International Law

European Court of Human Rights Approves Abu Hamza Extradition to U.S.

By Alan Z. Rozenshtein
Tuesday, April 10, 2012, 1:13 PM

As Raffaela has already noted, the European Court of Human Rights unanimously ruled this morning that Abu Hamza al-Masri and four other wanted terrorism suspects may be extradited from the United Kingdom to the United States. (Additional reporting on the decision is available in the New York Times and the Telegraph.) Abu Hamza is accused of a 1998 kidnapping plot in Yemen, in which three Britons and an Australian were killed by kidnappers during a rescue mission. (The Telegraph carries a profile of Abu Hamza and another of the suspects.) The suspects were indicted in U.S. federal court in 2004 and extradition proceedings have been underway since then.

The main issue in the case is whether the possible maximum sentence for the five suspects under U.S. law -- life without parole in the federal "Supermax" Florence ADX maximum-security prison in Colorado -- would violate various international law standards, such as Article 3 of European Convention on Human Rights' prohibition on torture and "inhuman or degrading treatment or punishment." (The United Kingdom, the extraditing country, is a signatory to the Convention.) As Peter Marguiles noted on this site in December, the court had previously held that there were "serious questions" as to whether an extradition that resulted in detention at Florence ADX would violate the Convention. Having the considered the issue on the merits, the court concluded that it would not.

The court engaged in an extensive factual and legal analysis of detention conditions at Florence ADX, including a survey of relevant Fifth, Eighth, and Fourteenth Amendment standards, and concluded that the extradition could proceed for the five suspects. (It postponed ruling on the extradition of a sixth suspect, Haroon Rashid Aswat, who has schizophrenia, to await further information on the effects of detention at Florence ADX on that mental illness.) It concluded that there were adequate procedures for deciding who would be sent to the prison and that, although the conditions there were no doubt harsh, they did not rise to the level that would violate the Convention. It noted that Florence ADX provides "adequate opportunities for interaction between inmates" and that the conditions of the prison tracked, in most relevant respects, standards in British maximum-security prisons. It also noted that Abu Hamza would not, under U.S. prison regulations, be sent to Florence ADX because of his severe physical disabilities (a missing eye and right hand). Finally, it held that a life sentence for the suspects would not be "grossly disproportionate" to the severity of the alleged crimes.

This is a potentially very important ruling, for two reasons. First, it will likely make it easier to extradite terror suspects from Europe to the United States (although it's worth noting that the court continued to stay the extradition to allow for appeals). Second, it gives dramatic imprimatur to U.S. maximum-security prison conditions -- which even many American groups believe constitute torture and "cruel and unusual punishment" -- from none other a source than the European Court of Human Rights.