Extraordinary rendition and the security paradigm

Author:John A. E. Vervaele
Position:Professor in economic and European criminal law, Utrecht University, The Netherlands; Professor in European criminal law, College of Europe, Bruges, Belgium
Pages:1-18
SUMMARY

This paper deals with a very delicate subject - the extraordinary rendition. The analysis starts from the rendition to justice as a technique by which a suspected person is forcibly abducted in another State, if it is impossible to bring this suspect to stand trial by the normal extradition procedure. In these cases, the forcible abduction can be executed unilaterally by the agents of the forum State or with the cooperation of agents of the State where the person is abducted. The rendition in itself is not a judicial procedure because it lacks a judicial warrant and, in reality, is mostly a highly covert police or military operation, with the risk of infringing upon the State sovereignty of other States (depending on the cooperation with that State). Recently, the rendition to justice practice was applied in a systematic way in dealing with the prosecution of piracy in the Somalia-Gulf of Aden area. Several defendants ended up in criminal trials in European States without any extradition procedure at all. The rendition to justice was widened into a rendition to secure policy and in this way the extraordinary rendition was born. Extraordinary rendition is also a special administrative measure, but one that fundamentally changes the meaning of rendition, as the aim is no longer to adjudicate a person, but to keep him/her in secret detention for interrogation. In this context, the paper observes also the way extraordinaryrendition is reflected in The Inter-American Court of Human Rights jurisprudence and in European Court of Human Rights standards.

 
CONTENT
1
EXTRAORDINARY RENDITION AND THE SECURITY PARADIGM
John A.E. Vervaele*)
Abstract
This paper deals with a very delicate subject – the extraordinary rendition.
The analysis starts from the rendition to justice as a technique by which a
suspected person is forcibly abducted in another State, if it is impossible to bring
this suspect to stand trial by the normal extradition procedure. In these cases, the
forcible abduction can be executed unilaterally by the agents of the forum State or
with the cooperation of agents of the State where the person is abducted. The
rendition in itself is not a judicial procedure because it lacks a judicial warrant
and, in reality, is mostly a highly covert police or military operation, with the risk
of infringing upon the State sovereignty of other States (depending on the
cooperation with that State). Recently, the rendition to justice practice was
applied in a systematic way in dealing with the prosecution of piracy in the
Somalia-Gulf of Aden area. Several defendants ended up in criminal trials in
European States without any extradition procedure at all. The rendition to justice
was widened into a rendition to secure policy and in this way the extraordinary
rendition was born. Extraordinary rendition is also a special administrative
measure, but one that fundamentally changes the meaning of rendition, as the aim
is no longer to adjudicate a person, but to keep him/her in secret detention for
interrogation. In this context, the paper observes also the way extraordinary
rendition is reflected in The Inter-American Court of Human Rights jurisprudence
and in European Court of Human Rights standards.
Keywords: public law; Criminal Law; criminal justice; national security;
extradition; rendition to justice; forcible abduction; extraordinary rendition
1. FROM PREVENTIVE TO SECURITY DETENTION
In the last decades, aims of preventive detention have been enlarged from a
measure of social defence to a measure to protect (national) security, especially in
the field of counter-terrorism, and were further delinked from criminal justice and
trial. Anticipating risk has also become a driving force in criminal justice,
integrating national security into criminal justice1). Security detention has become
*) Professor in economic and European criminal law, Utrecht University, The Netherlands;
Professor in European criminal law, College of Europe, Bruges, Belgium. All websites last
accessed 1 March 2013.
1) Hirsch Ballin, M., Anticipative criminal investigation, Theory and Counterterrorism
Practice in the Netherlands and the United States, T.M.C. Asser Press, The Hague, 2012.
2
a measure of Sicherungsverwahrung [preventive detention]2), of detention of
individuals labelled as a danger for public order, public safety or national security
because of their conduct or even their profile. The change of paradigm has also
affected international cooperation on criminal matters. Traditionally, cooperation
between States or judicial authorities related to the arrest and detention of persons,
with the aim of criminal adjudication or execution of criminal convictions, has
been regulated in and enforced through mutual legal assistance treaties (MLATs)
of a bilateral or multilateral character, especially bilateral and multilateral
extradition treaties3). The MLATs also contained guarantees against arbitrary
extradition, as the request to extradite had to be a judicial one based on reasonable
grounds to suspect a person of an extraditable offence in both the requesting and
requested country (double criminality provision).
Although the MLATs were aimed at exclusivity for the cross-border arrest,
detention and rendition of suspects or convicted persons, some countries have also
put in place policies of rendition, or administrative or executive extradition (without
involvement of the judiciary at all). Rendition to justice can be described as a
technique by which a suspected person is forcibly abducted in another State, if it is
impossible to bring this suspect to stand trial by the normal extradition procedure.
This means that the rendition is only applied when there is an outstanding arrest
warrant for the person and with the aim of criminal adjudication in the abducting
State4). The forcible abduction can be executed unilaterally by the agents of the
forum State or with the cooperation of agents of the State where the person is
abducted. The rendition to justice policy is in the rule based on statutory domestic
law and, to a certain extent, submitted to administrative judicial review in the
courts. Once in the forum country, the abducted person is submitted to ordinary
criminal justice, as any other detainee awaiting trial. Rendition to justice applies to a
judicial process, as the abducted person is abducted for reasons of criminal justice:
to be brought to justice or to execute the criminal conviction. This does not mean
that the rendition in itself is a judicial procedure. It lacks a judicial warrant and, in
reality, is mostly a highly covert police or military operation, with the risk of
infringing upon the State sovereignty of other States (depending on the cooperation
with that State). The abduction of Adolf Eichmann by the Mossad in 1960 in
Argentina for his rendition to justice in Israel was certainly one of the first and most
famous cases. Rendition to justice has been a policy in the US for decades, but goes
2) Nikos Müller, T., Präventive Freiheitsentziehungen als Instrument der Terrorismusbekämpfung,
Duncker & Humblot, Berlin, 2011; Pösl, M., ‘Die Sicherungsverwahrung im Fokus von BVerfG,
EGMR und BGH’, Zeitschrift für das Juristische Studium, Vol. 4, 2011, pp. 132-146.
3) Cherif Bassiouni, M., International Extradition: United States Law & Practice 1, Oxford
University Press, New York, 2007.
4) Nadelmann, E., ‘The evolution of United States Involvement in the International Rendition
of Fugitive Criminals’, New York University Journal of International Law and Policy, Vol. 25,
1993, pp. 813-885, at pp. 857-882.
3
back further in history. It was approved for use against terrorist suspects by Ronald
Reagan in 19865), but, in reality, was also used in case of drugs or arms trafficking.
The abduction of former president, Manuel Noriega, in Panama City by US military
forces to stand trial in the US on drug trafficking charges is the most notorious
example6). In 1993, George HW Bush authorised specific procedures for rendition
in 1993 through National Security Directive 777). Bill Clinton signed in 1988
Presidential Decision Directive 62, giving leeway for several anti-terror programs,
including the one on Apprehension, Extradition, Rendition and Prosecution8).
Although the abduction in foreign sovereignty for the aim of rendition to justice is
illegal under international law, the Supreme Court of the US upheld the
government’s power to prosecute abducted persons irrespective of their legality
under international law and also precluded the application of the US Constitutional
standards to agents of the US acting outside the US territory (the Kerr-
Frisbie/Alvarez-Machain doctrine) 9).
Several European countries, for instance France and Spain, practiced the same
policy as part of their counter-terrorism strategy against persons suspected of being
involved in Basque Homeland and Freedom (ETA) activities. The so-called
‘extradition administrative’ was applied in order to circumvent the cumbersome and
lengthy extradition proceedings and also to circumvent the guarantees of the MLAT’s
provisions on extradition. It was executed under the scheme of informal police
cooperation, without any statutory frame. In practice, the police authorities and
intelligence officers surrendered the concerned person at the State borders to the foreign
authorities. There was, however, one substantial difference with the prescribed
rendition to justice policy of the US. In the European countries, the administrative
extradition was the result of bilateral cooperation between the police and intelligence
authorities of the States. In the US, however, the rendition to justice was the result of a
unilateral and extra-territorial abduction by US officials in foreign territory.
Recently, the rendition to justice practice was applied in a systematic way in
dealing with the prosecution of piracy in the Somalia-Gulf of Aden area. Several
defendants ended up in criminal trials in European States without any extradition
procedure at all10).
5) Cameron Findlay, D., ‘Abducting Terrorist Overseas for Trial in the United States: Issues of
International and Domestic Law’, Texas International Law Journal, Vol. 23, No. 1, 1998, pp. 1-54.
6) United States vs Noriega, 746 f. supp. 1506, 1511 (S.D.Fla.1990).
7) Is listed as a classified document.
8) Is listed as a classified document.
9) Frisbie vs Collins, 342 U.S. 519 (1952), Ker vs Illinois, 119 U.S. 436 (1886) and United
States vs Alvarez-Machain, 504 U.S. 655 (1992). Stark, R., ‘The Ker-Frisbie-Alvarez Doctrine:
International Law, Due Process, and United States Sponsored Kidnapping of Foreign Nationals
Abroad’, Connecticut Journal of International Law, Vol. 9, No. 1, 1993, pp. 113-163, at p. 161.
10) Geiss, R. and Petrig, A., Piracy and Armed Robbery at Sea – The Legal Framework for Counter-
Piracy Operations in Somalia and the Gulf of Aden, Oxford University Press, Oxford, 2011, p. 344.
4
Precisely under the Clinton presidency, the procedures for rendition to justice
were changed. Several persons were captured and abducted by the US military in
the mid-1990s in Bosnia and Albania and transferred to Egypt. The first known
case of such a rendition was the case of Tal`at Fu’ad Qassim, abducted in Bosnia,
transferred to a US navy ship for interrogation and transferred to Egypt for further
detention and interrogation. Qassim was reportedly executed while in Egyptian
custody11). Rendition for justice was converted under the Clinton administration to
rendition for interrogation and intelligence gathering in security detention. Former
CIA Director George Tenet estimated that the Agency had abducted more than 80
persons before September 11 201112).
This means that the Clinton administration transformed the rendition to justice
policy, being a criminal law enforcement technique, into a preventive goal. The
rendition to justice was widened into a rendition to secure policy. The
extraordinary rendition was born13). The CIA, in cooperation with the Department
of Defence and the FBI, became responsible for a counter-terrorist programme by
which State (sponsored) abduction of persons in foreign countries occurred. These
persons were abducted by US agents, with or without the cooperation of the
government of that country and were subsequently transferred to another country
for detention and interrogation. Despite articles in the Washington Post in 2002 on
the practice of outsourcing interrogations of terrorists, it was only in 2006, in the
aftermath of the Supreme Court ruling on Hamdan vs Rumsfeld, that the existence
of the extraordinary rendition programme was confirmed by George W Bush. He
called it a separate programme operated by the CIA to detain and interrogate
individuals who were suspected of being the key architects of the September 11
attacks; attacks on the USS Cole; and bombings of US embassies in Kenya and
Tanzania, as well as individuals involved in other attacks that have taken the lives
of innocent civilians across the world. He admitted publicly what had been
suspected for some time, being that the US government administrates a global
programme on secret detention of enemy combatants. A Presidential Directive,
signed on September 17 2001, created the legal authority for the CIA to execute
the extraordinary rendition programme14). After the Supreme Court ruling on
11) Human Rights Watch, ‘Black Hole: The Fate of Islamist rendered to Egypt’, 10 May 2005,
E1705.
12) Statement at Panel One, Day Two of the Public Hearing of the National Commission on
Terrorist Attacks Upon the United States.
13) Satterthwaite, M., ‘Rendered Meaningless: Extraordinary Rendition and the Rule of Law’,
The George Washington Law Review, Vol. 75, Nos. 5-6, 2007, pp. 1333-1420, at p. 1372;
Johnson, R., ‘Extraordinary rendition: a wrong without a right?’, Richmond Law Review, Vol. 43,
No. 3, 2009, pp. 1135-1174, at p. 1136.
14) For official sources, see: ‘U.S. Policy on Counterterrorism’, available at:
www.fas.org/irp/offdocs/pdd39.htm; ‘Protection Against Unconventional Threats to the Homeland
and Americans Overseas’, available at: www.fas.org/irp/offdocs/pdd-62.htm; ‘Extraordinary
5
Hamdan vs Rumsfeld, Congress passed in 2006 the Military Commission Act,
providing a legal basis for detaining, interrogating and trying ‘unlawful enemy
combatants’. The Bush administration presented the Military Commission Act as a
sufficient legal basis for the extraordinary rendition programme, although specific
clauses in the Act are lacking and it is not certain that all abducted persons are
formally labelled as ‘unlawful enemy combatants’. The Obama administration
promised to scrutinise the practice of extraordinary rendition, but did not bring it
to an end and did not formalise it as a covert policing of enemy combatants either.
Although rendition to justice and extraordinary rendition are both special
administrative measures (SAMs) that deviate from the judicial extradition
procedure, putting ‘extraordinary’ in front of rendition changed the meaning
fundamentally. A process formerly bound by statutory and treaty law and
reinforced by certain procedural safeguards in court had now entered the realm of
discretionary executive policy. In the US, the executive labelled extraordinary
rendition as transfer of enemy combatants, by which the president was considered
free from ex ante constitutional and domestic law constraints on his ability to
transfer detainees held outside the US to the custody of foreign nations15).
2. EXTRAORDINARY RENDITION: CASES AND FIGURES
The practice of extraordinary rendition was widely unknown until 2005-2006.
Thanks to formal investigations, informal inquiries (both by the press and by
NGOs) and the political oversight in Europe16), the scope and magnitude of the
extraordinary rendition programme has become clear. The exact number of cases
is unclear, as sources go from several hundreds to several thousands. The cases in
which European States have been involved are widely documented, but the cases
in the Asian region are rarely unveiled.
To visualise the practice of the extraordinary rendition scheme, I would like to
mention here two emblematic cases, in which European countries have been
involved. The first case is the one of Hassan Mustafa Osama Nasr, also called
Abu Omar. Abu Omar, a Muslim of Egyptian descent was an imam in Milan,
suspected of radicalising the Muslim community. He was abducted in 2003 by a
joint operation between CIA agents and Italian intelligence agents and transferred
to Egypt via a military airport in Germany. In Egypt, he was held in secret
detention for two months and under house arrest for near to four years and
rendition in U.S. counterterrorism policy: the impact on transatlantic relations, available at:
foreignaffairs.house.gov/110/34712.pdf; the substantive content remains classified.
15) For an in-depth analysis, see Yoo, J., ‘Transferring Terrorists’, Notre Dame Law Review,
Vol. 79, 2003, pp. 1183-1235, at p. 1184.
16) See: ‘The Fava Inquiry of the European Parliament’, available at: www.europarl.europa.eu;
‘The Dick Marty Report of the Council of Europe’, available at: assembly.coe.int/main.asp; ‘Secret
detentions and illegal transfers of detainees involving Council of Europe member states: second
report’, available at: assembly.coe.int.
6
submitted to interrogations, part of which is suspected to have been torture. After
four years of detention, he was released. No arrest warrant, charge or habeas
corpus procedure had ever been in place. The perpetrators of the abduction in and
from Italian soil have been prosecuted in Italy for several offences. The Milan
judicial authorities came across the identity of the perpetrators during an in-depth
judicial inquiry, arrested the Italian intelligence officers and asked for the
extradition of the CIA agents. The request for extradition was never sent by the
Italian executive (both the Prodi government and the Berlusconi government) to
the US. The Berlusconi government used the public interest immunity of State
secrecy in order to avoid the use of evidence obtained at the intelligence
authorities’ premises17). The Italian Constitutional Court approved the use of the
executive privilege, which excluded a substantial part of the evidence from the
trial setting. In November 2009, the Italian court convicted 22 CIA agents, an Air
Force pilot and two Italian secret agents of criminal liability for the extraordinary
rendition of Abu Omar on Italian soil and imposed prison sentences of up to eight
years on the leaders of the operations. However, some of the charged persons
were not convicted because of diplomatic immunities. The Italian criminal trial
and convictions have been the first convictions, and thus far the only ones, against
people involved in the CIA’s extraordinary rendition program. In September
2012, the Italian Supreme Court upheld the extraordinary rendition convictions
for the 22 CIA agents, the Air Force pilot and the Italian secret agents, but has
also ordered that the Italian secret agents who had previously been acquitted on
State secrecy immunities should be retried in the Milan Court of Appeal.
The second case is the Al-Masri one. Khaled El-Masri is a German citizen. He
was born in Kuwait and is a Muslim of Lebanese descent. He moved to Germany
in 1985. In 2003, he travelled to Skopje in Macedonia for a brief holiday. At the
Macedonian border, he was detained by local intelligence authorities, interrogated
for several hours and then driven to a hotel in Skopje where he was detained for
23 days under armed guard, without an arrest warrant, access to a lawyer, charge
and so on. He was continuously interrogated. There had also been information
exchanged between the local authorities in Macedonia and the German municipal
and police authorities during the interrogation. After the detention, he was
transferred to Skopje Airport in Macedonia and handed to a CIA rendition team.
The plane flew to Afghanistan and he was kept in secret detention for another four
months, until the authorities found out that he probably was the wrong person (he
had a similar name to that of a man connected to a ‘Hamburg cell’ of Al-Qaeda).
In order to cover up the mistake, he was flown back to Albania in a ‘reverse
extraordinary rendition’. In Macedonia, administrative and criminal investigations
were opened, but did not progress and had to be closed due to the statutory time
17) See: Illuminati, G. (ed.), Nuovi Profili del segreto di stato e dell’attività di intelligence, G.
Giappichelli Editore, Torino, 2010.
7
limit expiring. .In 2004, a German Prosecuting Magistrate in Munich opened an
investigation into allegations that El-Masri had been unlawfully abducted,
detained, psychically and psychologically abused, and interrogated in Macedonia
and Afghanistan. In 2005, letters rogatory were sent out to Macedonia and, in
2007, international arrest warrants against 13 suspected CIA agents and/or
personnel were issued. The Macedonian authorities refused to cooperate and the
German executive authorities refused to send out the extradition requests to the
US. During civil proceedings in the US, under the Alien Tort Statute, El-Masri
was confronted with the use of State secrets privilege by the US administration.
Both the District Court and the Court of Appeals for the Fourth Circuit decided
that the case could not be set forth without revealing State secrets. The Supreme
Court was not willing to review the case. The American Civil Liberties Union
filed a petition with the Inter-American Commission of Human Rights
(IAComHR) in 2008. A Soros Foundation filed in 2009 a petition with the ECtHR
versus Macedonia. The former procedure is lis pendens and still awaiting the
formal opinion of the US. In the latter, the Grand Chamber of the ECtHR gave its
judgment on 13 December 201218). The role of European States and agents, or
officials of European States in the extraordinary rendition programme can take
several forms. It goes from abduction of the persons (at the demand of the US) to
direct participation in the abduction and transfer, establishment and use of secret
detention facilities, or certain types of facilitation of the program (through
exchange of intelligence information, facilitating secret CIA flights and so on).
This is how several European States have orchestrated, cooperated or facilitated
the extraordinary rendition program. The extent to which European States have
been involved in the extraordinary rendition programme has become in the last
decade a very sensitive political topic.
3. EXTRAORDINARY RENDITION UNDER THE INTER-AMERICAN
COURT OF HUMAN RIGHTS (IACTHR) AND ECTHR STANDARDS
Both rendition to justice and extraordinary rendition are non-existing legal
terms under international law. When it comes to an assessment of the practice of
extraordinary rendition under international human rights law, we have to face a
hybrid set of possible human rights violations, such as arbitrary arrest and
detention, enforced disappearance, forcible transfer, torture, denial of access to
consular offices, and denial of access to independent and impartial
tribunals/habeas corpus. In this contribution, I would like to focus on the secret
detention as a method and aim of the extraordinary rendition program and tackle
the question of if and to what extent both international human rights law
instruments accept a specific category of security detention, especially in the field
of counter-terrorism. A question related to it is whether international human rights
18) See section 4, infra.
8
law applies specific standards to extradition or rendition to justice or
extraordinary rendition (SAMs) in that respect.
3.1. SECURITY DETENTION AND THE CASE LAW OF THE IACOMHR AND THE
IACTHR
The case law does not declare security detention as such a breach of the
Convention, especially of Article 7 of the American Convention on Human Rights
(ACHR) on personal liberty. Security detention is treated as any detention. It is only
in line with the ACHR if it is not arbitrary and is based on grounds previously
established by law. This includes ensuring against arbitrary arrest and detention by
strictly regulating the grounds and procedures for arrest and detention under law. It
also includes ensuring prompt and effective judicial oversight. To avoid risks of this
nature, the Commission has suggested that a delay of more than two or three days in
bringing a detainee before a judicial authority will generally not be considered
reasonable19). The Commission has, however, recognised that the deprivation of an
individual’s liberty may also be justified in connection with the administration of
State authority beyond the investigation and punishment of crimes where measures
of this nature are strictly necessary. Nevertheless, the Commission has emphasised
that any such detention must in all circumstances comply with the requirements of
pre-existing domestic and international law, including the requirement that the
detention be based on the grounds and procedures clearly set forth in the
constitution or other law and that it be demonstrably necessary, fair and non-
arbitrary. Detention in such circumstances must also be subject to supervisory
judicial control without delay and, in instances when the State has justified
continuing detention, at reasonable intervals20).
The Court has strictly reviewed detention cases on legality and arbitrariness.
In the case Gangaram-Panday vs Suriname21), the Court came to the conclusion
that Surinam had violated the Convention because of illegal detention. Gangaram-
Panday was arrested by the military police in the airport of Paramaribo in
Suriname, coming from Amsterdam under a deportation procedure. He was
detained for three days in military confinement, without judicial control and was
declared to have committed suicide. The IACtHR moreover concluded that while
the right to personal liberty and security is derogable, the right to resort to a
competent court under Article 7(6), which by its nature is necessary to protect
non-derogable rights during criminal or administrative detention, such as the right
to humane treatment, may not be the subject of derogation in the Inter-American
system. The Commission has held that there are other related components of the
right to liberty that can never be denied. These include the requirement that the
19) See, for example: IACommHR, McKenzie et al. (Jamaica), 13 April 2000 (Case 12.023).
20) ‘The Right to Life and Terrorism’, available at: www.cidh.oas.org/Terrorism/Eng/part.d.htm;
see also: IACommHR, Ferrer Mazorra et al. (United States), 4 April 2001 (Case 9903).
21) IACtHR, Gangaram-Panday v. Suriname, 21 January 1994 (Series C, No. 16).
9
grounds and procedures for the detention be prescribed by law; the right to be
informed of the reasons for the detention; as well as certain guarantees against
prolonged incommunicado or indefinite detention, including access to legal
counsel, family and medical assistance following arrest.
3.2. SECURITY DETENTION AND THE CASE LAW OF THE ECTHR22)
The ECtHR has a much more protective application of the right to liberty. The
Court has continuously underlined the fundamental importance of the guarantees
contained in Article 5 for securing the right of individuals in a democracy to be
free from arbitrary detention at the hands of the authorities. For that reason, the
Court applies a lawfulness test and a test of arbitrariness. The Court prohibits
security detention under Article 5 of the ECHR, as no general power of preventive
detention can be found in Article 5(1)(b)23). This means that Article 5(1)(c) does
not authorise ‘a policy of general prevention directed against an individual or a
category of individuals who, like mafiosi, present a danger on account of their
continuing propensity to crime’24). Article 5 (1)(c) can only be used in the context
of security detention related to crime prosecution. In that case, the right of habeas
corpus in Article 5(4) does apply, which means prompt review by an independent
and impartial tribunal established by law is required. This remedy is available
irrespective of the basis for detention. The procedural guarantees and scope of
review, however, differ according to the type of liberty at stake. ‘Speedily’ is
more lenient than ‘promptly’, but it is clear from the case law of the Court (Al-
Nashif vs Bulgaria, Öcalan vs Turkey and Salik vs Turkey) that there must be an
effective remedy within one week at least. In Brogan, the Court acknowledged the
relevance of these considerations in the pursuit of terrorist crime, but found that
all judicially unauthorised detentions in excess of four days did not satisfy the
‘promptness’ criterion. In standing case law, the Court has rejected on a
systematic basis incommunicado or unacknowledged detention in the complete
absence of safeguards contained in Article 5 and labelled them as most grave
violations of the right to liberty and to security (Kurt vs Turkey25) Çakici vs
Turkey26) and Luluyev and others vs Russia27)).
22) For a more in-depth analysis, see: Sottiaux, S., Terrorism and the limitations of Right:The
ECHR and the US Constitution, Hart Publishing, Oxford, 2008.
23) ECtHR, Lawless v. Ireland, 14 November 1960 (Appl. no. 332/57), at para. 14.
24) ECtHR, Guzzardi vs Italy, 6 November 1980 (Appl. no. 7367/76), at para. 102.
25) ECtHR, Kurt v. Turkey, 25 May 1998 (Appl. no. 24276/94).
26) ECtHR, Çakici v. Turkey, 8 July 1999 (Appl. no. 23657/94).
27) ECtHR, Luluyev and others v. Russia, 9 November 2006 (Appl. no. 69480/01).
10
4. INTERNATIONAL HUMAN RIGHTS LAW STANDARDS AND
EXTRAORDINARY RENDITION
4.1. IACTHR
In 2006, the Court ruled on a landmark case on transnational abduction and
forced disappearance in which it was confronted with joint State responsibility. In
the case of Goiburú et al. vs Paraguay28), the Court had to assess the practice of
the ‘Operación Condor’, being a joint criminal enterprise of abduction, detention,
torture and forced disappearance by military and intelligence officers of Chile,
Argentina, Bolivia, Paraguay and Uruguay, under their respective military
dictatorships. The aim of the joint enterprise was to combat subversive activities
by exchange of information, abduction, preventive detention, targeted killing and
so on. At stake in the complaint against Paraguay was the systematic practice of
arbitrary detention, torture, extra-judicial execution and disappearances
perpetrated by the intelligence and security forces under the dictatorship of
Alfredo Stroessner, under ‘Operación Condor’. In paragraph 66, the Court
qualifies the responsibility of the State of Paraguay as a clear situation of ‘State
terrorism’, as it has been verified that the State’s power was orchestrated as a
means and resource to violate rights that should have been respected and
safeguarded, and actions were implemented using the inter-State collaboration29).
In other words, the State became the principal factor in the grave crimes
committed. Furthermore, the Court declared that the prohibition of forced
disappearance, perpetrated with the collaboration of authorities of other States of
the continent, and the corresponding obligation to investigate and punish, have
attained the status of jus cogens and are thus non-derogable provisions of
international law30), establishing a broad scope of international obligations erga
omnes31). The Court was not only looking at the human rights violations of rights
and liberties, but also at the violations of positive duties to investigate, prosecute
and punish, including obligations derived from international law on extradition in
cases of grave human rights violations. The Court made a direct nexus between
the erga omnes obligations and the positive duty. The full exercise of justice
imposed on Paraguay was the compulsory obligation to have requested the
extradition of the accused promptly and with due diligence. The inexistence of
extradition treaties does not constitute a motive or justification for failing to
institute a request of this type32).
In a separate opinion, Judge Antônio Cançado Trindade underlined that States
perpetrated State crimes in a transborder or inter-State scale and by doing so
committed grave violations of peremptory international law (jus cogens) and
28) IACtHR, Goiburú et al. v. Paraguay, 22 September 2006 (Series C, No. 153).
29) Ibidem at para. 66.
30) Ibidem at para. 84.
31) Ibidem at para. 129.
32) Ibidem at para. 130.
11
serious human rights violations. In these types of cases, both the international
responsibility of the State and the international criminal responsibility of the
individual (perpetrator of the atrocities) are at stake33). He concluded his opinion
with a parallel between these inter-State practices of abductions and forced
disappearances in Latin America and the international extraordinary rendition
program of the US.
4.2. ECTHR
Although the Court has traditionally declined to consider extradition or
deportation as part of civil obligations or as a criminal charge under Article 6 of
the ECHR, and thus has declined to apply the fairness of proceedings test34), it has
dealt in a couple of cases with the situation of circumvention of extradition by
abduction and transfer under Article 5(1) of the ECHR. Already in 1987, the
Court had to deal with rendition in relation to extradition in the case Bozano vs
France35). Lorenzo Bozano, an Italian citizen, was sentenced in absentia. The
Italian authorities did ask France to extradite Bozano, but the request was refused
by a court decision, because of the in absentia sentencing, considered to be
incompatible with French public order. Afterwards, he was deported by French
police to Switzerland, based upon a French executive deportation order (danger
for public order) and subsequently extradited from Switzerland to Italy. The
ECtHR examined the lawfulness of the detention, which implies the absence of
arbitrariness. The facts that Bozano was unable to use remedies against the
deportation order and could not contact family or a lawyer contributed to the
conclusion of the Court: the deprivation of liberty by France was neither lawful,
within the meaning of Article 5(1), nor compatible with the right to security of the
person. Depriving Bozano of his liberty in this way amounted in fact to a
disguised form of extradition designed to circumvent the negative decision on the
extradition request36).
In the case Iskandarov vs Russia37), the Court was faced with the abduction of
Mukhamadruzi Iskandarov, after an extradition request by the Tajik authorities
had been dismissed by the Russian Prosecutor General’s Office. The abduction in
33) See also: Cançado Trindade, A.A., ‘Complementarity between State Responsibility and
Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited’,
in: Ragazzi, M. (ed.), International Responsibility Today – Essays in Memory of O. Schachter,
Martinus Nijhoff Publishers, Leiden, 2005, pp. 253-269.
34) In ECtHR, Mamatkulov and Askarov v. Turkey, 4 February 2005 (Appl. no. 46827/99), in
the context of complaints about the fairness of Turkish extradition proceedings, the ECTHR
reiterated, at para 82, that ‘decisions regarding the entry, stay and deportation of aliens do not
concern the determination of an applicant's civil rights or obligations or of a criminal charge
against him, within the meaning of Article 6(1) of the Convention’.
35) ECtHR, Bozano v. France, 2 December 1987 (Appl. no. 9990/82).
36) Ibidem at para. 60.
37) ECtHR , Iskandarov v. Russia, 23 September 2010 (Appl. no. 17185/05).
12
Moscow and his transfer to Tajikistan was committed by Tajik and Russian
agents. The Court underlined that the detention must not only be legal (in
conformity with national law), but also compatible with the notion of non-
arbitrariness. The notion has been assessed by the Court on a case-by-case basis,
but it is clear that bad faith, deception or lack of judicial authorisation for a long
time without grounds for doing so are clearly arbitrary to the Court. In the case of
Iskandarov, the Court considered that it was deeply regrettable that such opaque
methods were employed by State agents and that the deprivation of liberty was in
pursuance of an unlawful removal designed to circumvent the dismissal of the
extradition request and thus the detention was not necessary in the ordinary course
of action taken with a view to deportation or extradition.
On 2 October 2012, the Court delivered its judgment in a Russian extradition-
extraordinary rendition case: Abdulkhakov vs Russia. The case concerned the
kidnapping in Moscow and transfer to Tajikistan of an Uzbek refugee. The
Russian judicial authorities, including the Supreme Court, agreed to the
extradition request by Uzbekistan. The extradition order was not, however,
enforced, as a result of an indication by the ECtHR of an interim measure under
Rule 39 of the Rules of the Court. Several weeks later, the refugee was secretly
abducted and transferred to Tajikistan, where he was put into custody with a view
to his extradition to Uzbekistan. The Court concluded that the right to individual
petition had been violated, since the illegal transfer in effect frustrated the purpose
of an interim measure imposed on Russia earlier not to transfer him. In addition,
the Court also found a violation of Article 3 of the ECHR, since the lack of any
assessment by Russia of whether the applicant would face a real risk of torture in
Tajikistan, all the more so since the transfer was conducted secretly and outside
any legal framework which could have provided safeguards38). The Court also
reiterated the following on renditions:
[A]ny extra-judicial transfer or extraordinary rendition, by its deliberate
circumvention of due process, is an absolute negation of the rule of law and the
values protected by the Convention. It therefore amounts to a violation of the most
basic rights guaranteed by the Convention39).
The Court has not only dealt with cases of extradition and deportation from
the point of view of Article 5(1) of the ECHR, but it has also generated interesting
case law on extradition and deportation in relation to Article 3 of the ECHR. In a
lot of transnational cases, security detention goes hand in hand with the risk of
38) See A. Buyse, ‘Extraordinary rendition, forced labour, and evidence obtained by torture’,
available at: ukhumanrightsblog.com/2012/10/16/extraordinary-rendition-forced-labour-and-
evidence-obtained-by-torture-antoine-buyse/.
39) ECtHR , Iskandarov v. Russia, 23 September 2010 (Appl. no. 17185/05), at para. 156.
13
violating Article 3 of the ECHR. In the case of Soering v the UK40), it established
the principle that a State would be in violation of its obligations under the ECHR
if it extradited an individual to a State, in this case the US, where that individual
was likely to suffer inhuman or degrading treatment, or torture. In such a case,
there would be a situation of a flagrant denial of justice41). Obiter dicta in that
case extended this principle to cover the possibility of a serious and flagrant
breach of fair trial rights under Article 6 of the ECHR. These principles bind each
and every signatory to the ECHR and must apply to extradition between
signatories to the Convention to the same extent as they apply to extradition from
a signatory State to a third State.
The duty of non-refoulement, being the duty on States not to return a person
to another State where there is a serious risk she/he will be subjected to serious ill-
treatment, has been extended by the Court to other areas, such as refugee law and
migration law. The most significant authority confirming the application of the
Soering principle to deportation cases is Chahal vs UK. In that case, the ECtHR
found that there was sufficient evidence of a real risk of ill-treatment and
underlined that to return a person in these circumstances would be a breach of
Article 3. The application of Article 3 is absolute. It contains no exceptions within
it, nor can it be derogated from in time of national emergency under Article 15.
The Court’s own case law has shown that, in practice, there may be little
difference between extradition and other removals. Second, in an extra-territorial
context, it makes no sense to make a distinction between torture and inhuman or
degrading punishment, as, in this context, a prospective assessment is required, in
which it is not always possible to determine whether the treatment will end up as
one or the other. Third in these types of cases, there is no proportionality test. The
only assessment that has to be made is whether the minimum level of severity has
been met for the purposes of Article 3. This can only be assessed independently of
the reasons for removal or extradition.
Very recently, the ECtHR has widened its refoulement doctrine to an Article 6
case, when it delivered its judgment in Othman (Abu Qatada) vs UK, a case
concerning the deportation of a terrorism suspect from the UK to Jordan42). The
applicant, Omar Othman, fled Jordan to the UK in 1993. He alleged that he had
been detained and tortured by the Jordanian authorities and requested asylum.
Being recognised as a refugee in 1994 and granted temporal leave to remain in the
UK, he applied in 1998 for indefinite leave to remain there. While his application
was still under consideration, in 2002, he was arrested and taken into detention
under the Anti-terrorism, Crime and Security Act of 2001. In 2005, he was served
with a notice of intention to deport. Othman challenged his possible deportation,
40) ECtHR, Soering v. United Kingdom, 7 July 1989 (Appl. no. 14038/88).
41) Ibidem at para. 88.
42) See Smet, S. ‘Othman (Abu Qatada) v. the United Kingdom: Questioning Gäfgen?’, available at:
strasbourgobservers.com/2012/02/08/othman-abu-qatada-v-the-united-kingdom-questioning-gafgen/.
14
alleging that there was a real risk that he would be subjected to torture upon his
return to Jordan, in violation of Article 3 of the ECHR. He also feared that he
would face a retrial for terrorist offences for which he had been convicted in
Jordan in absentia in 1999. He claimed, inter alia, that there was a real risk that
evidence obtained by torture either of him, his co-defendants or other prisoners
would be admitted against him during the retrial, in violation of Article 6 of the
ECHR43). The ECtHR ruled that Article 6 of the ECHR would be violated if the
applicant were to be deported to Jordan because there would be a real risk that
evidence obtained through torture of his co-defendants would be used against him
during his retrial. Because the admission of such evidence would make the whole
trial completely unreliable in its outcome, as well as immoral and illegal, the
Court held that it would constitute a flagrant denial of justice. The Court used
striking and clear language to emphasise its findings in Othman. One passage is
particularly notable:
No legal system based upon the rule of law can countenance the admission of
evidence – however reliable – which has been obtained by such a barbaric practice
as torture. The trial process is a cornerstone of the rule of law. Torture evidence
damages irreparably that process; it substitutes force for the rule of law and taints
the reputation of any court that admits it. Torture evidence is excluded to protect
the integrity of the trial process and, ultimately, the rule of law itself44).
As the Court pointed out, this is the first time that it has ever held that an
expulsion would violate Article 6, thereby underlining that the ‘flagrant denial of
justice’ test is a stringent test of unfairness. This wording is presumably included
in the judgment to alleviate any concerns the UK or any other Member State
might have about the reach of the judgment, as well as to counter any criticism the
Court might face in the aftermath of its delivery. In other words, it does not
exclude the possibility that similar considerations might apply in respect to
evidence obtained by other forms of ill-treatment which fall short of torture. The
flagrant denial of justice test has a high threshold, but is applicable to
transnational situations which might prevent the core values of the ECHR from
remaining protected in situations of secret detention.
In its very recent judgment of 13 December 2012, in the case of El-Masri v. The
Former Yugoslav Republic of Macedonia45), the Grand Chamber gave its first
judgment on the extraordinary rendition scheme46). The ECtHR had held the Grand
Chamber hearing on 16 May 2012. The applicant had claimed violations of Article
43) Idem.
44) ECtHR, Soering v. United Kingdom, 7 July 1989 (Appl. no. 14038/88), at para. 264.
45) See Section 2 of this text (supra) for the facts of the case.
46) ECtHR, El-Masri v. The Former Yugoslav Republic of Macedonia (Grand Chamber), 13
December 2012 (Appl. no. 39630/09).
15
3 and Article 5 (abduction and incommunicado detention, transfer to Afghanistan
and secret detention there, torture and disguised reverse rendition to Albania) and of
Article 13 (effective remedy) and lack of an effective (judicial) investigation related
to the positive duty to protect. What in reality has been a transnational organised
abduction and forced disappearance by a coordinated operation of the authorities of
Macedonia, the US, Afghanistan and maybe Germany is assessed under the
Convention in the light of the obligations of Macedonia. The Venice Commission
for the Council of Europe issued a draft opinion in which the obligations of the
territorial States to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt, effective investigation into a substantiated
claim that a person has been taken into custody and has not been seen since are
underlined47). Although the Venice Commission came to the conclusion that the
ECHR does not guarantee a right not be extradited or deported, it also underlines
that, according to the Soering doctrine, a State may be held responsible for a
violation of Articles 2 and 3. In flagrant cases, a State may also be responsible for a
possible violation of Articles 5 and 6 ECHR, if its decision, permission or other
actions have created a real risk of a violation of these rights by the State to which
the prisoner is transferred. It is of no relevance in such cases whether the State on
which territory the violation will or could ultimately take place is also bound by the
ECHR. The Venice Commission concluded that Council of Europe Member States
have infringed several international legal obligations by infringing human rights,
including Article 5, and by not respecting their duty to protect and to secure (duty to
investigate, prosecute and adjudicate).
The ECtHR ruled in full unanimity that Macedonia had violated Article 3
(torture) both from a procedural and substantial view. The detention, abduction
and transfer of El-Masri also amounted to a ‘particularly grave’ violation of
Article 5, a violation of Article 8 and a violation of Article 13 ECHR.
It was the first time that El-Masri obtained justice, since his proceedings in
Macedonia were not taken seriously; his judicial actions in the US were blocked for
lack of jurisdiction or for reasons of state secrecy privilege; and since his complaint
before the American Commission of Human Rights has been pending since 2008.
5. CONCLUSION
5.1. ABDUCTION AND SECURITY DETENTION: NEGATIVE AND POSITIVE
OBLIGATIONS
The analysis of international human rights case law has clearly shown that
security detention related to special administrative measures, deviating from the
ordinary extradition procedures, does not belong to the free realm of the executive
47) European Commission for Democracy Through Law (Venice Commission), Opinion no 363/2005
on the international legal obligations of Council of Europe Member States in respect of secret detention
facilities and inter-state transport of prisoners, http://www.venice.coe.int/webforms/documents/CDL-
AD(2006)009-e.aspx.
16
branch of government. Security detention must be lawful and used in a matter that
does not lead to arbitrariness or abuse of power. Moreover, it must be submitted to
prompt and effective judicial review (habeas corpus). Extraordinary rendition is
also a special administrative measure, but one that fundamentally changes the
meaning of rendition, as the aim is no longer to adjudicate a person, but to keep
him/her in secret detention for interrogation. The States involved in extraordinary
rendition have to apply the requirements of international human rights law,
including those related to security detention. For this reason, the judgment of the
ECtHR in El Masri v. Macedonia and the cases pending before the ECtHR (Al
Nashiri v. Poland and Al Nashiri v. Romania) are of the utmost importance and
will set the standards for the future.
5.2. TRANSNATIONAL DIMENSION OF THE NEGATIVE AND POSITIVE
INTERNATIONAL HUMAN RIGHTS LAW OBLIGATIONS
The extraordinary rendition programme is de facto a programme of
transnational enforced disappearance, but the European human rights law
obligations are, although having universal status and some of them with jus
cogens and erga omnes value, applied within the jurisdiction of a State Party to
the international human rights law Conventions. Within regional political
organisations, such as the EU, transnational standards are put in place. A good
example is Article 19(2) of the EU Charter on Fundamental Rights: ‘No one may
be removed, expelled or extradited to a State where there is a serious risk that he
or she would be subjected to the death penalty, torture or other inhuman or
degrading treatment or punishment’48).
The positive international human rights law obligations and content of the
duty to investigate, prosecute and adjudicate serious breaches of international
human rights law, being serious criminal offences, are still underdeveloped in
relation to the transnational cooperation on criminal matters. Although the UN
adopted in 2006 an International Convention for the Protection of All Persons
from Enforced Disappearance, which entered into force in 2010, this Convention
does not contain specific obligations related to international cooperation on
criminal matters49). A first shy step can be found in the case law of the IACtHR.
The Court qualified the duty to cooperate in bringing the perpetrators to justice as
an erga omnes obligation50).
In light of this international human rights law case law, it is surprising to see
that it has been very difficult to open judicial investigations in European countries
48) European Union, Charter of Fundamental Rights of the European Union, solemnly
proclaimed 7 December 2000, 2000/C 364/01, Art. 19(2).
49) Vermeulen, M.L., Enforced Disappearance: Determining State Responsibility under the
International Convention for the Protection of All Persons from Enforced Disappearance,
Intersentia, Antwerp, 2012.
50) IACtHR, La Cantuta v. Peru, 29 November 2006 (Series C, No. 162). at para. 160.
17
on the practice of extraordinary rendition and that it has been even more difficult to
gather the evidence because of lack of cooperation of executive authorities51) and
cross-border limitations. It is also surprising that in the US, no criminal judicial
investigations at all have been opened, although the government is duty bound to
investigate extraordinary renditions52). As there is a lack of international
enforcement mechanisms, it is high time to generate, both in legislation and in
international human rights law, more specific provisions about the positive duty in
relation to cooperation on criminal matters. Serious obstacles, such as public
interest immunity, State secrecy or personal immunities, should be removed. Locus
standi under domestic proceedings should be guaranteed. It is astonishing to see
how many obstacles can be raised in the US under the Alien Tort Statute, the
Torture Victim’s Protection Act and so on, leading to non-accountability for
violations of established international human rights law standards. State authorities
should be obliged to use the mutual legal assistance (MLA) instruments effectively,
and not to set them aside for political considerations, as happened with the judicial
MLA requests in Italy and Germany in relation to judicial investigations into
extraordinary rendition. Diplomatic relations should not prevail when it comes to
the most serious violations of human rights and human dignity; otherwise, they
exist in a veil of impunity and flagrant denial of justice.
References
Buyse, A., ‘Extraordinary rendition, forced labour, and evidence obtained by torture’,
available at: ukhumanrightsblog.com/2012/10/16/extraordinary-rendition-forced-labour-and-
evidence-obtained-by-torture-antoine-buyse/;
Cameron Findlay, D., ‘Abducting Terrorist Overseas for Trial in the United States: Issues of
International and Domestic Law’, Texas International Law Journal, Vol. 23, No. 1, 1998, pp. 1-54;
Cançado Trindade, A.A., ‘Complementarity between State Responsibility and Individual
Responsibility for Grave Violations of Human Rights: The Crime of State Revisited’, in: Ragazzi,
M. (ed.), InternationalResponsibility Today – Essays in Memory of O. Schachter, Martinus Nijhoff
Publishers, Leiden, 2005, pp. 253-269;
Cherif Bassiouni, M., International Extradition: United States Law & Practice 1, Oxford
University Press, New York, 2007;
Geiss, R. and Petrig, A., Piracy and Armed Robbery at Sea – The Legal Framework for
Counter-Piracy Operations in Somalia and the Gulf of Aden, Oxford University Press, Oxford,
2011, p. 344;
Hirsch Ballin, M., Anticipative criminal investigation, Theory and Counterterrorism Practice
in the Netherlands and the United States, T.M.C. Asser Press, The Hague, 2012;
Illuminati, G. (ed.), Nuovi Profili del segreto di stato e dell’attività di intelligence, G.
Giappichelli Editore, Torino, 2010;
51) Nino, M., ‘Extraordinary renditions: The Role of European Security Services in the Fight
against International Terrorism’, Electronic Review of the International Association of Penal Law,
Vol. 78, 2008.
52) The Association of the Bar of the City of New York urges in its recommendations criminal
investigation into alleged acts of extraordinary rendition, see: ‘Torture by Proxy: International and Domestic
Law applicable to “extraordinary renditions”’, available at: www.chrgj.org/docs/TortureByProxy.pdf, at p. 8.
18
Johnson, R., ‘Extraordinary rendition: a wrong without a right?’, Richmond Law Review, Vol.
43, No. 3, 2009, pp. 1135-1174, at p. 1136;
Nadelmann, E., ‘The evolution of United States Involvement in the International Rendition of
Fugitive Criminals’, New York University Journal of International Law and Policy, Vol. 25, 1993,
pp. 813-885, at pp. 857-882;
Nikos Müller, T., Präventive Freiheitsentziehungen als Instrument der
Terrorismusbekämpfung, Duncker & Humblot, Berlin, 2011;
Nino, M., ‘Extraordinary renditions: The Role of European Security Services in the Fight
against International Terrorism’, Electronic Review of the International Association of Penal Law,
Vol. 78, 2008;
Pösl, M., ‘Die Sicherungsverwahrung im Fokus von BVerfG, EGMR und BGH’, Zeitschrift
für das Juristische Studium, Vol. 4, 2011, pp. 132-146;
Satterthwaite, M., ‘Rendered Meaningless: Extraordinary Rendition and the Rule of Law’,
The George Washington Law Review, Vol. 75, Nos. 5-6, 2007, pp. 1333-1420, at p. 1372;
Sottiaux, S., Terrorism and the limitations of Right:The ECHR and the US Constitution, Hart
Publishing, Oxford, 2008;
Stark, R., ‘The Ker-Frisbie-Alvarez Doctrine: International Law, Due Process, and United
States Sponsored Kidnapping of Foreign Nationals Abroad’, Connecticut Journal of International
Law, Vol. 9, No. 1, 1993, pp. 113-163, at pp. 161;
Vermeulen, M.L., Enforced Disappearance: Determining State Responsibility under the
International Convention for the Protection of All Persons from Enforced Disappearance,
Intersentia, Antwerp, 2012;
Yoo, J., ‘Transferring Terrorists’, Notre Dame Law Review, Vol. 79, 2003, pp. 1183-1235, at
p. 1184;
‘Extraordinary rendition in U.S. counterterrorism policy: the impact on transatlantic relations,
available at: foreignaffairs.house.gov/110/34712.pdf;
Human Rights Watch, ‘Black Hole: The Fate of Islamist rendered to Egypt’, 10 May 2005,
E1705;
‘Protection Against Unconventional Threats to the Homeland and Americans Overseas’,
available at: www.fas.org/irp/offdocs/pdd-62.htm;
‘Secret detentions and illegal transfers of detainees involving Council of Europe member
states: second report’, available at: assembly.coe.int;
‘Torture by Proxy: International and Domestic Law applicable to “extraordinary renditions”’,
available at: www.chrgj.org/docs/TortureByProxy.pdf, at p. 8;
‘The Fava Inquiry of the European Parliament’, available at: www.europarl.europa.eu;
‘The Dick Marty Report of the Council of Europe’, available at: assembly.coe.int/main.asp;
‘U.S. Policy on Counterterrorism’, available at: www.fas.org/irp/offdocs/pdd39.htm.