April 8, 2008

International Legal Standards

The systematic rendition of individuals to Jordan by the United States in the years following the September 11 attacks violated several fundamental human rights guarantees. These include the prohibitions on arbitrary detention, torture and cruel, inhuman, or degrading treatment, and enforced disappearance.[63]

The Jordanian government violated both national law and international human rights law by torturing and otherwise mistreating rendered detainees, by detaining them without charge or trial, and by holding them incommunicado, without contact or visits by family members or legal counsel.

By rendering prisoners to Jordan, the United States specifically violated its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), which it ratified in 1994.[64]  The Convention against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession" and when "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."[65]  States violate the Convention against Torture not only by directly inflicting torture, like Jordan, but also, under article 3, when they "expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."[66]

Rendition to torture is thus a clear violation of the prohibition against torture.  In 2006, the UN Committee against Torture, the international expert body responsible for monitoring state compliance with the Convention against Torture, expressed concern with the US contention that the non-refoulement obligation under the convention did not extend to persons detained outside of the United States. It maintained that the US government's "rendition of suspects, without any judicial procedure, to States where they face a real risk of torture" was a violation of the Convention against Torture.[67]  The committee called upon the United States to:

apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, in order to comply with its obligations under article 3 of the Convention. The State party should always ensure that suspects have the possibility to challenge decisions of refoulement.[68]

Notably, in the case of Agiza v. Sweden, the Committee against Torture held that Sweden violated the Convention against Torture when it assisted in the CIA's rendition to Egypt of Egyptian asylum seeker Ahmed Agiza in December 2001.  The Committee found that "it was known, or should have been known, to [Sweden]'s authorities at the time of [Agiza]'s 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."[69]  The Committee also stated that "an inability to contest an expulsion decision before an independent authority . . . [is] relevant to a finding of a violation of [the Convention]" because it violates "the procedural obligation to provide for effective, independent and impartial review required by article 3 of the Convention."[70]

Importantly, the Committee rejected Sweden's argument that it should be not be found responsible because it had obtained assurances from the Egyptian government that Agiza would not be ill-treated.  As the Committee emphasized, the "procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk."[71]  In its 2006 Conclusions and Recommendations to the United States, the Committee called upon the US government to "provide detailed information to the Committee on all cases since 11 September 2001 where assurances have been provided."[72]

Numerous other international authorities have criticized the use of diplomatic assurances in cases involving returns to a risk of torture, finding that they do not provide effective protection.[73]  Human Rights Watch has shown, as an empirical matter, that such assurances are often unreliable, and that persons who have been returned to their home countries on the basis of such assurances have faced torture and other abuse.[74]  The brutal torture endured by Maher Arar-a Canadian-Syrian dual national whom the United States rendered to Syria, via Jordan-is perhaps the most notorious example of this problem.[75]

International human rights law provides victims of rights violations the right to an effective remedy.  In cases where people have endured torture as a result of US actions, they should be able to seek legal redress in court.  The International Covenant on Civil and Political Rights provides that states shall "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy" for abuses by persons acting in an official capacity, that anyone claiming such a remedy shall have this right determined by competent governmental authorities, and that states shall ensure that remedies are enforced.[76]

Under the Convention against Torture, in addition, torture victims have a right of access to the courts in order to obtain fair and adequate compensation.[77]  To date, however, the US courts have proven hostile to victims of rendition, dismissing a lawsuit brought by a group of rendition victims that include Ahmed Agiza, Abou Elkassim Britel and Binyam Mohamed, as well as an earlier suit brought by rendition victim Maher Arar.[78]  While the Canadian government acknowledged wrongdoing and compensated Arar for his suffering, the US government has done neither.  Indeed, despite heavy international criticism, the US government has never acknowledged that the CIA's rendition program has resulted in abuses or has violated the law.[79]

[63] See, for example, International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, arts. 7 & 9;  Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992). The United States ratified the ICCPR in 1992.

[64] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.

[65] Convention against Torture, art. 1.  The International Covenant on Civil and Political Rights (ICCPR), also bars torture and cruel, inhuman or degrading treatment or punishment.  ICCPR, art. 7.

[66] Convention against Torture, art. 3.

[67] Committee against Torture, Conclusions and Recommendations of the Committee against Torture Concerning the Second Report of the United States of America, U.N. Doc. CAT/C/USA/CO/2, 25 July 2006, para. 20 (stating that article 3 applies extraterritorially); see also Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), para. 27.

[68] Committee against Torture, Conclusions and Recommendations of the Committee against Torture Concerning the Second Report of the United States of America, para. 20.

[69] Committee against Torture, Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003, May 20, 2005, para. 13.4.

[70] Ibid., paras. 13.7-13.8.

[71] Ibid., para 13.4.

[72] Committee against Torture, Conclusions and Recommendations of the Committee against Torture Concerning the Second Report of the United States of America, para. 21.

[73] See, for example, "Report of the special rapporteur on the question of torture," U.N. Commission on Human Rights, 62nd Session, UN Doc. E/CN.4/2006/6, p. 2 (stating that "Diplomatic assurance ... are not legally binding [and] are ineffective and unreliable in ensuring the protection of returned persons").

[74] See Human Rights Watch, "'Empty Promises:' Diplomatic Assurances No Safeguard against Torture," Vol. 16, No. 4 (D), April 2004;  Human Rights Watch, "Still at Risk: Diplomatic Assurances No Safeguard Against Torture," Vol. 17, No. 3(D), April 2005.

[75] Arar was arrested by US officials at JohnF.KennedyAirport in New York on September 26, 2002, held for nearly two weeks in immigration detention, and subsequently rendered to Jordan, from which he was driven to Syria. At the Far Falestin detention center in Syria, he was held in detention without charge for more than a year, tortured, and exposed to abusive conditions of confinement.  See "Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar," September 18, 2006.

[76]ICCPR, art. 2(3).  The UN Human Rights Committee in its 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), at paragraph 10, states with respect to states' jurisdiction for human rights violations:

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.

See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11.

[77] Convention against Torture, art. 14(1) (Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.)

[78] The Center for Constitutional Rights filed suit on behalf of Maher Arar in the US District Court for the Eastern District of New York in January 2004, naming Attorney General John Ashcroft, FBI Director Robert Mueller, Homeland Security DirectorTomRidge, and others, as defendants.  The court granted the government's motion to dismiss Arar's suit in 2006, finding that the case implicated sensitive national security and foreign policy considerations.  Arar appealed, and in November 2007, Arar's lawyers argued before the US Court of Appeals for the Second Circuit that the district court's ruling should be reversed.  A decision is currently pending.

                        The American Civil Liberties Union (ACLU) filed suit on behalf of Ahmed Agiza, Abou Elkassim Britel and Binyam Mohamed (later adding Bisher al-Rawi and Mohamed Farag Ahmad Bashmilah as plaintiffs ) in a case against Boeing subsidiary Jeppesen Dataplan, Inc., the company that allegedly provided flight services for the CIA's rendition program.  The complaint was dismissed in February 2008 based on the U.S. government's claim that the case would reveal state secrets and endanger relations with countries that had cooperated in the renditions.  The ACLU has announced plans to appeal.

[79] The closest any senior US government official has come to publicly expressing regret in a rendition case came at an October 2007 hearing before the House Foreign Affairs Committee, when Secretary of State Condoleezza Rice admitted that the US government "mishandled" the case of Maher Arar.  Rice reportedly "sounded contrite" but did not apologize.  Deborah Charles, "U.S. mishandled case of Canada's Arar, admits Rice," Reuters, October 24, 2007.