2011-04-06 Gazeta Wyborcza on CIA detention centers in Poland

On the 30th of March, Polish daily newspaper Gazeta Wyborcza published a fateful article that ultimately led to a criminal investigation. It detailed a document commissioned by Warsaw prosecutor Jerzy Mierzewski, who was then in charge of the investigation into alleged US detention facilities on Polish soil. He had asked external experts for advice on a variety of legal matters. After the external evaluation arrived, Mierzewski was removed from the investigation. Gazeta Wyborcza obtained the 50 page document by unknown means and published extracts from it. As a consequence of this publication, the newspaper itself became the focus of a criminal investigation.

This move came shortly after lawyers acting on behalf of a Guantanamo detainee filed a complaint against Poland at the European Court of Human Rights, and shortly before President Obama's visit to Poland.

According to the Gazeta Wyborcza article, Mierzewski had planned to file charges of breach of the constitution, false imprisonment and assistance in crimes against humanity, and had asked for advice, amongst other things, on the following matters:

- Does international law cover the operations of detention centers for people who are suspected of being terrorists?
- Does the legal framework of a country in which such a detention center exists have the power to shut it down?
- Does a confession that a person - who has been suspected of terrorist activity and has been detained - is a member of al Qaida have any influence on their legal status?
- What does it mean for the legal status of this person that he is detained outside a battlefield or an occupied area?

He received the following answers:

- There is no legal framework allowing foreign agencies to open any facilities in Poland which are beyond our control.
- The operation of such a center and the fact that people were detained there constitutes a breach of the constitution and of international law.
- Those who have been detained there qualify as victims of a war crime and a crime against humanity.
- There are no laws which apply directly to members of al Qaida.
- Regulations applied by the USA, for instance allowing waterboarding, do not agree with international law.

It would be speculative to try to reconstruct the entire strategy of the prosecution from these excerpts. It must be said, however, that they do contain some interesting information, for instance a clear answer that certain US practices breach international law.

As Peter Kemp, a legal practitioner and WL Central writer points out, torture is a crime of universal jurisdiction, and those who committed this crime can thus be tried in any other country in accordance with the Convention Against Torture Article 5(2):

"Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article."

Given these circumstances, he adds, any evidence on torture facilities on Polish soil which have been operated with the knowledge of the Polish authorities could have very dangerous consequences indeed not only for those involved but even to those who appear to have removed Mierzewski from the case if it could be proven that such conduct was to kill off the investigation, which would certainly make the perpetrators of such an act accessories to the original breach of the Convention. The danger is multiplied when Poland's membership in the EU is taken into consideration, as Poland is also obliged to comply with the European Convention on Human Rights.

Article 5(1) of the ECHR reads:

"Everyone has the right to liberty and security of person.

5(1). No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:"

Special camps where alleged terrorists were allegedly held, tortured and exposed to humiliating and degrading treatment would be a flagrant breach of Article 5. Kemp adds that if Polish authorities are moving towards quashing investigations in breach of Poland's obligations, the EU, one presumes, will be looking on and exerting some pressure at least behind the scenes.

For other WL Central coverage on the topic please see here.