September 30, 2008

International Legal Standards

The systematic rendition of individuals from Kenya to Somalia, and Somalia to Ethiopia, violated several fundamental human rights guarantees under international law. These include the prohibitions on arbitrary detention; torture and cruel, inhuman, or degrading treatment; and enforced disappearance.[57]

The Ethiopian government violated international law in its torture and other mistreatment of persons in custody. Ethiopia ratified the International Covenant on Civil and Political Rights (ICCPR) in 1993, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) in 1994. Both conventions prohibit torture and cruel, inhuman, or degrading treatment.

By rendering detainees to Somalia, Kenya violated its obligation not to "expel, return ('refuter') or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture."[58] In 2006, the UN Committee against Torture, the international expert body responsible for monitoring compliance with the Convention against Torture, explained that in order to fulfill the non-defilement obligation, states "should always ensure that suspects have the possibility to challenge decisions of defilement"-something the Kenyan government has failed to do.

The Somali Transitional Federal Government similarly violated its non-refoulement obligation to the extent that it helped facilitate the deportations from Somalia to Ethiopia.[59]

Kenya also violated international law when it expelled individuals who, based on their identification documents, appeared to be Kenyan citizens and those with valid Kenyan visas or residency documents. The Kenyan government's deportation of Kenyan nationals and other persons lawfully in Kenya to Somalia without judicial or other competent review violates fundamental rights against arbitrary deportation provided under the ICCPR.[60]

Kenya and Ethiopia's detention of men, women, and children without access to a judicial authority and without charge, and holding them incommunicado from family members, legal counsel, and diplomatic representatives, violated international law prohibitions on arbitrary detention and enforced disappearances.[61]

In 2006, the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention against Enforced Disappearance). The convention defines "enforced disappearance" as:

The arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.[62]

The Convention against Enforced Disappearance prohibits enforced disappearance both in peacetime and wartime. It requires states to hold all detainees in officially recognized places of detention, authorize communications with detainees' families and legal counsel, and give competent authorities access to detaineesand maintain official records of all detainees.[63] Kenya signed the convention on February 6, 2007, but has not yet ratified it.

The UN Working Group on Enforced or Involuntary Disappearances has stated that the crime of enforced disappearance "is a continuous crime until the fate or whereabouts of the disappeared person becomes known."[64] Persons "disappeared" in Kenyan, Somali, or Ethiopian custody who have since been transferred elsewhere remain the legal obligation of the relevant state so long as their fate or whereabouts remain unknown.

Finally, while the US government was not directly responsible for arresting, detaining, or rendering individuals into Ethiopian custody, it definitely knew of the renditions, and, at a minimum, took advantage of the abusive activities of the Kenyan, Somali, and Ethiopian governments to interrogate terrorist suspects of interest, raising serious concerns about US government complicity in the abuses. The US government also provided substantial funds to the Ethiopian military, supported its operations in Somalia, and trained Kenyan security forces in counterterrorism. It continues to supply millions of dollars in counterterrorism assistance to both Kenya and Ethiopia, describing these nations as key partners in the region, without ever publicly raising concerns about ongoing arbitrary detentions and rendition-related abuses.

[57] 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 forceMarch 23, 1976, arts. 7 & 9; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), 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; 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).

[58]Convention against Torture, art. 3(1).

[59] Somalia ratified both the ICCPR and the Convention against Torture in 1990.

[60]ICCPR, art. 12 ("No one shall be arbitrarily deprived of the right to enter his own country"), and art. 13 (concerning aliens lawfully in the territory of a state party to the ICCPR).

[61] Article 9 of the ICCPR states that "[n]o 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." Incommunicado detention arises when detainees are denied access to lawyers, family members, and physicians. In 2003, the UN Commission on Human Rights passed a resolution holding that "prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture." 147/1983, Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc. CCPR/C/OP/2 1990, p. 176.

[62] International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly on December 20, 2006, opened for signature on February 6, 2007, art. 2. The treaty will enter into force 30 days after 20 states have ratified it in accordance with article 39.

[63] Convention against Enforced Disappearance, arts. 1, 17.

[64] Report of the UN Working Group on Enforced or Involuntary Disappearances, Commission on Human Rights, E/CN.4/2006/56, December 27, 2005, para. 10.