Maher Arar, a dual Canadian/Syrian citizen and father of two children was arrested at New York City’s JFK airport on September 26, 2002. He was travelling on a Canadian passport en route home to Canada from visiting his wife’s family in Tunisia.
After 12 days held by US authorities, he was clandestinely sent, via Jordan, to Syria, where he was held for a year, including 10 months in a small, dark underground cell during which time he was subjected to torture, including by being whipped on his back and hands with a two inch thick electric cable.
Maher Arar told Amnesty International that in the small cell, which he referred to as the ‘grave,’ a small grate in the ceiling opened up into a hallway above and through it cats and rats urinated on him. There was no furniture in the cell, only two blankets on the floor. He had no exposure to natural light for the first six months of his detention.
Maher Arar was eventually released without charge and allowed to return home to Canada. An inquiry conducted by a Canadian judge found, among other things, that he had indeed been tortured, and that "it is very likely that, in making the decisions to detain and remove Mr Arar, American authorities relied on information about Mr Arar provided by [Canadian authorities]." The inquiry emphasized that Canadian authorities, having pursued all the information available to them, had failed to find “any information that could implicate Mr. Arar in terrorist activities.” The Canadian authorities formally apologized to Maher Arar and provided him with compensation for Canada’s role. A number of other recommendations emerged from the inquiry calling for legal, policy and institutional reforms to help prevent similar cases in the future. Many of those recommendations remain unimplemented, over four years after the inquiry issued its report.
Canadian officials have also requested that the US government remove Maher Arar’s name from the US watch list. That request has been refused. As such, it remains impossible for him to travel to the USA or over US airspace, and he faces constant uncertainty about other countries that may have adopted the USA watch list. He feels strongly, too, that having his name removed from the list would be an important part of restoring his reputation.
In recent years, Maher Arar has become a respected, high-profile human rights activist in Canada. He appears and writes often in the national media and speaks regularly to audiences across the country. He publishes an on-line magazine, Prism, which highlights the importance of ensuring that national security laws and practices be grounded in human rights. He has dedicated himself to ensuring that other individuals do not experience what happened to him at the hands of Canadian, US, Jordanian and Syrian authorities.
Contrary to what has happened in Canada, US authorities have failed to apologize to Maher Arar or to offer him any form of remedy. The Center for Constitutional Rights (CCR) represented Maher Arar in a lawsuit against US authorities that claimed that US officials conspired to send him to Syria so that he could be interrogated under torture, and that they provided Syria with information and questions for the interrogation. This lawsuit was dismissed, without ever having been considered on its merits, by the US Court of Appeals for the Second Circuit in November 2009. On June 14, 2010, the US Supreme Court announced that it was refusing to consider his appeal against this ruling.
The US Department of Justice had urged the Supreme Court not to hear the Maher Arar case because the lawsuit implicated "significant national security concerns."
A majority of the Court of Appeals found that "it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress – and not for us judges – to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation."
Responding to the Supreme Court’s decision not to take his case, Maher Arar told Amnesty International of his view that "This Supreme Court decision, along with lower courts’ rulings, essentially gives the green light to the US administration to engage in torture without any fear of ever being prosecuted."
A small number of members of Congress took the initiative individually to apologize to Maher Arar via a video link to him in Canada at a committee hearing in the US House of Representatives in 2007, but the US President and full Congress have failed to apologize or to offer Maher Arar any form of remedy.
Especially given that access to a judicial remedy for Maher Arar has now been blocked by President Obama's administration, the non-judicial branches of the federal government have no excuse not to take measures to meet the USA’s obligation under international law to ensure that he has access to remedy, including compensation.
Countless people have been subjected to human rights violations by the USA as a result of the counter-terrorism policies and practices adopted since September 11, 2001. Far from ensuring remedy, the current US administration, like its predecessor, is actively blocking remedy for these abuses. Yet, the right of victims of human rights violations to effective access to remedy is a fundamental principle of international human rights law.
THE RIGHT TO REMEDY
The right to an effective remedy is recognized in all major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) which the USA ratified in 1992.
Under Article 2.3 of the ICCPR, any person whose rights under the Covenant have been violated "shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." The rights under the ICCPR include to be free from arbitrary detention, torture and other cruel, inhuman or degrading treatment and unfair trial, all of which the US authorities have violated in the name of countering terrorism.
The UN Human Rights Committee has affirmed that the right to an effective remedy can never be derogated from, even during times of national emergency. Remedy means, among other things, that victims are entitled to equal and effective access to justice, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
The UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires that each State Party "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible." The UN Committee against Torture has said that these rights apply equally to other forms of cruel, inhuman or degrading treatment or punishment.
ACCOUNTABILITY FOR TORTURE
The US government is obligated by international law, including the UN Convention Against Torture, to ensure full accountability for the many human rights violations committed in the name of countering terrorism, including the crimes under international law of torture and enforced disappearance, for which US personnel have been responsible. Full accountability includes investigation, prosecution and remedy for all victims.