by, and a victim can only resort to circumstantial evidence for purposes of
establishing a sufficient connection between the alleged violations and the
Respondent State by way of establishing compatibility ratione loci and ratione
personae. The Commission is well prepared to draw inferences of fact from such
evidence. However, the Commission holds the view that where circumstantial
evidence is sought to be relied on, as is the case in the present Communication, such
evidence must not be open to multiple inconsistent inferences creating considerable
doubt about a given inference preferred by a Party..
173. Further, the Commission has considered the case of El-Masri v. The Former
Yugoslav Republic of Macedonia (2012) ECHR (Application no. 39630/09) on which the
present Communication appears to have been modelled and on which the
Complainant considerably relies. Mr. El-Masri was subjected to the same alleged US
Government extraordinary rendition program as alleged in the present
Communication. He was rendered from the territory of the Former Yugoslav
Republic of Macedonia, the Respondent in that case. There was overwhelming
evidence placing the applicant both in the territory and under the jurisdiction of the
Former Yugoslav Republic of Macedonia. Among others, the European Court relied
on the testimony of a former Minister of Interior of the Respondent State who
confirmed that
Macedonian law-enforcement authorities, acting upon a valid international arrest
warrant issued by the US authorities, had detained the applicant, kept him
incommunicado and under the constant supervision of UBK (State Intelligence Service)
agents in a location in Skopje. He had later been handed over to the custody of a CIA
“rendition team” at Skopje Airport and had been flown out of the respondent State on a
CIA-operated aircraft.22
174. In this regard the Court found that “his statement [was] a confirmation of the
facts established in the course of the other investigations and of the applicant’s
consistent and coherent description of events.”23 Such other established facts
included aviation and flight logs which coincided with the dates of the applicant’s
movements as narrated by him.24
175. By contrast with the present Communication, whereas the barrage of
evidence produced by the Complainant make a strong case of the existence of the
U.S. Government’s extraordinary rendition program and that the Republic of
Djibouti participated in the program, there are multiple factual lacunae and
El-Masri v The Former Yugoslav Republic of Macedonia (2012) ECHR (Application no. 39630/09) para
161
23 Ibid.
24 Id, para 157
22
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