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David Weissbrodt[*]
Amy Bergquist[**]
On September 13, 1995, local police in Croatia seized Egyptian national Talaat Fouad Qassem, and then handed him over to CIA agents.[1] Qassem had fled Egypt after the Egyptian government accused him of involvement in the assassination of Anwar Sadat; the Egyptian government subsequently sentenced him to death in absentia.[2] The CIA agents took him on board a ship in the Adriatic Sea and interrogated him.[3] Then, they delivered Qassem to Egypt, where he disappeared.[4] A human rights reporter in Egypt believes he has been executed.[5]
In the summer of 2003, Kurdish soldiers in Iraq captured Iraqi national Hiwa Abdul Rahman Rashul somewhere in Iraq.[6] They handed him over to CIA agents, who flew him to Afghanistan for interrogation.[7] When a legal advisor for the U.S. administration balked at the transfer, Rashul was flown back to Iraq, but, at the request of CIA director George J. Tenet, Secretary of Defense Donald Rumsfeld ordered that Rashul be hidden from Red Cross officials and not be given a prisoner number.[8] According to The Washington Post, “[h]is current status is unknown.”[9]
In December 2003, Kuwaiti-born German national Khaled el Masri boarded a bus in his home of Ulm, Germany, to travel to Skopje, Macedonia.[10] When
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he arrived at the Macedonian border on December 31, Macedonian police took him off the bus, confiscated his passport, and detained him for three weeks. On January 23, 2004, a jet with tail number N313P, registered to Premier Executive Transport Services, a CIA front-company, arrived in Macedonia from the island of Majorca. El Masri was driven to the Skopje airport, where he was handed over to CIA officials. Men wearing black masks and black gloves beat him, cut off his clothes, and then injected him with drugs. He was then placed on the airplane and flown, first, to Baghdad, and then to Kabul. When he arrived in Afghanistan, U.S. officials interrogated him and held him in solitary confinement for nearly five months. In May 2004, he was flown back to Central Europe and released near a checkpoint on the Albanian border, on the order of U.S. Secretary of State Condoleezza Rice. His detention was apparently a case of mistaken identity. When el Masri returned home to Germany, he learned that his wife and children had gone to stay with her family in Lebanon; his wife thought he had abandoned the family.
The stories of Qassem, Rashul, and el Masri are not unique. They describe a human rights abuse called “extraordinary rendition”; a strategy that a series of U.S. administrations developed and refined, and in which numerous countries now participate.
Under the Clinton administration, most extraordinary renditions appeared to be subject to strict procedures. First, the receiving country had to have an outstanding arrest warrant for the person.[11] Second, each extraordinary rendition was subject to extensive administrative scrutiny before it was approved by senior government officials.[12] Third, the local government was notified.[13]
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Further, the CIA was required to obtain an assurance from the receiving government that the individual would not be ill-treated.[14] Although the total number of extraordinary renditions to date remains unclear,[15] there is a wide consensus that the program has accelerated since September 11, 2001.[16] In part, the acceleration can be attributed to expedited procedures approved by President Bush, affording additional flexibility to the CIA.[17] For example, charges are sometimes brought only after the CIA has seized the suspect and requested cooperation.[18] The strategy of extraordinary rendition evolved and expanded as the United States attempted to strengthen its efforts in the “war on terror.”[19] In its present form, extraordinary rendition usually involves a person who is not formally charged with any crime by the country conducting the abduction. Instead, the person is seized abroad and transported to a third country.
The twentieth century movement to establish international human rights standards emerged as a reaction to the horrors of the Second World War.[20] Since that time, as new human rights violations have been identified, the human rights community has responded: first by naming and describing the violations, and then by establishing standards to prohibit the abuses.[21] “Crimes
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against humanity,”[22] genocide,[23] and torture[24] are all examples of human rights violations that have been addressed through this process.[25] Over time, however, new types of human rights violations, such as extraordinary rendition, have emerged.[26] While human rights instruments may not mention these new offenses by name,[27] various provisions within existing instruments nonetheless usually address and prohibit the offenses.[28] When the practice of disappearances, for example, became widespread in some countries,[29] the human rights community was compelled to examine human rights instruments to determine which of their provisions were implicated.[30] Ultimately, interna-
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tional bodies drafted new documents to directly address the practice of involuntary disappearances,[31] but they drew on existing instruments to demonstrate that the practice violated long-standing human rights law.[32]
As noted above, another novel human rights violation has emerged—a practice commonly referred to as extraordinary rendition.[33] Extraordinary rendition is a hybrid human rights violation, combining elements of arbitrary arrest, enforced disappearance, forcible transfer, torture, denial of access to consular officials, and denial of impartial tribunals. It involves the state-sponsored abduction of a person in one country, with or without the cooperation of the government of that country,[34] and the subsequent transfer of that person to another country for detention and interrogation.[35] As is the case with state-sponsored disappearances,[36] extraordinary rendition appears to be a practice in which perpetrators attempt to avoid legal and moral constraints by denying their involvement in the abuses.[37] For example, when Amnesty International launched campaigns on behalf of prisoners of conscience during the
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1970s,[38] governments responded by denying that those individuals had ever been taken into custody.[39] Governments used disappearances to shield their own officials from being implicated in extrajudicial executions and other forms of ill-treatment of prisoners.[40] Extraordinary rendition constitutes an attempt to avoid international condemnation of the use of torture and other forms of ill-treatment as interrogation techniques;[41] officials contend that extraordinary rendition is simply a benign alternative to extradition.[42]
Reports suggest that Russia,[43] Sweden,[44] and the United States have orchestrated extraordinary renditions.[45] Other states reportedly have facilitated extraordinary renditions either by providing intelligence or by conducting the initial seizure. These states include Bosnia,[46] Canada,[47] Croatia,[48] Georgia,[49] Indonesia,[50] Iraq,[51] Macedonia,[52] Malawi,[53] Pakistan,[54] and the United
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Kingdom.[55] Still other states, including Afghanistan,[56] Egypt,[57] Jordan,[58] Morocco,[59] Saudi Arabia,[60] Syria,[61] and Uzbekistan,[62] have assisted by taking custody of suspects after they are transferred out of the state where they are abducted. In many cases, the receiving states reportedly engage in torture and other forms of ill-treatment of detainees on a systematic basis.[63] The use of extraordinary rendition has accelerated since September 11, 2001,[64] and widespread reports of the United States’ use of the practice may now serve as justification for other countries seeking to adopt the tactic.[65]
Drawing on the experiences of the human rights community in addressing disappearances, it is now necessary to examine the practice of extraordinary rendition through the lens of existing human rights instruments. This Article demonstrates that extraordinary rendition violates numerous international human rights standards, including the Universal Declaration of Human Rights,[66] the International Covenant on Civil and Political Rights,[67] the International Covenant on Economic, Social and Cultural Rights,[68] the Convention and Protocol Relating to the Status of Refugees,[69] the Convention against Torture,[70] the Vienna Convention on Consular Relations,[71] and the Geneva Conventions.[72] The following Parts examine each instrument in turn,
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and the conclusion addresses issues of implementing these human rights protections to stop the practice of extraordinary rendition.
The Universal Declaration of Human Rights (“Universal Declaration”) is the authoritative interpretation of the human rights obligations contained in the United Nations Charter.[73] Many of its provisions have attained the status of international customary law.[74] In particular, the U.N. Economic and Social Council’s Human Rights Commission has affirmed that “the right to life, freedom from torture, freedom of thought, conscience and religion and the right to a fair trial” have achieved this status and “cannot be open to challenge by any State as they are indispensable for the functioning of an international community based on the rule of law and respect for human rights and fundamental freedoms.”[75] Moreover, many domestic courts have made reference to the Universal Declaration to describe international human rights obligations,[76] and the Universal Declaration has also inspired constitutional and legislative provisions in many nations.[77]
Article 3 of the Universal Declaration guarantees the “right to life, liberty and security of person.”[78] The stories of Qassem, Rashul, and el Masri demonstrate that the practice of extraordinary rendition implicates these rights; abduction itself involves a deprivation of liberty and security. As developed and articulated in subsequent human rights instruments, Article 5’s prohibition on torture and cruel, inhuman or degrading treatment or punishment is also relevant to extraordinary rendition,[79] particularly when coupled with the Preamble’s proclamation that all nations “shall strive . . . to promote respect” for the provisions of the Declaration and “to secure their universal and effective recognition and observance . . . .”[80] For example, when the United
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States handed Qassem over to Egypt, a country where he had been sentenced to death in absentia and a country the United States criticizes for its systematic use of torture,[81] the United States was failing to uphold its obligation to protect against torture and other forms of ill-treatment.
Because extraordinary rendition frequently denies individuals access to recognized judicial procedures for extradition,[82] as well as to legal recognition in the receiving country,[83] the procedure violates Article 6’s guarantee that “[e]veryone has the right to recognition everywhere as a person before the law.”[84] The subsequent incommunicado detention and denial of access to counsel impede “the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”[85] established in Article 8. Given that the countries responsible for extraordinary rendition sometimes arrest individuals on fabricated charges or with no charges at all,[86] extraordinary rendition can constitute “arbitrary arrest, detention or exile,”[87] which is prohibited by Article 9. Extraordinary rendition also violates Articles 10 and 11 which assure the right to a fair and public hearing on criminal charges and the right to be presumed innocent until proven guilty according to law;[88] the lack of judicial process indicates that countries orchestrating the procedure are operating from a presumption of guilt[89] and that these countries afford individuals subject to extraordinary rendition little or no opportunity to challenge that presumption.[90] El Masri’s case exposes these flaws in the system of extraordinary
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rendition; he was abducted, ill-treated, and interrogated for several months because U.S. intelligence confused him with Khalid Masri, who was believed to have an important role in the Hamburg cell of al Qaeda.[91]
Extraordinary rendition also implicates Article 13, which provides that all persons have the right to leave any country and to return to their home country.[92] More importantly, extraordinary rendition undermines the protection of Article 14 that all persons have “the right to seek and to enjoy in other countries asylum from persecution,”[93] because the procedure effectively delivers people like Qassem to countries like Egypt where they are likely to suffer persecution.[94] In some instances, people are also delivered from countries where they had previously sought asylum.[95] Extraordinary rendition implicates other provisions of the Universal Declaration indirectly, including the right to found a family;[96] the prohibition against arbitrary deprivation of property;[97] freedom of thought, opinion, and expression;[98] and the right to “a social and international order in which the rights and freedoms [of the] Declaration can be fully realized.”[99]
While the Universal Declaration established a “common standard of achieve-ment,”[100] the International Covenant on Civil and Political Rights (“ICCPR”) codified many of its provisions.[101] First, it is necessary to examine the terri-
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torial scope of the ICCPR. While the language of Article 2(1) suggests that a State Party is only obligated to respect and ensure the rights of the ICCPR “to all individuals within its territory and subject to its jurisdiction,”[102] the Human Rights Committee has determined that a person need not be located within a State Party’s territory in order for that State Party to have obligations toward that person; the person must merely be “within the power or effective control” of the State Party.[103] Therefore, once a State Party takes a person into custody through extraordinary rendition, that detaining State Party is required to afford the detainee the rights and protections enumerated in the ICCPR.[104] This provision is particularly important because the U.S. officials who conduct extraordinary rendition never bring the detainees into U.S. territory.
Taking into consideration this territorial scope, several provisions of the ICCPR bind states engaging in the practice of extraordinary rendition. Article 7 prohibits torture and other forms of cruel, inhuman or degrading treatment or punishment.[105] The Human Rights Committee has interpreted this prohibition to require evidence of “a real risk of abusive treatment” in cases of transfer.[106] Article 10 requires States Parties to treat all detained persons
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“with humanity and with respect for the inherent dignity of the human person.”[107] Subjecting individuals to torture and other forms of cruel, inhuman or degrading treatment after transfer violates the provisions of Articles 7 and 10, and the process of abduction and transfer itself may violate a detainee’s inherent human dignity.[108] The Human Rights Committee has interpreted Articles 2, 6,[109] and 7 as follows:
[T]he article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.[110]
In A.R.J. v. Australia,[111] the Human Rights Committee entertained the possibility that “[t]o surrender a prisoner knowingly to another State where there are substantial grounds for believing that he would be in danger of being tortured, while not explicitly covered by the wording of Article 7 of the ICCPR, would run counter to its object and purpose.”[112] The Committee has determined that in some cases transfer may create a risk of treatment contrary to Article 7, and, therefore, countries conducting such transfers violate Article 7.[113] This risk is heightened when the State Party has already determined that the detainee has a well-founded fear of persecution upon return.[114] In Ahani v. Canada,[115] the Committee “emphasize[d] that . . . the
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right to be free from torture requires . . . that the State party not only refrain from torture but take steps of due diligence to avoid a threat to an individual of torture from third parties.”[116] The guidance of the Human Rights Committee indicates that the protections of Article 7 extend to cases of transfer.[117] Article 7 is particularly relevant in evaluating Qassem’s extraordinary rendition to Egypt; the United States had substantial grounds to believe that his transfer would place him in danger of being tortured.
The U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment (“Special Rapporteur on torture”) recently reaffirmed that “[t]he condoning of torture is per se a violation of the prohibition of torture.”[118] He also noted that “[t]here may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights . . . .”[119] Extraordinary rendition “to facilitate interrogation”[120] constitutes complicity with, and condoning of, torture, and an abrogation of a State Party’s duty to ensure rights under the ICCPR. The Special Rapporteur on torture also expressed concern with whether the use of diplomatic assurances “is not becoming a politically inspired substitute for the principle of non-refoulement.”[121]
The CIA reportedly orchestrated Rashul’s extraordinary rendition to Afghanistan in order to facilitate intelligence-gathering. Given that the United States already controlled substantial territory in Iraq at the time of his extraordinary rendition, the United States seems to have been condoning torture by transferring Rashul beyond territory within its control.
Article 13 of the ICCPR prevents the expulsion of a non-citizen lawfully present in the territory of a State Party unless the expulsion is “in pursuance of a decision reached in accordance with law.”[122] Prior to expulsion, the non-citizen has the right to have a competent authority review the case, “except where compelling reasons of national security otherwise require.”[123] Heightened procedural safeguards are appropriate when there is a risk of torture. The Human Rights Committee has determined that “where one of the high-
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est values protected by the Covenant, namely the right to be free from torture, is at stake, the closest scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture.”[124] Hence, extraordinary rendition violates Article 13 both because it is not grounded in a decision reached in accordance with the law, and because it does not provide adequate review.[125] While the United States insists that the procedure is vital to national security,[126] it is unclear why national security would be undermined by review. Since the risk of torture is present after extraordinary rendition, the lack of fair procedures to ascertain whether expulsion is proper runs afoul of Article 13. In the case of Ahmed Agiza, discussed infra, Sweden violated its obligation to provide heightened procedural safeguards within the context of the Convention against Torture.
Article 9 states that every person “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”[127] As with the protections in Articles 3, 9, 10, and 11 of the Universal Declaration, the lack of adequate judicial procedural safeguards throughout the process of extraordinary rendition indicates that the procedure constitutes a deprivation of liberty and security, as well as an arbitrary arrest and detention, in violation of the ICCPR. Article 9(4) entitles any person deprived of liberty by detention “to take proceedings before a court, in order that that court may decide without delay on the lawfulness” of the detention.[128] Additionally, Article 16 states that “[e]very-one shall have the right to recognition everywhere as a person before the law.”[129] As demonstrated in the cases of Qassem, Rashul, and el Masri, transferring countries rarely, if ever, provide persons subjected to extraordinary rendition with such judicial recognition or access either prior, or subsequent, to the transfer.[130] Indeed, one of the purposes of extraordinary rendition appears to be to hold persons outside of the recognized judicial procedures for extradition and criminal trial.[131]
Extraordinary rendition implicitly violates Article 14 because detainees are not “equal before the courts and tribunals,”[132] and, in the first instance, they are not allowed to come before courts and tribunals. Much like the provisions of Articles 10 and 11 of the Universal Declaration, Article 14 of the ICCPR calls for the presumption of innocence and for fair hearing.[133] As
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discussed above, a presumption of guilt drives extraordinary rendition, and detainees are not able to challenge that presumption in any “competent, independent and impartial tribunal,” as Article 14 requires.[134] Of the pro-cedural safeguards articulated in Article 14(3), the most relevant and fundamental is the right to be informed promptly of the charge against the individual.[135] It is unclear whether authorities actually charge individuals subject to extraordinary rendition with crimes, and, if so, whether authorities provide them with the other procedural guarantees established in Article 14. At the very least, those guarantees are not present prior to their transfer,[136] and detainees are frequently denied access to counsel.[137] Moreover, the interrogations that take place after transfer likely violate Article 14(g)’s minimum guarantee that persons “[n]ot . . . be compelled to testify against [themselves] or to confess guilt.”[138] El Masri’s case shows the consequences when a country ignores its obligations under Article 14.
Extraordinary rendition more indirectly implicates other provisions of the ICCPR, including the right to freedom of association,[139] the right to hold opinions without interference,[140] and the right to freedom of movement.[141]
Article 2 requires that persons claiming a violation of their rights under the ICCPR must “have an effective remedy.”[142] Yet, as demonstrated in the cases of Qassem, Rashul, and el Masri, detainees rarely have any effective means to claim their rights under the ICCPR or to challenge their transfer.[143]
Most of the above protections in the ICCPR may be the subject of derogation. Derogation, however, is only allowed “to the extent strictly required by the exigencies of the situation.”[144] If a State Party elects to derogate, it must immediately inform the Secretary-General of the United Nations of the specific provisions from which it has derogated and the reasons for derogation.[145]
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One non-derogable provision is the guarantee in Article 7 that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[146] In light of the non-derogability of this provision, as well as the requirement in Article 2 that each State Party give effect to the rights in the ICCPR, it is clear that extraordinary rendition violates Article 7. Another non-derogable provision is Article 16, which guarantees the “right to recognition everywhere as a person before the law.”[147] This provision indicates that under no circumstances may a country transfer persons in a way that strips them of recognition before the law. States Parties also may not derogate from the rights to freedom of thought, conscience, and belief, as articulated in Article 18.[148] Extraordinary rendition of a person based on advocacy of unpopular beliefs may, therefore, violate Article 18.
The U.N. adopted the International Covenant on Economic, Social and Cultural Rights in 1966 as a companion to the ICCPR.[149] Unlike the rights articulated in the ICCPR, the provisions of the International Covenant on Economic, Social and Cultural Rights are not always immediately enforceable; States Parties are to implement the rights “to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights . . . .”[150] Additionally, the International Covenant on Economic, Social and Cultural Rights does not contain any explicit jurisdictional limitations (unlike the ICCPR).[151] When a government abducts and transports a person to another country to face torture and other forms of cruel, inhuman or degrading treatment, that government violates the person’s economic, social and cultural rights. Extraordinary rendition violates the Article 11 right to an adequate standard of living for all persons and their families.[152] Some of the transfer methods and interrogation tactics may also violate the right to be free from hunger[153] and the right to physical and mental
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health.[154] El Masri’s story demonstrates that extraordinary rendition may also undermine the family rights articulated in Article 10, because the process separates a person from his or her family.[155] As noted above, after el Masri’s extraordinary rendition, his family left Germany for Lebanon because they believed el Masri had abandoned them.
The Convention Relating to the Status of Refugees (“Refugee Convention”), adopted by the United Nations in 1951,[156] is relevant to an analysis of extraordinary rendition since officials rarely abduct individuals in their country of origin.[157] While the Refugee Convention applies directly only to persons who have become refugees as a result of events occurring before January 1, 1951,[158] it has been applied to subsequent events by the Protocol Relating to the Status of Refugees (“Refugee Protocol”).[159] A refugee is defined as a person outside his or her country of nationality who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and “is unable or, owing to such fear, is unwilling to avail himself to the protection of that country . . . .”[160] Therefore, the Refugee Convention and Protocol only protect such persons, and only with regard to their potential transfer to their country of nationality or habitual residence. Rashul and el Masri were not transferred to their countries of nationality, and therefore the Refugee Convention and Protocol would not govern their extraordinary renditions. These instruments are relevant, however, to the extraordinary rendition of Qassem and Agiza, discussed supra and infra, respectively.
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Article 12 of the Refugee Convention states that “[t]he personal status of a refugee shall be governed by the law of the country of his domicile . . . .”[161] Because extraordinary rendition typically circumvents the extradition laws of the detainee’s country of domicile,[162] it violates Article 12. Article 16 affords refugees free access to the courts of law on the territory of all States Parties and provides that refugees shall enjoy “the same treatment as a national in matters pertaining to access to the courts.”[163] To the extent that Qassem and Agiza were subjected to deportation or extradition outside of the legal extradition process presumably afforded to nationals of Croatia and Sweden, their transfers violated Article 16. The provision of Article 16 guaranteeing “free access to the courts” may not be subject to any reservations.[164]
Extraordinary rendition also potentially violates the Refugee Convention’s Article 32 prohibition on the expulsion of a refugee without due process,[165] and the Article 33 prohibition on the return (“refouler”) of a refugee to a place where his or her life or freedom would be threatened.[166] Viewed in light of the definition of refugee, the prohibition on return is limited to the transfer of a person to his or her country of nationality or habitual residence.[167] As demonstrated above, extraordinary rendition denies detainees due process of law prior to expulsion. Although due process of law must always be afforded, under Article 32 a refugee may be denied the right to submit evidence, to appeal, or to have representation before a competent authority, if such denial of rights is required by “compelling reasons of national security.”[168] Yet, if a refugee poses a threat to national security, the country of the refugee’s domicile could simply detain the individual. Therefore, the country of domicile would likely have difficulty presenting “compelling reasons” to curtail the refugee’s procedural rights under Article 32 while pursuing expulsion. Detention is arguably a safer alternative than releasing the individual into the custody of another state. Moreover, Article 32(3) gives refugees subject to expulsion a “reasonable period within which to seek legal admission into another country.”[169] There is no evidence that countries ever honor this provision in the process of extraordinary rendition.
The prohibition on refoulement in Article 33 is of particular concern because the countries receiving detainees frequently target political prisoners
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and persons accused of extremism or terrorism for particularly harsh conditions of confinement.[170] Extraordinary rendition appears to violate Article 33’s prohibition on return when the return will result in threats to an individual’s life or freedom on account of political opinion. Such was the case when the United States sent Qassem back to Egypt, where he had been sentenced to death in absentia. Even though Article 33(2) states that the prohibition on refoulement does not extend to cases in which a refugee is a danger to the security of the country in which the refugee is located, or where the refugee has been convicted of a particularly serious crime,[171] those conditions are unlikely to be relevant when a person is at liberty in his or her country of residence and is subsequently abducted by agents of another state. For example, there is no evidence that the Croatian government found Qassem to be a threat to state security. Article 33 is one of the Refugee Convention provisions to which States Parties may not make reservations,[172] and it is, therefore, non-derogable. Additionally, Article 1(3) of the Refugee Protocol provides that “[t]he present Protocol shall be applied by the States Parties hereto without any geographic limitation . . . .”[173] This provision, thus, bars any effort to circumvent the provisions of the Refugee Convention and Protocol by altering the geographic location of a detainee.
Lastly, extraordinary rendition implicates other provisions of the Refugee Convention, including the Article 26 protection of the freedom of movement, and Article 31’s allowance that the movement of refugees unlawfully residing in a country may only be restricted until such time that their status is regularized.[174]
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”) defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . .”[175] The Convention against Torture
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requires only a minimal degree of state action to implicate its provisions; the pain or suffering must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”[176] Article 16 requires every State Party to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture . . . .”[177]
If the receiving country tortures the detainee or subjects the detainee to other forms of ill-treatment, that country is violating the Convention against Torture. Article 3 is particularly important with regard to other countries participating in extraordinary rendition since it prohibits refoulement to a state where there are substantial grounds to believe that a person would be in danger of being tortured.[178] To determine whether such substantial grounds exist, the article imposes procedural obligations by requiring that “the competent authorities . . . take into account all relevant considerations.”[179] Article 2 explicitly provides that States Parties may not advance any grounds to justify torture.[180] Article 4 requires each State Party to ensure that all acts of torture, as well as attempts to commit, or be compliant in, torture are criminalized.[181] The Convention against Torture also requires each State Party to extradite or prosecute accused torturers who are present in any territory under its jurisdiction.[182]
The history of the drafting of the Convention against Torture[183] and the jurisprudence of the Committee against Torture[184] provide valuable guidance in interpreting the Convention against Torture’s provisions, as applied to the practice of extraordinary rendition. First, the drafting committees discussed the implications of Article 3 on existing extradition treaties.[185] The drafters concluded that a State Party could make a valid reservation to Article 3 on the grounds that it may be incompatible with its existing extradition treaties.[186] However, to the extent that extraordinary rendition circum-
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vents traditional methods of extradition,[187] a country engaging in extraordinary rendition could not rely on such reservations to avoid implicating Article 3. Indeed, there is no indication that the CIA followed standard extradition procedures in transferring Qassem to Egypt or Rashul and el Masri to Afghanistan. Of the three men, only Qassem was wanted on criminal charges in the receiving country.
Second, the history of the Convention against Torture clarifies that the drafters intended Article 3 to have extraterritorial effect. The drafters modeled Article 3 after Article 33 of the Refugee Convention, but they intended to make the provisions of Article 3 broader in scope.[188] During the drafting process, they added the term “return (‘refouler’)” to Article 3 “in order to make the provision more complete . . . . As it now reads, the article is intended to cover all measures by which a person is physically transferred to another state.”[189] Therefore, while the CIA removed Rashul from his home country to Afghanistan, the drafting history of the Convention against Torture demonstrates that his transfer nonetheless constitutes refoulement and is prohibited by Article 3.
The Committee against Torture has published two findings that are particularly relevant to the practice of extraordinary rendition. In Khan v. Canada,[190] the Committee determined that by transferring a person to a country that was not a party to the Convention against Torture, Canada violated Article 3, both because the transfer would subject the person to a danger of torture, and because the transfer would make it impossible for the person to apply for protection under the Convention against Torture.[191] In Agiza v. Sweden,[192] the Committee against Torture determined that Sweden’s use of extraordinary rendition in December 2001 violated Article 3.[193] With U.S. assistance, the government of Sweden seized Egyptian asylee Ahmed Agiza and transported him to Egypt.[194] The Committee found that “it was known, or should have been known, to [Sweden]’s authorities at the time of [Agiza]’s
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removal that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons.”[195] The Committee also determined that “an inability to contest an expulsion decision before an independent authority . . . [is] relevant to a finding of a violation of article 3” because it violates “the procedural obligation to provide for effective, independent and impartial review required by article 3 of the Convention.”[196] The Committee rejected Sweden’s argument that it had obtained assurances from the government of Egypt to ensure that Agiza would not be ill-treated.[197] A recent report by the Special Rapporteur on torture confirms that extraordinary rendition violates Article 3 of the Convention against Torture.[198]
Extraordinary rendition may also constitute a conspiracy to commit torture in violation of the Convention against Torture. Countries not directly committing acts of torture, but facilitating the practice by providing intelligence or material assistance, may violate Article 1’s prohibition on state “consent or acquiescence”[199] to torture. They may also violate domestic laws, enacted in compliance with Article 4 of the Convention against Torture, which criminalize torture. For example, U.S. officials with direct involvement in extraordinary rendition have revealed that they were aware that the transfers were likely to result in torture,[200] and many have suggested that the administration was “turning a blind eye”[201] to that likelihood. In some cases, officials from the country conducting the extraordinary rendition directly participate in the interrogation process after the detainee is delivered to the receiving country.[202] El Masri, for instance, reported that his interro-
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gators in Afghanistan were U.S. officials using an interpreter.[203] At the very least, these reports suggest “consent or acquiescence” to torture in violation of Article 1. Qassem’s extraordinary rendition to Egypt also suggests a heightened level of U.S. involvement: in the 1990s, CIA officers reportedly collaborated with Egyptian interrogators to such an extent that the U.S. officials would provide their Egyptian counterparts with a list of questions in the morning, and they would receive the answers by evening.[204] This close cooperation demonstrates that the United States was encouraging and relying upon the Egyptians’ interrogation techniques.
Additionally, Article 1 is implicated when countries such as Sweden attempt to obtain diplomatic assurances that receiving countries will not subject transferred detainees to torture, particularly when the receiving countries systematically practice torture[205] and also demonstrate a pattern of denying the existence of torture.[206] The Special Rapporteur on torture has expressly stated that when a receiving state engages in a systematic practice of torture, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.”[207] These comments directly implicate Sweden’s transfer of Agiza to Egypt.
The Vienna Convention on Consular Relations (“Vienna Consular Convention”) provides special protections for diplomats,[208] and also guarantees consular access to individuals not located in their country of nationality.[209] Under the terms of Article 36, States Parties must allow consular officers to communicate with nationals of their home country.[210] If a State Party takes a
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person into custody, it must inform the detainee of the right to consular access.[211] The Vienna Consular Convention requires the detaining authority to notify the detainee’s consular post of the detention if the detainee requests such notification.[212]
It is likely that extraordinary rendition breaches these provisions of the Vienna Consular Convention only with respect to the country in which the person is seized and the country in which the person is ultimately detained (if that country is not the detainee’s home country).[213] Some commentators have argued that the Vienna Consular Convention’s protections may also govern the conduct of a country asserting authority during invasion and occupation;[214] this conclusion suggests that the Vienna Consular Convention could also apply to the country responsible for orchestrating the transfer, even if that country, technically, is not the one in which the person is seized or detained.
There are at least two documented cases of extraordinary rendition in which government officials, in violation of Article 36, denied individuals access to consular officers. In September 2002, the United States detained Maher Arar, who holds dual Canadian and Syrian citizenship.[215] For one week, detaining authorities denied Arar access to Canadian consular officials, and after his transfer to Syria, the United States refused to acknowledge the transfer to Canadian authorities.[216] In November 2002, officials detained British citizen
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Wahab al Rawi in The Gambia.[217] While being interrogated at the headquarters of the country’s secret police, al Rawi requested and was denied consular access.[218]
Due to the secrecy surrounding the practice of extraordinary rendition, there is no direct documentation of other instances of violations of the Vienna Consular Convention. However, since persons subjected to extraordinary rendition evidently have not have made use of consular assistance, it is likely that, in many instances, officials are denying detainees their right to consular communication. El Masri’s captors, for instance, told him, “You’re in a country without laws and no one knows where you are. Do you know what that means?”[219] Such a statement suggests that officials are using extraordinary rendition to deny individuals their rights under the Vienna Consular Convention.
The Geneva Conventions of 1949 primarily articulate protections for persons involved in armed conflict.[220] Within those protections are several provisions relevant to the practice of extraordinary rendition. They include the prohibition on torture and inhuman treatment of prisoners of war, the prohibition on forcible transfer of civilians during occupation, and the prohibitions on torture and cruel or humiliating treatment under Common Article 3. The following sections examine each of these provisions in turn.
The Geneva Convention Relative to the Treatment of Prisoners of War (“POW Convention”) protects prisoners of war (“POWs”) detained as a consequence of international armed conflict.[221] Several categories of persons are protected as POWs. “Members of the armed forces of a Party to the conflict” are granted POW protection when they fall into enemy hands.[222] Article 4 also affords protected person status to “members of militias or volunteer corps forming part of [the] armed forces” and “members of other militias . . . including those of organized resistance movements.”[223] Persons falling under
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the latter category, however, must comply with four additional requirements in order to be eligible for protection. Those requirements include carrying arms openly and “having a fixed distinctive sign recognizable at a distance.”[224] Nearly every person who is not protected as a POW, however, automatically acquires protected person status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Civilian Convention”).[225] If a person’s status as a POW is in doubt, that person retains the protections of the POW Convention until a competent tribunal, as defined by Article 5, determines his or her status.[226]
Grave breaches under the POW Convention include “willful killing, torture or inhuman treatment, . . . [and] willfully causing great suffering or serious injury to body or health.”[227] Under the terms of Article 131, States may not derogate from the provisions of the POW Convention.[228] Although the Geneva Conventions leave “torture” undefined,[229] Pictet’s authoritative commentary states that inhuman treatment may include “being brought down to the level of animals” and “[c]ertain measures . . . which might cut prisoners of war off completely from the outside world and in particular from their families . . . .”[230] Pictet observes that the prohibition on causing great suffering includes “moral suffering” and he notes that a perpetrator may cause great
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suffering in order to effect punishment or revenge, or simply to satisfy the perpetrator’s sadistic desires.[231]
High Contracting Parties may transfer POWs into the custody of other nations, but only “to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.”[232] Common Article 1 of the Geneva Conventions states that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”[233] Hence, the use of extraordinary rendition, which does not ensure respect for the provisions prohibiting torture, inhuman treatment, and the infliction of suffering by the receiving country, violates both Article 1 and the substantive provisions prohibiting ill-treatment. Additionally, “[t]he safeguard contained in [Article 12] is reinforced by Article 131 relating to the responsibilities of the Contracting Parties, which may not absolve themselves of any liability incurred in respect of one of the grave breaches defined in Article 130.”[234] The obligations of Article 12 persist after transfer; if the receiving power “fails to carry out the provisions of the Convention in any important respect,” the transferring power must “take effective measures to correct the situation.”[235] A transferring power may commit a grave breach either if the ill-treatment the transferee receives after transfer is “willful,”[236] or if the transferring power receives notice of torture or inhuman treatment in the receiving country and fails to take subsequent corrective action.[237] Additionally, regardless of any ill-treatment a detainee may suffer after transfer, extraordinary rendition cuts detainees off from the outside world and hence constitutes inhuman treatment, itself a grave breach of the Geneva Conventions.[238]
The Civilian Convention protects civilians during times of armed conflict and occupation.[239] Article 4 of the Civilian Convention denies protected person status to persons who are in the hands of their own government[240] and, during armed conflict, to nationals of co-belligerent and neutral states.[241] The Civilian Convention protects all other civilians held during armed conflict from torture and other ill-treatment, just as the POW Convention protects POWs from such abuses.[242] Thus, Rashul, an Iraqi national, is a protected
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person under the Civilian Convention during the conflict in Iraq. This is because during occupation,[243] nationals of neutral states become protected persons,[244] and special provisions of the Civilian Convention, such as Article 49, apply. Article 49 prohibits the transfer or deportation of protected persons out of the occupied territory, regardless of the occupier’s motive, except when an occupying power evacuates an area for security or military reasons.[245]
The Civilian Convention defines the same grave breaches as the POW Convention, but also includes “unlawful deportation or transfer or unlawful confinement of a protected person.”[246] Therefore, the Civilian Convention incorporates the provisions of Article 49 into its grave breaches. Extraordinary rendition violates Article 49 when it originates in an occupied territory and involves a person protected as a civilian under the Civilian Convention.[247] Hence, the CIA’s removal of Rashul from Iraq during the U.S. occupation of Iraq violated Article 49.
The United States, which plays a major role in orchestrating extraordinary renditions, has argued that forcible transfer of civilians out of occupied territory is not always a violation of Article 49. In particular, U.S. officials argue that Article 49 does not prohibit forcible transfers that comport with existing immigration laws.[248] Moreover, they argue that Article 49 allows for short-term transfers out of the occupied territory to “facilitate interrogation.”[249] Presumably, this argument was the justification for Rashul’s transfer to Afghanistan. Nevertheless, such claims ignore the plain language of Article 49, the
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historical impetus for the prohibition on involuntary transfer, and Pictet’s authoritative commentary.
First, Article 49 prohibits forcible transfers and deportations “regardless of their motive.”[250] Article 49 only allows for forcible evacuations under the limited circumstances articulated in the second paragraph, and the expressio unius interpretive canon suggests that Article 49 permits no other forcible transfers or deportations. Moreover, Article 49 was drafted in response to Nazi Germany’s policy of stripping Jews of their citizenship to render their presence in occupied territories unlawful, thereby forcing their deportation.[251] Hannah Arendt noted that the Nazis took “extreme care” to insist that all Jews of non-German nationality “should be deprived of their citizenship either prior to, or, at the latest, on the day of deportation.”[252] Furthermore, Pictet’s commentary states definitively that “[t]he prohibition [against deportations and forcible transfers in Article 49(1)] is absolute and allows of [sic] no exceptions, apart from those stipulated in paragraph 2.”[253] Article 49 is intended to prohibit all forms of forcible transfer of persons protected under the Civilian Convention, regardless of their legal status within the occupied territory, and regardless of the length of time that the transfer will last. Therefore, extraordinary rendition of protected civilians, such as Rashul, from occupied territory violates Article 49 and is a grave breach of the Civilian Convention.
Common Article 3 articulates minimum protections for “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” to any of the Geneva Conventions.[254] It provides “rules of humanity which are recognized as essential by civilized na-
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tions” and applies “without any condition in regard to reciprocity.”[255] Article 3 protects persons taking no active part in hostilities, including those who have laid down their arms.[256] While some officials argue that Common Article 3 does not apply to international conflicts,[257] Pictet explains that the article was rooted in “the idea of applying the principle to all cases of armed conflict, including internal ones.”[258] It seems illogical that greater international safeguards might govern a purely internal armed conflict than would govern an armed conflict that is international in character.[259] Moreover, the Additional Protocols to the Geneva Conventions are designed to extend Article 3 protections to all persons.[260]
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Article 3 protects “[p]ersons taking no active part in the hostilities” from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”[261] Article 3 also provides that those persons “shall in all circumstances be treated humanely.”[262] Additionally, Article 3 “prohibit[s] at any time and in any place whatsoever . . . cruel treatment or torture”[263] and “outrages upon personal dignity, in particular humiliating and degrading treatment.”[264] Pictet observes that “no excuse, no attenuating circumstances” can justify these acts.[265] Pictet’s comment suggests that authorities may not use extraordinary rendition to excuse or avoid responsibility for torture or for cruel, humiliating, or degrading treatment. Therefore, under conditions of armed conflict not otherwise governed by the Geneva Conventions, extraordinary rendition violates Common Article 3 if it constitutes an effort to cause or justify torture or cruel, humiliating, or degrading treatment.
A thorough examination of extraordinary rendition in light of available human rights instruments is only the first step in addressing the gross human rights violations involved with extraordinary rendition; implementing these instruments presents a tremendous challenge. One traditional tool for preventing or discouraging human rights violations is embarrassment.[266] By revealing that governments are acting in flagrant violation of customary international law and human rights instruments to which they are parties, the international community can exert pressure on the offending governments to halt their practices. Countries should not expect that the world community will look away or excuse human rights violations simply because of the threat of global terrorism. If the struggle against terror is being conducted as part of a larger effort to win people’s hearts and minds all over the world, governments must uphold international human rights standards in order to maintain legitimacy in that effort. Terrorists use abduction and kidnapping to instill fear. Governments who pay lip service to the rule of law should not themselves resort to tactics employed by the very terrorists they battle. By using such reprehensible tactics, countries risk alienating valuable allies and open-
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ing the door to further human rights abuses by other governments. Extraordinary rendition can subvert the rule of law and, hence, undermine essential international law enforcement cooperation.
National and international human rights concerns can operate in tandem to expose violations and spark criticism of government involvement in extraordinary rendition.[267] International attention can also lay the groundwork for encouraging formal enforcement.[268] When abductions take place without the consent or authorization of the local government, prosecutors may bring criminal charges of kidnapping and assault.[269] Civil suits may also exert pressure on governments participating in extraordinary rendition.[270]
Universal criminal jurisdiction may provide yet another tool for challenging the practice.[271] In 2004, the New York–based Center for Constitutional Rights relied on Germany’s universal jurisdiction law to initiate a criminal prosecution on behalf of several Abu Ghraib detainees against Donald Rumsfeld and other high-ranking U.S. officials.[272] Although this proceeding was dismissed under the principle of subsidiarity,[273] Germany is currently investi-
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gating the extraordinary rendition of el Masri, a German national.[274] This time, because a German national is the victim of the crime, and because the United States has initiated no effort to punish the perpetrators, German authorities may prove more willing to invoke universal jurisdiction and to prosecute the individuals responsible for el Masri’s extraordinary rendition.[275]
Several of the human rights instruments implicated by extraordinary rendition, either explicitly or implicitly, require States Parties to take affirmative steps to address the practice. For example, the Preamble of the Universal Declaration directs countries to “strive . . . to secure . . . universal and effective recognition and observance”[276] of the rights it articulates. Because the Universal Declaration obligates nations to strive to secure the “right to recognition everywhere as a person before the law”[277] for all people, presumably it also obligates countries to provide individuals with a legal mechanism to challenge their extraordinary rendition. A similar logic applies to the non-derogable right to recognition everywhere as a person before the law under the ICCPR.[278] Should a country refuse to assert jurisdiction over a person who has been subjected to extraordinary rendition, that country would be violating these provisions.
The Convention against Torture requires each State Party to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”[279] While it is unlikely that governments participating in extraordinary rendition will follow this provision, other safeguards in the Convention against Torture suggest that the obligation to investigate allegations of torture extends more broadly. For instance, the Convention against Torture requires States Parties to extradite or prosecute persons suspected of engaging in torture.[280] The Convention against Torture’s drafters considered and rejected a proposal to permit a State Party to wait for an extradition request.[281] They concluded that other States Parties who can potentially prosecute alleged torturers would often decline to assert jurisdiction.[282] Therefore, if a State Party finds a suspected torturer on its terri-
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tory, that State Party is obligated to take the alleged offender into custody or to take other measures to ensure the presence of the alleged offender.[283] Next, the State Party must make an immediate preliminary inquiry into the facts.[284] Then, if the suspect’s home country makes no effort to bring about extradition, the State Party must prosecute the suspect.[285]
The Geneva Conventions contain a common article that establishes the obligation of High Contracting Parties to enact penal sanctions criminalizing grave breaches.[286] In addition to this obligation, each High Contracting Party is required “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”[287] This affirmative duty reflects the obligation in Article 1 “to respect and to ensure respect for the present Convention in all circumstances.”[288] It is apparent that the Geneva Conventions require High Contracting Parties to search for and punish persons alleged to have committed grave breaches of its provisions.[289] As demonstrated above, extraordinary rendition can constitute a grave breach both because it results in torture and other forms of ill-treatment, and because it is an involuntary transfer in violation of Article 49. Countries seeking to avoid the responsibility to prosecute officials responsible for grave breaches may themselves be violating the Geneva Conventions.
The justification for this obligation to arrest and prosecute is similar to that regarding violators of the Convention against Torture: “[O]ther remedies, such as those provided by the political branches, are most often ineffective and inadequate.”[290] This is so for several reasons. First, high-level officials in the political branches are themselves often responsible for orchestrating grave breaches. Second, the country serving as the location of the ill-treatment is not likely to take action to challenge its own interrogation practices. Third, the country of nationality of the person subjected to extraordinary rendition may be unlikely to step forward in defending that person. Extraordinary rendition is commonly characterized as an effort to detain and question terror suspects. Governments may therefore be reluctant to intervene on behalf of per-
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sons reported to be supporters of terrorism.[291] For example, because U.S. officials suspected that Rashul was involved in the Iraqi insurgency, the interim Iraqi government would have had little motivation to petition the United States for his release. Further, there is a substantial risk that the detainee’s relatives and officials of the detainee’s country of origin are unaware of the detention and transfer, as evidenced by the departure of el Masri’s family for Lebanon. All of these factors combine to demonstrate that other High Contracting Parties have a heightened obligation to intervene, prosecute, and punish persons responsible for grave breaches when the grave breaches involve extraordinary rendition.
The International Criminal Court (“ICC”) may also present a viable means for bringing the perpetrators of extraordinary rendition to justice.[292] The crime may be construed as occurring both in the country from which the detainee originates and in the country where the detainee is ultimately held. Either location, therefore, would provide ICC jurisdiction over those responsible for extraordinary rendition based on the territory where the crime occurs.[293] The United States is likely to criticize harshly any attempt to exercise ICC jurisdiction over U.S. nationals,[294] but this mechanism may also be a more palatable means of bringing people to justice since it avoids drawing attention to one country’s prosecutorial zeal.[295] While the United States has negotiated bilateral agreements with many countries to prohibit surrender of members of the U.S. military to the ICC,[296] European nations have rejected
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these attempts to evade criminal responsibility.[297] As with the exercise of universal jurisdiction in domestic courts, invoking the authority of international criminal law could prompt the United States to extradite and prosecute its own nationals.[298]
Other international tribunals may also play an important role in ending extraordinary rendition. The jurisprudence of the Human Rights Committee and the Committee against Torture suggests that those bodies would find that extraordinary rendition violates their respective instruments. Moreover, the International Court of Justice may serve as a useful forum for addressing some violations of the Vienna Consular Convention.[299]
Because the U.S. government is a primary architect of extraordinary rendition, examining domestic U.S. law for means of implementing relevant international norms is useful. The federal habeas corpus statute[300] provides a mechanism by which persons subjected to extraordinary rendition can challenge their detention in a U.S. court.[301] Because the statute affords habeas relief to persons held in custody “in violation of the Constitution or laws or treaties of the United States,” Qassem, Rashul, el Masri, or their relatives[302] can challenge their detentions as violating any of the instruments described above to which the U.S. is a party.[303] Moreover, federal statutes criminalize war crimes under the Geneva Conventions,[304] as well as extraterritorial torture and the conspiracy to commit torture.[305] While it is presently unlikely that U.S. prosecutors will initiate prosecutions against U.S. officials in U.S. courts for those crimes, a person could petition for habeas relief on the
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grounds that the detention violates those statutes. Criminal prosecution may be more likely in the future.
Tort actions may also provide a remedy. In Sosa v. Alvarez-Machain[306] the Supreme Court concluded that illegal detention for less than one day did not violate a norm of customary international law sufficient to invoke jurisdiction under the Alien Tort Statute.[307] The torture and long-term detention involved in extraordinary rendition, however, still remain valid claims after the Sosa decision.[308]
The thematic procedures established by the Commission on Human Rights constitute one other prompt mechanism for responding to human rights violations occurring in the context of extraordinary rendition. For example, the Special Rapporteur on the promotion and protection of human rights while countering terrorism,[309] the Special Rapporteur on torture,[310] the Working Group on Enforced or Involuntary Disappearances,[311] and the Working Group on Arbitrary Detention[312] can assist persons wishing to challenge extraordinary rendition by “function[ing] as a means of communication between governments and victims of human rights abuses.”[313] Special Rapporteurs and Working Groups are authorized to make urgent appeals to governments, to conduct fact-finding, and to work to end specific human rights abuses.[314] Moreover, the mandate of the Working Group on Enforced or Involuntary Disappearances is “to assist families in determining the fate and whereabouts of their relatives who, having disappeared, are placed outside the protection of the law,”[315] and to investigate such cases.[316]
Additionally, on September 23, 2005, negotiations were completed on the new International Convention for the Protection of All Persons from Enforced Disappearance (“Enforced Disappearance Convention”).[317] While the
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draft convention has not yet opened for signature, it “represents significant progress in international law for the protection of persons from enforced disappearance.”[318] In particular, it establishes an explicit definition of enforced disappearance consistent with the elements of extraordinary rendition.[319] The Enforced Disappearance Convention could be a useful tool to protect against and stop the practice of extraordinary rendition. It is also helpful in its current form because it provides further evidence that state-sponsored secret abductions violate fundamental human rights. The Enforced Disappearance Convention is likely to draw attention to the issue of extraordinary rendition as it opens for signature in 2006.
The countries directly involved in extraordinary rendition may themselves provide the most effective means of addressing the practice. Countries that have orchestrated extraordinary renditions have sacrificed the moral authority to be leaders in promoting the rule of law and respect for human rights.[320] Countries with poor human rights records that have been enlisted to receive suspects may react with hostility when their partners in torture persist in criticizing their human rights practices.[321] In order to regain international legitimacy, the architects of extraordinary rendition may need to take dramatic steps to show the world that they intend to play by the rules.[322] Only then will they have a genuine opportunity to compel other countries to comply with the important obligations embodied in contemporary human rights instruments.
[*] Regents Professor and
Fredrikson & Byron Professor of Law, University of Minnesota Law
School.
[**] J.D. Candidate, University of Minnesota Law
School, Class of 2007; B.A., Amherst College, 1991.
[1]. Jane Mayer, Outsourcing Torture: The
Secret History of America’s “Extraordinary Rendition”
Program, New Yorker, Feb. 14, 2005, at 106, 109.
[2]. Id.
[3]. Id.
[4]. Id.
[5]. Id.
[6]. Dana Priest, Memo Lets CIA Take Detainees
Out of Iraq: Practice Is Called Serious Breach of Geneva Conventions, Wash.
Post, Oct. 24, 2004, at A1.
[7]. Id.
[8]. Id.
[9]. Id.
[10]. Details of Khaled el Masri’s
abduction are reported in numerous sources. See Bruce Zagaris, U.S.
Extraordinary Renditions Subject to Foreign and U.S. Investigations and
Oversight, 21 Int’l Enforcement L. Rep. 188 (2005); Michael Hirsh et
al., Aboard Air CIA, Newsweek, Feb. 28, 2005, at 32; Scott Shane et al.,
CIA Expanding Terror Battle Under Guise of Charter Flights, N.Y. Times,
May 31, 2005, at A1; Craig Whitlock, Europeans Investigate CIA Role in
Abductions, Wash. Post, Mar. 13, 2005, at A1; CBS News: CIA Flying
Suspects to Torture? (CBS television broadcast Mar. 6, 2005) [hereinafter
CBS News].
[11]. See Mayer, supra note 1, at 106–07
(“[Extraordinary rendition] began as a program aimed at . . . people
against whom there were outstanding foreign arrest warrants.”). Mayer
notes that in some cases in the 1990s, the United States successfully pressured
potential receiving countries to issue arrest warrants. Id. at
110.
[12]. See Stephen P. Cutler, Building
International Cases, FBI L. Enforcement Bull., Dec. 1, 1999, at 5
(“Forcible return, known as extraordinary rendition, also may be an option
but poses special considerations . . . . The U.S. Department of Justice
prohibits forcible returns without prior approval by senior U.S. government
officials.”); Alan J. Kreczko, Deputy Legal Adviser, U.S. Dep’t of
State, The Alvarez-Machain Decision: U.S. Jurisdiction over Foreign
Criminal Humberto Alvarez Machain, Statement Before the Subcommittee on Civil
and Constitutional Rights of the House Judiciary Committee (July 24, 1992),
in 3 U.S. Dep’t St. Dispatch 616, Aug. 3, 1992 (“These
procedures require that decisions as to extraordinary renditions from foreign
territories be subject to full inter-agency coordination and that they be
considered at the highest levels of the government.”); Tracy Wilkinson
& Bob Drogin, Missing Imam’s Trail Said to Lead from Italy to
CIA, L.A. Times, Mar. 3, 2005, at A1 (“‘Each one had to be built
almost as if it’s a court case in the United States,’ said [Michael]
Scheuer, who from January 1996 to July 1999 ran the [Central Intelligence
A]gency’s clandestine unit searching for Osama bin Laden. ‘I always
assumed if I had 15 lawyers’ signatures, it was probably
fine.’”).
[13]. See, e.g., Rajiv Chandrasekaran
& Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, Wash.
Post, Mar. 11, 2002, at A1 (describing U.S. cooperation with Albanian security
forces in 1998 to gather intelligence on five individuals suspected of being
members of the Egyptian Islamic Jihad, and then to transfer those individuals to
Egypt); Mayer, supra note 1,
at 109–10.
[14]. Wilkinson & Drogin, supra note
12.
[15]. See Mayer, supra note 1, at 107 (noting that Representative
Markey complained that after repeated requests of CIA officials to provide an
accurate count of the number of people transferred, “[t]hey refuse to
answer. All they will say is that they’re in compliance with the
law”); Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends
Interrogations, Wash. Post, Dec. 26, 2002, at A1 (“Thousands have been
arrested and held with U.S. assistance in countries known for brutal treatment
of prisoners, the officials said.”).
[16]. See Shannon McCaffrey, Canadian
Sent to Syrian Prison Disputes U.S. Claims Against Torture, Knight
Ridder/Trib. News Service, July 29, 2004; Whitlock, supra note 10; Wilkinson & Drogin,
supra note 12.
[17]. See Douglas Jehl, Pentagon
Seeks to Shift Inmates from Cuba Base, N.Y. Times, Mar. 11, 2005, at A1;
Douglas Jehl & David Johnston, Rule Change Lets CIA Freely Send Suspects
Abroad to Jails, N.Y. Times, Mar. 6, 2005, at 1.
[18]. See Priest & Gellman, supra
note 15 (“[F]ive
officials acknowledged, as one of them put it, ‘that sometimes a friendly
country can be invited to “want” someone we grab.’ Then, other
officials said, the foreign government will charge him with a crime of some
sort.”).
[19]. See generally “War on
Terror” Is “Inaccurate” Label for War on Insurgency, 18
Inside Navy (Inside Washington Publishers, Crystal City, Va.), June 20, 2005.
But see Richard W. Stevenson, President Makes It Clear: Phrase is
“War on Terror,” N.Y. Times, Aug. 4, 2005, at A12.
[20]. See Johannes Morsink, The
Universal Declaration of Human Rights: Origins, Drafting, and Intent 36–91
(1999) (explaining the role of World War II as a catalyst for the human rights
protections in the Universal Declaration of Human Rights); Asbjørn Eide
& Gudmundur Alfredsson, Introduction, in The Universal
Declaration of Human Rights: A Common Standard of Achievement, at xxv–xxxv
(Asbjørn Eide & Gudmundur Alfredsson eds., 1999) (“[T]he
Universal Declaration [of Human Rights] draws on deep and widespread historical
roots.”). The United Nations Charter (1945) and the Universal Declaration
of Human Rights (1948) are typically viewed as the basis for modern
international human rights protections, which have subsequently been articulated
in numerous human rights instruments. See David Weissbrodt et al.,
International Human Rights: Law, Policy, and Process 8–10 (3d ed.
2001).
[21]. See Manfred Nowak, Introduction to
the International Human Rights Regime 273 (2003) (noting that international
human rights protections developed “during the second half of the 20th
century in reaction to specific threats,” resulting in “reactive and
event-driven human rights policies”).
[22]. See Theodor Meron, War Crimes Law
Comes of Age 193 (1998) (reporting that the Nuremberg Charter defined crimes
against humanity as “murder, extermination, enslavement, deportation and
other inhumane acts . . . or persecutions on political, racial or religious
grounds”); William A. Schabas, Problems of International Codification:
Were the Atrocities in Cambodia and Kosovo Genocide?, 35 New Eng. L. Rev.
287, 297–98 (2001) (describing the official adoption of the term crimes
against humanity for use in the charges at the Nuremberg Tribunals).
[23]. See, e.g., Raphael Lemkin, Axis
Rule in Occupied Europe 79–94 (1944) (defining the crime of genocide);
Convention on the Prevention and Punishment of the Crime of Genocide, 78
U.N.T.S. 277, entered into force Jan. 12, 1951; see also Linnea D.
Manashaw, Comment, Genocide and Ethnic Cleansing: Why the Distinction? A
Discussion in the Context of Atrocities Occurring in Sudan, 35 Cal. W.
Int’l L.J. 303, 317 (2005) (observing that the crime of genocide was not
defined prior to World War II, and therefore Nazi officials at Nuremberg were
tried for “crimes against humanity”).
[24]. See J. Herman Burgers & Hans
Danelius, The United Nations Convention against Torture: A Handbook on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 13–15 (1988) (noting that widespread use of torture after World
War II was the impetus for the elaboration of standards prohibiting torture,
culminating in the Convention against Torture); infra note 180 (describing the Convention against
Torture’s prohibition on torture).
[25]. See Richard B. Bilder, An
Overview of International Human Rights Law, in Guide to International
Human Rights Practice 3, 10 (Hurst Hannum ed., 4th ed. 2004) (noting that
torture and genocide, along with several other traditional human rights
violations, are now regarded as violations of customary international
law).
[26]. For example, Nowak observes that these
new human rights violations include violations committed by non-state actors and
intergovernmental organizations. See Nowak, supra note 21, at 275. Ethnic cleansing and the
use of rape as a weapon of war are other examples of newly addressed human
rights violations. See Meron, supra note 22, at 47–48, 205 (1998)
(observing that rape was tolerated and even used as a policy tool during the
Second World War, and was also prevalent in the conflict in the former
Yugoslavia); id. at 208–09 (noting that rape has been designated a
punishable offense by the Yugoslav war crimes tribunal).
[27]. See, e.g., Nigel S. Rodley, The
Treatment of Prisoners Under International Law 243 (2d ed. 1999) (“[T]he
phenomenon [of disappearances] is a special one, with its own characteristics,
and no single international standard has been framed to encompass
it.”).
[28]. See, e.g., Burgers & Danelius,
supra note 24, at 1
(“Many people assume that the Convention’s principal aim is
to outlaw torture . . . . On the contrary, the Convention is based
upon the recognition that the . . . practice[ ] [is] already outlawed under
international law.”); William A. Schabas, Genocide in International Law 7
(2000) (describing the interpretation and expansion of the term genocide to
include ethnic cleansing).
[29]. See Nowak, supra note 21, at 290 (describing the
“Dirty War” in Argentina between 1976 and 1983, in which the
government was responsible for thousands of disappearances). Rodley notes that
disappearances first became widespread in Guatemala in the 1960s. See
Rodley, supra note 27, at
245. The practice has since been documented in at least seventy-six countries,
with over 1000 cases reported in Argentina, Colombia, El Salvador, Guatemala,
Iraq, Peru, and Sri Lanka. Id. at 272.
[30]. See United Nations High
Comm’r for Human Rights, Human Rights Fact Sheet No. 6 (rev. 2), Enforced
or Involuntary Disappearances 2–3 (1997) (describing the various human
rights implicated by the practice of enforced disappearance); Amnesty
Int’l, “Disappearances” and Political Killings 97–107
(1994) (same).
[31]. See Declaration on the Protection
of All Persons from Enforced Disappearance, G.A. Res. 47/133, 47 U.N. GAOR Supp.
(No. 49) at 207, U.N. Doc. A/47/49 (Dec. 18, 1992).
[32]. See Rodley, supra note 27, at 255–64 (describing
successful challenges to the practice of disappearance that drew on the
International Covenant on Civil and Political Rights, the American Convention on
Human Rights, the European Convention on Human Rights, and various prohibitions
on torture and other forms of cruel, inhuman or degrading treatment); cf.
Manashaw, supra note 23, at
317 (noting that the people conducting the Nuremberg Tribunals were reluctant to
charge Nazi officials with genocide because a common understanding of the term
as a criminal offense had only begun to gain currency in 1944).
[33]. The U.S. Department of Justice has used
this term since the late 1980s. See Richard Sisk & Patrice
O’Shaughnessy, Streetwise Safir’s Return, Daily News (New
York), Apr. 14, 1996, at 7. At that time, however, the term referred to the
practice of abducting suspects abroad and bringing them to the United States or
another country to stand trial. See M. Cherif Bassiouni, International
Extradition: United States Law and Practice 189–90 (2d rev. ed. 1987).
Today, the term is an euphemism describing abduction designed not only to
circumvent extradition procedures, but also to avoid the protections of United
States or other judicial authorities. See Gloria Cooper, State of the
Art, Colum. J. Rev., July 1, 2005, at 13.
[34]. Some countries facilitate extraordinary
rendition by seizing suspects and delivering them to the custody of officials
from another country, who then transfer the detainees. See, e.g.,
Chandrasekaran & Finn, supra note 13 (describing Indonesia’s
cooperation with the United States in the extraordinary rendition of Muhammad
Saad Iqbal Madni). In other cases, extraordinary rendition may take place
without the assistance of local authorities or in violation of local laws.
See Whitlock, supra note 10.
[35]. See Bob Herbert, Op-Ed,
It’s Called Torture, N.Y. Times, Feb. 28, 2005, at A19 (“What
it means is that the United States seizes individuals, presumably terror
suspects, and sends them off without even a nod in the direction of due process
to countries known to practice torture.”); Danielle Knight, Outsourcing
a Real Nasty Job, U.S. News & World Rep., May 23, 2005, at 34
(“What it means is that the CIA or other government agencies can send, or
‘render,’ terrorism subjects for interrogation to other countries,
even those with records of human-rights violations and abuse of
prisoners.”); Self-Inflicted Wounds, Editorial, Int’l Herald
Trib., Feb. 17, 2005, at 8 (“‘[E]xtraordinary rendition[ ]’
[is] the bureaucratic euphemism for sending prisoners to countries where the
public and the press don’t kick up a fuss about torture.”).
[36]. See Rodley, supra note 27, at 244 (“[B]ecause of the
official refusal to acknowledge the detention [ ] and . . . official abandonment
of responsibility for the fate of the prisoner . . . all legal and moral
constraint on official behaviour is at once removed.”).
[37]. See Dana Priest, CIA’s
Assurances on Transferred Suspects Doubted, Wash. Post, Mar. 17, 2005, at A1
(quoting an unnamed U.S. official as saying, “They say they are not
abusing them, and that satisfies the legal requirement, but we all know they
do”).
[38]. See, e.g., Jonathan Power, Amnesty
International: The Human Rights Story 21–22 (1981).
[39]. See Minn. Law. Int’l Human
Rights Comm., Expectations Denied: Habeas Corpus and the Search for
Guatemala’s Disappeared 4 (1988) (“Unexplained disappearances also
prevent the creation of public martyrs or political prisoners who might serve as
a rallying point for the opposition.”).
[40]. See Amnesty Int’l,
supra note 30, at 89
(“Impunity for the perpetrators is a common feature of governmental
programs of ‘disappearances’ and political killings. Secrecy helps
to ensure impunity by preventing the facts becoming known.”); Minn. Law.
Int’l Human Rights Comm., supra note 39, at 4 (“[A]s the term
disappearance implies, the question of responsibility for kidnapping
and/or murder is evaded.”).
[41]. See John Barry et al., The
Roots of Torture, Newsweek, May 24, 2004, at 26, 32 (“[Former CIA
Director George] Tenet suggested [to Congress] it might be better sometimes for
such suspects to remain in the hands of foreign authorities, who might be able
to use more aggressive interrogation methods.”); DeNeen L. Brown &
Dana Priest, Deported Terror Suspect Details Torture in Syria, Wash.
Post, Nov. 5, 2003, at A1 (quoting a senior U.S. intelligence official:
“The temptation is to have these folks in other hands because they have
different standards”).
[42]. See Priest & Gellman,
supra note 15
(“American teams, officials said, do no more than assist in the transfer
of suspects who are wanted on criminal charges by friendly countries.”).
But see John Crewdson et al., Italy Charges CIA Agents, Chi.
Trib., June 25, 2005, at 1 (“‘There are arrests, and then there are
arrests,’ a senior American intelligence official said with a laugh . . .
.”); Priest & Gellman, supra note 15 (“[F]ive officials
acknowledged, as one of them put it, ‘that sometimes a friendly country
can be invited to “want” someone we grab.’ Then, other
officials said, the foreign government will charge him with a crime of some
sort.”).
[43]. See Peter Finn, Tajik Defendant
Details Abduction by Russian Police, Wash. Post, Aug. 11, 2005, at
A18.
[44]. See Craig Whitlock, New Swedish
Documents Illuminate CIA Action, Wash. Post, May 21, 2005, at A1.
[45]. The U.S. government admits to the
practice. See R. Jeffrey Smith, Gonzales Defends Transfer of
Detainees, Wash. Post, Mar. 8, 2005, at A3.
[46]. See Dana Priest & Joe
Stephens, Secret World of U.S. Interrogation, Wash. Post, May 11, 2004,
at A1.
[47]. See Dana Priest, Man Was
Deported After Syrian Assurances, Wash. Post, Nov. 20, 2003, at A24.
[48]. See supra notes 1–5 and accompanying text.
[49]. See Human Rights Watch, In the
Name of Counter-Terrorism: Human Rights Abuses Worldwide 14 (2003), http://www.hrw.org/un/chr59/counter-terrorism-bck.pdf.
[50]. See Chandrasekaran & Finn,
supra note 13.
[51]. See supra notes 6–9 and accompanying text.
[52]. See Crewdson et al., supra
note 42.
[53]. See Stephen Grey,
America’s Gulag, New Statesman, May 17, 2004.
[54]. See Wilkinson & Drogin,
supra note 12.
[55]. See Stephen Grey & Andrew
Buncombe, How Britain Helps the CIA Run Secret Torture Flights, Indep.
(London), Feb. 10, 2005, at 8.
[56]. See supra notes 6–9 and accompanying text.
[57]. See Chandrasekaran & Finn,
supra note 13.
[58]. See Priest & Gellman,
supra note 15.
[59]. See Don Van Natta, Jr.,
Questioning Terror Suspects in a Dark and Surreal World, N.Y. Times, Mar.
9, 2003, at 1.
[60]. See Priest & Gellman,
supra note 15.
[61]. See Peter Finn, Al Qaeda
Recruiter Reportedly Tortured, Wash. Post, Jan. 31, 2003, at A14.
[62]. See Stephen Grey, U.S. Accused
of “Torture Flights,” Sunday Times (London), Nov. 14,
2004, at 24.
[63]. See generally U.S. Dep’t
State, Country Reports on Human Rights Practices for 2004 (2005), http://www.state.gov/g/drl/rls/hrrpt/2004
(noting that receiving countries’ use of torture is
“systematic” [Egypt, Morocco, Saudi Arabia, and Uzbekistan], or
“a common occurrence” [Syria]).
[64]. See Whitlock, supra note 10.
[65]. See, e.g., Finn, supra note
43 (quoting a Russian human rights
worker as saying, “The West cannot complain [about Russia’s reported
use of extraordinary rendition], and if they do, our leadership can say,
‘Look at you, you do the same thing’”).
[66]. Universal Declaration of Human Rights,
G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec.
12, 1948) [hereinafter Universal Declaration].
[67]. International Covenant on Civil and
Political Rights, entered into force Mar. 23, 1976, S. Exec. Doc. E,
95-2, 999 U.N.T.S. 171 [hereinafter ICCPR].
[68]. International Covenant on Economic,
Social and Cultural Rights, entered into force Jan. 3, 1976, 993 U.N.T.S.
3.
[69]. Convention Relating to the Status of
Refugees, entered into force Apr. 22, 1954, 19 U.S.T. 6223, 189 U.N.T.S.
150 [hereinafter Refugee Convention]; Protocol Relating to the Status of
Refugees, entered into force Oct. 4, 1967, 19 U.S.T. 6223, 606 U.N.T.S.
267 [hereinafter Refugee Protocol].
[70]. Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature
Feb. 4, 1985, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 [hereinafter
Convention against Torture].
[71]. Vienna Convention on Consular Relations,
Apr. 24, 1963, art. 36, 21 U.S.T. 77, 100-1, 596 U.N.T.S. 261, 292 [hereinafter
Vienna Consular Convention].
[72]. Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field,
adopted Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter First
Geneva Convention]; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted
Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Second Geneva
Convention]; Geneva Convention Relative to the Treatment of Prisoners of War,
adopted Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter POW
Convention]; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Civilian
Convention].
[73]. See Hurst Hannum, The Status of
the Universal Declaration of Human Rights in National and International Law,
25 Ga. J. Int’l & Comp. L. 287, 352–53 (1996) (“The most
important multilateral treaty in the field of human rights is perhaps the U.N.
Charter . . . . Legally and politically, it is the Universal Declaration of
Human Rights which defines the Charter’s human rights
provisions.”).
[74]. See id. at 289.
[75]. See U.N. Econ. & Soc. Council
[ECOSOC], Comm. on Human Rights, Preliminary Report by the Special
Representative of the Commission, Mr. Andrés Aguilar, Appointed Pursuant
to Resolution 1984/54, on the Human Rights Situation in the Islamic Republic of
Iran, ¶¶ 14–15, U.N. Doc. E/CN.4/1985/20 (Feb. 1,
1985).
[76]. See Hannum, supra note 73, at 292–310.
[77]. See id. at 312–17.
[78]. Universal Declaration, supra note
66, art. 3.
[79]. See id. art. 5; infra notes
175–207 and accompanying text.
[80]. See Universal Declaration,
supra note 66, at pmbl.
Because extraordinary rendition involves the forcible removal of individuals
from the jurisdiction to which they belong, the practice also violates the
provision of Article 2 that provides that “no distinction shall be made on
the basis of the . . . jurisdictional . . . status of the country or territory
to which a person belongs.” See id. art. 2.
[81]. See U.S. Dep’t State,
supra note 63 (“The
[Egyptian] security forces continued to mistreat and torture prisoners . . . .
[T]orture and abuse of detainees by police, security personnel, and prison
guards remained common and persistent.”).
[82]. See Chandrasekaran & Finn,
supra note 13 (noting that
extraordinary rendition “bypass[es] extradition procedures and legal
formalities”).
[83]. See, e.g., Shannon McCaffrey,
supra note 16 (reporting
that “most of the detainees are never heard from again”).
[84]. See Universal Declaration,
supra note 66, art. 6.
[85]. See id. art. 8.
[86]. See Jehl & Johnston, supra
note 17 (observing that
criminal charges are not required for extraordinary rendition); Priest &
Gellman, supra note 15.
[87]. See Universal Declaration,
supra note 66, art. 9.
[88]. See id. art. 10 (“Everyone
is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him.”); id. art. 11(1) (“Everyone
charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”); cf. Boudellaa v. Bosnia and
Herzegovina, Decision on Admissibility and Merits, Case No. CH/02/8679, Human
Rights Chamber for Bosnia and Herzegovina, Oct. 11, 2002, at 69 (holding that
extraordinary rendition violated the right to be presumed innocent under Article
6(2) of the European Convention on Human Rights).
[89]. See Helen Thomas, “Ghost
Detainees” Should Haunt CIA, Seattle Post-Intelligencer, May 5, 2005,
at B6 (quoting President Bush defending the program by stating that it is in
“our country’s interest to find people who would do harm to us and
get them out of harm’s way”).
[90]. For example, in at least two cases of
extraordinary rendition, authorities did not notify the detainees’
attorneys of government transfer until after the rendition took place.
See Complaint ¶ 60, at 18 Arar v. Ashcroft, C.A. No.
04-CV-249-DGT-VVP (E.D.N.Y. 2004) [hereinafter Arar Complaint]; Craig Whitlock,
A Secret Deportation of Terror Suspects, Wash. Post, July 25, 2004, at
A1.
[91]. See Zagaris, supra note 10; CBS News, supra note
10.
[92]. See Universal Declaration,
supra note 66, art.
13.
[93]. See id. art. 14.
[94]. Reports demonstrate that many receiving
countries are more likely to inflict torture and other forms of ill-treatment on
people suspected of participation in terrorism, extremism, or other political
activities. See U.S. Dep’t State, supra note 63 (reporting that Egyptian,
Jordanian, Moroccan, Saudi, Syrian, and Uzbek authorities have targeted
political detainees and terror suspects for torture).
[95]. See, e.g., John Crewdson, Italy
Seeks Arrests of Six More CIA Operatives, Chi. Trib., July 21, 2005, at 3
(reporting that Abu Omar had been granted asylum in Italy prior to his abduction
and reported extraordinary rendition by CIA agents); Whitlock, supra note
90 (noting that Egyptian nationals
Ahmed Agiza and Muhammad Zery had applied for political asylum in Sweden prior
to their extraordinary rendition).
[96]. See Universal Declaration,
supra note 66, art.
16.
[97]. See id. art. 17; cf. Haya
de la Torre (Colom. v. Peru), 1951 ICJ Rep. 71, 83 (June 13) (holding that the
International Court of Justice lacked authority to instruct Colombia in
complying with the court’s determination that its grant of asylum was not
valid and that Colombia was not obligated to hand Haya de la Torre over to
Peruvian authorities).
[98]. See Universal Declaration,
supra note 66, arts.
18–19.
[99]. See id. art. 28.
[100]. See id. at pmbl.
[101]. See ICCPR, supra note 67. There are 154 States Parties to
the ICCPR. Of the countries mentioned above for their involvement in
extraordinary rendition, only Indonesia, Pakistan, and Saudi Arabia are not
signatories to the ICCPR. See Office of the United Nations High
Comm’r for Human Rights, Status of Ratifications of the Principal Human
Rights Treaties 2–11 (2004), http://www.unhchr.ch/pdf/report.pdf. Much of the following analysis applies with equal force to similar provisions
of the European Convention of Human Rights. See Convention for the
Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222,
entered into force Sept. 3, 1953, as amended by Protocols Nos. 3,
5, 8, and 11 which entered into force on September 21, 1970, December 20,
1971, January 1, 1990, and November 1, 1998 respectively [hereinafter
European Convention]. Because many extraordinary renditions have taken place in
European countries (either as the site of the abduction, a transit point, or a
final detention destination), the European Convention applies to certain cases
of extraordinary rendition. Moreover, the Council of Europe has taken an active
position in investigating allegations of extraordinary rendition among member
states. See Eur. Parl. Ass., Alleged Secret Detentions in Council of
Europe Member States, Information Memorandum II, Comm. On Legal Aff. &
Hum. Rts., Doc. No. AS/Jur(2006)03rev, paras. 12–24, 93–99,
available at http://assembly.coe.int/CommitteeDocs/2006/20060124_Jdoc032006_E.pdf
(describing Rapporteur Dick Marty’s investigation).
[102]. See ICCPR, supra note 67, art. 2(1) (emphasis added).
[103]. See United Nations, Human
Rights Committee, General Comment 31, Nature of the General Legal Obligation on
States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), ¶
10 [hereinafter General Comment 31]:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party . . . . This principle [that enjoyment of the Covenant is not limited by nationality] also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained . . . .
[104]. The Special
Rapporteur on torture stated the obligation under Article 2(1) in broad terms:
“[I]t is the essential responsibility of States . . . to prevent such acts
[of torture and other forms of ill-treatment] by not bringing persons under the
control of other States if there are substantial grounds for believing that they
would be in danger of being subjected to torture.” See Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Report of the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, ¶ 27, delivered to the
General Assembly, U.N. Doc. A/59/324 (Sept. 1, 2004) [hereinafter Special
Rapporteur on Torture].
[105]. See ICCPR, supra note 67, art. 7; cf. European
Convention, supra note 101,
art. 3.
[106]. See Ngoc Si Truong v. Canada,
United Nations, Human Rights Committee, 77th Sess., Comm. No. 743/1997, U.N.
Doc. CCPR/C/77/D743/1997, ¶ 7.5 (Mar. 28, 2003). The U.N. Sub-Commission on
the Promotion and Protection of Human Rights adopted a resolution in 2005
confirming that customary international law prohibits the involuntary transfer
of a person who “faces a real risk of being subjected to torture, cruel,
inhuman or degrading treatment or extrajudicial killing . . . .” Transfer
of Persons, Sub-Commission on the Promotion and Protection of Human Rights,
Commission on Human Rights, U.N. Doc. E/CN.4/Sub.2/2005/L.12, ¶ 3 (Aug. 4,
2005) [hereinafter Transfer of Persons]. This “real risk” standard
is more stringent than the “substantial grounds” standard
articulated in the non-refoulement provision of the Convention against
Torture. See David Weissbrodt & Isabel Hortreiter, The Principle
of Non-Refoulement, 5 Buff. Hum. Rts. L. Rev. 1, 55–56 (1999)
(comparing the two standards).
[107]. See ICCPR, supra note 67, art. 10(1).
[108]. Cf. Agiza v. Sweden, United
Nations, Committee against Torture, 34th Sess., Comm. No. 233/2003, U.N. Doc.
CAT/C/34/D/233/2003, ¶ 13.3 (May 20, 2005) (determining that Agiza’s
treatment during the extraordinary rendition process constituted