ask now is for some form of reparation so that I can have a fresh start and try to forget, even if it won’t be easy . . . . I want an apology. It is only fair to say that someone who has done something wrong must apologize.” --Abou Elkassim Britel, Victim of extraordinary rendition and torture, waiting to receive an official apology from the United States, Pakistan, Morocco, and Italy, September 15, 2013. Following the September 11, 2001 attacks, the United States implemented a widespread and systematic program of extraordinary rendition, secret detention, and torture. The release of executive memoranda concerning this program, independent investigations by foreign governments and other international organizations, as well as the Senate Intelligence Committee’s report on the use of torture – which as of the writing of this policy brief remains 1 confidential – all evidence the significant human rights violations that have taken place due to harmful and unlawful national security policies and practices of the United States. Despite the considerable documentation of U.S. involvement in human rights violations through its extraordinary rendition program, the United States has declined to accept any responsibility for its wrongdoings, has refused to acknowledge the harm and suffering caused by hundreds of individuals and their families, and has failed to issue any formal apology to the survivors of the program. One such individual, Abou Elkassim Britel, an Italian citizen of Moroccan descent, was tortured and subjected to cruel, inhuman, and degrading treatment for nine years. In the period from March 2002 until April 2011, he was kidnapped, beaten, at times held in complete isolation, threatened, humiliated, degraded, and imprisoned in notorious torture prisons. Although he has been released from prison and has returned to his wife, Khadija Anna Lucia Pighizzini, in Bergamo, Italy, he continues to suffer greatly from the physical and psychological damage resulting from his ordeal. Four governments are implicated in his torture: Pakistan, where he was first seized, accused of being a terrorist, and tortured; the United States, whose officials and agents tortured him and extraordinarily rendered him to Témara prison in Morocco; Morocco, where he was detained, tortured, and incarcerated; and Italy, whose officials were complicit with Pakistan and the United States and otherwise failed to assist and protect him. These governments violated international human rights treaties and norms, particularly the Convention Against Torture. The years of torture have left no part of Britel’s life untouched. In addition to the many medical problems that Britel experiences, the false and wrongful accusations lodged against him associating him with terrorism have left him and his family stigmatized and isolated from their community. As a consequence, Britel and his wife live their day-to-day 2 lives with little or no social support or social integration. Britel struggles on a daily basis to piece back together that which he used to call “life.” This policy brief focuses on the wrongdoing and obligations of the United States, while recognizing that all four nations complicit in Britel’s extraordinary rendition and torture (the United States, Pakistan, Morocco, and Italy) have an obligation, both legal and moral, to acknowledge the torture and cruel, inhuman and degrading treatment of Britel. The need for such an acknowledgement is critical. The human rights violations Britel suffered in gross violation of the Convention Against Torture, as well as other international rights norms, have been compounded by the refusal of the governments complicit in his torture to recognize the harm he has suffered or redress the damage they have caused. For these violations, Britel is seeking an official apology as a means of reparation and redress. This policy brief illustrates both the need for, and right to, an official apology for Abou Elkassim Britel. Section One sets forth the factual scenario and events concerning Britel’s extraordinary rendition and imprisonment. It describes the enumerable ways in which his human rights were violated during his arrest in Pakistan, his extraordinary rendition to Morocco, his prolonged imprisonment there without cause or due process, and the repeated acts of torture that took place throughout his ordeal. Section One also describes the countless difficulties and suffering that Britel has experienced following the events of his extraordinary rendition. Section Two provides the legal history and background that precedes Britel’s request for an apology. Notwithstanding protracted legal efforts extending to the U.S. Supreme Court, Britel's attempts to obtain a judgment of accountability for his torture were summarily dismissed. U.S. court opinions in matters pertaining to extraordinary rendition have created barriers to redress for survivors and deny the most foundational rights to accountability and redress for torture otherwise guaranteed under international law. 3 Section Three defines torture including descriptions of common methods of torture, summarizes the physical and psychological effects of torture and the obstacles to treatment and repair, and situates Britel’s circumstances within realm of these explanations. It demonstrates the potential restorative effects that an official apology can provide by offering a measure of truth, thus helping to restore the dignity of the victim. Section Four demonstrates the political feasibility of an official apology offered by the United States and its political subdivisions. It reviews the nature of a political apology sought by Britel and sets forth the necessary components to ensure that it is offered in a manner that is meaningful and possessed of moral and political significance. It demonstrates the political benefits of an apology, explains how apologies, when offered meaningfully, can assist the victim of human rights violations, and thus sets in relief the importance of doing so in Britel’s case. Section Five provides additional legal context for Britel’s request for an official apology by demonstrating the use of acknowledgments of wrongdoing as a means to resolve legal disputes in domestic civil matters. It also historicizes the use of public apologies through previous examples of government statements of wrongdoings and explores lessons to be learned from such examples. Section Six sets out the current legal framework that obliges governments to officially apologize in cases such as that of Abou Elkassim Britel. His kidnapping, torture, rendition, and imprisonment violated customary international human rights law, central provisions of the International Covenant on Civil and Political Rights, and the Convention Against Torture. The Draft Articles on the Responsibility of States for Internationally Wrongful Acts thus requires the four governments to undertake reparations including an apology. Under international law, the four governments implicated in these violations have an obligation to acknowledge their actions, to render an apology to Britel as remedy for the extensive physical 4 and psychological injuries they have caused, and to relieve the stigma that continues to thwart his efforts to regain his life. Finally, Section Seven, with a particular focus on the United States, establishes that in order to maintain the values embedded in international human rights, and to assure that the principle of reciprocity upon which much of international law rests endures, U.S. officials must apologize to Britel as a means of taking responsibility for the human rights violations it has committed. It is ultimately the goal of this policy brief to highlight the obligation of all citizens to hold state governments accountable for violations of human rights against individuals like Abou Elkassim Britel. While there will never be an adequate remedy for what Britel has suffered, it is essential that the four governments acknowledge their role in the violation of Britel’s human rights and offer him the apology he seeks and deserves. The authors of this policy brief acknowledge that there are hundreds of other individuals like Britel who suffered egregious violations as a result of the U.S. extraordinary rendition program. While the request for an acknowledgement and apology focuses on Britel’s particular plight, the efforts to repair his harm must be understood in the context of a larger campaign for justice to achieve redress and social reconstruction for all those who have suffered torture and extraordinary rendition. Civil society concerned with human dignity and rights must advocate in a steadfast manner to seek broad and varied forms of relief, of which an acknowledgement and apology are but one measure. Without these efforts, accountability for torture may remain a political impossibility. Existing official reports on mistreatment of detainees, essential as they are, serve as an accompaniment to, and not a substitute for, the task of recognizing the violations committed against particular individuals and the necessity to try to make them whole again. 5 SECTION ONE INTRODUCTION TO ABOU ELKASSIM BRITEL: VICTIM OF EXTRAORDINARY RENDITION AND TORTURE I. Personal Background Abou Elkassim Britel (Britel) was born in Casablanca, Morocco in 1967.1 When he was twenty-two years old, he moved to Italy where he began to build a life for himself, finding work in a poultry shop.2 Seven years later, in 1995, Britel married Anna Lucia Pighizzini, an Italian citizen.3 Soon after, he qualified as an electrician.4 In 1999, Britel became an Italian citizen.5 In 2000, Britel and his wife created a website called “Islamiqra.”6 They planned to translate important Islamic texts from Arabic into Italian.7 They hoped to obtain funding for this work from the embassies of Islamic countries in Italy.8 A professional translator advised them that they would be more likely to obtain necessary financial support for their business if they traveled to Islamic countries and communicated directly with potential sponsors; thus, they pursued funding following this advice.9 II. Capture and Detention in Pakistan In June of 2001, Britel traveled from Italy to Iran, hoping to find funding and support for his translation business.10 He then continued on to Pakistan for the same reasons.11 On March 10, 2002, Britel was traveling by taxi when he was stopped at a police roadblock in 1 Declaration of Abou Elkassim Britel in support of the legal complaint filed on 30 May 2007 in Binyam Mohamed et al v. Jeppesen Dataplan, Inc., No. C07-02798 JW (N.D. Cal. Civ. R.1-1 filed 30 May 2007) (hereinafter Decl. of Abou Elkassim Britel) at 1. (Attached) 2 Decl. of Abou Elkassim Britel, ¶ 2. 3 Decl. of Abou Elkassim Britel, ¶ 1. 4 Decl. of Abou Elkassim Britel, ¶ 2. 5 Decl. of Abou Elkassim Britel, ¶ 1. 6 Decl. of Abou Elkassim Britel, ¶ 2. 7 Decl. of Abou Elkassim Britel, ¶ 2. 8 Decl. of Abou Elkassim Britel, ¶ 3. 9 Letter, Roberto Hamza Piccardo, http://www.statewatch.org/cia/documents/de%20longhi/de%20longhi-nota- 01.pdf (in Italian). 10 Decl. of Abou Elkassim Britel, ¶ 3. 11 Decl.. of Abou Elkassim Britel, ¶ 3. 6 Lahore.12 The police accused Britel of traveling on a fake Italian passport and took him to the police station.13 Britel was arrested and detained on immigration charges.14 Britel’s wife, Anna, had spoken to him on the phone earlier that day.15 However, she would not speak to him again until February 2003.16 The arrest would mark the beginning of a decade- long struggle of injustice involving physical and mental torture; extraordinary rendition; cruel, inhuman, and degrading treatment; a denial of due process; and lengthy imprisonment. While detained in Pakistan, Britel faced a litany of horrors at the hands of the police and the Pakistani secret service. He was tortured physically; he was beaten with a cricket bat, suspended from the walls of his cell, and deprived of sleep for three days while tied to a gate.17 In addition to this brutal physical treatment, he suffered mental and emotional torture. His captors repeatedly threatened to rape the female members of his family. These threats caused him as much trauma as the beatings and threats to his own bodily integrity.18 He was humiliated and denied access to a toilet, and instead was given a bucket to use once every twenty-four hours.19 His captors accused him of being a terrorist. 20 These interrogations by the police and Pakistani secret service agents were so violent that, after one occasion, Britel required medical attention for a week.21 In addition to the horrific treatment, one police officer stole Britel’s watch.22 When he complained, the other officers laughed.23 This incident further exacerbated Britel’s sense of powerlessness, loss of control, and injustice. 12 Interview by Cageprisoners with Anna Lucia Pighizzini (Jan. 9, 2008) (hereinafter Cageprisoners), at http://www.cageprisoners.com/our-work/interviews/item/158-interview-with-khadija-pighizzni.. 13 Id. 14 Id. 15 Id. 16 Id. 17 Decl. of Abou Elkassim Britel, ¶ 5; Cageprisoners, supra note 12. 18 Decl. of Abou Elkassim Britel, ¶ 5. 19 Cageprisoners, supra note 12. 20 Decl. of Abou Elkassim Britel, ¶ 4. 21 Decl. of Abou Elkassim Britel, ¶ 4. 22 Cageprisoners, supra note 12. 23 Id. 7 In the hopes of obtaining consular and other assistance, and to let “the outside world” know of his capture, Britel frequently asserted his Italian citizenship. He specifically requested legal representation and help from the Italian Embassy. He wanted to prove the authenticity of his passport.24 His captors, however, continually ignored or denied his requests. In April 2002, after enduring brutality for weeks, Britel’s torturers wrested from him a false confession about matters of which he had no knowledge, one that he made hoping it would put an end to his detention, torture, and pain.25 After his “confession,” he was brought before U.S. officials and interrogators, who fingerprinted and photographed him.26 His U.S. interrogators told him that if he did not cooperate, the Pakistani interrogators would kill him.27 On May 5, 2002, Britel was transferred from Lahore to the Pakistani intelligence headquarters in Islamabad.28 He was then blindfolded, tied up, and transferred to a place where he was interrogated four times by U.S. intelligence agents.29 The U.S. agents questioned him about Osama Bin Laden and offered him sums of money for information he did not have.30 The head of the Pakistani secret service was also in attendance. Those present threatened to torture him.31 Despite his repeated requests, he was again denied the right to speak to someone from the Italian Embassy.32 An individual, who identified himself as David Morgan and a U.S. official, presented himself to Britel and explained that he was charged with Britel’s interrogation. Britel again asked to speak to someone at the Italian Embassy, but he was refused access to consular 24 Id. 25 Decl. of Abou Elkassim Britel, ¶ 4. 26 Decl. of Abou Elkassim Britel, ¶ 7. 27 Decl. of Abou Elkassim Britel, ¶ 7. 28 Decl. of Abou Elkassim Britel, ¶ 8. 29 Cageprisoners, supra note 12. 30 Decl. of Abou Elkassim Britel, ¶ 8. 31 Cageprisoners, supra note 12. 32 Decl. of Abou Elkassim Britel, ¶ 8. 8 services. U.S. officials told Britel that the Italian Ambassador did not want to meet with him because he was a “terrorist.”33 Morgan then told him that someone from the Moroccan Embassy would visit with him, instead; however, this meeting also never occurred. Morgan also assured Britel that he would be released and returned to Italy, a promise that did not materialize until nine years later. During Britel’s arrest and detention in Pakistan, neither his wife nor his family knew of his whereabouts or what had happened to him. On June 7, 2002, Britel’s brother received a phone call from someone who claimed to have known Britel in prison in Pakistan, and warning that Britel’s life was in danger.34 However, by the time Britel’s family received this terrifying message, he had already been abducted by U.S. agents, extraordinarily rendered, and deposited at a notorious Moroccan prison to be tortured for information. III. Extraordinarily Rendered and Tortured: Aero Flight to Morocco Flight logs and other data show that on May 24, 2002, Britel was transported from Pakistan to Morocco on a plane operated by Aero Contractors, Inc. (Aero), which flew out of Johnston County, a relatively small county in North Carolina. Aero is based at the county airport in the small town of Smithfield. Aero has ties to the CIA; Aero’s planes have been directly linked to the abductions and torture perpetrated through the CIA’s extraordinary rendition program.35 Because of the unconscionable and illegal purposes of the flights, local and global individual and groups concerned with torture have referred to the planes leaving the airport as “torture taxis.” Flight logs and other data show that Britel was transported from Pakistan to Morocco on one of these “torture taxis,” more specifically, a plane identified as N379P.36 33 Cageprisoners, supra note 12. 34 Id. 35 Joby Warrick, Ten Years Later, CIA ‘Rendition’ Program Still Divides N.C. Town, WASHINGTON POST: NATIONAL SECURITY, (Feb. 9, 2009) available at http://www.washingtonpost.com/world/national-security/ten- years-later-cia-rendition-program-still-divides-nc-town/2012/01/23/gIQAwrAU2Q_story.html. 36 Decl. of Abou Elkassim Britel, ¶ 17. 9