PREVENTION AND CONFLICT

Torture by Proxy: International and Domestic Law Applicable to Extraordinary Rendition

This joint report with the International Human Rights Committee of the Association of the Bar of the City of New York analyzes the legal standards applicable to the practice of Extraordinary Rendition. Its main findings are that Extraordinary Rendition is an illegal practice under both domestic and international law, and that, consistent with U.S. policy against torture, the U.S. government is duty bound to cease all acts of Extraordinary Rendition, to investigate Extraordinary Renditions that have already taken place, and to prosecute and punish those found to have engaged in acts that amount to crimes in connection with Extraordinary Rendition.

The Report defines Extraordinary Rendition as the transfer of an individual, with the involvement of the United States or its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment.

The Report begins with an overview of the practice of Extraordinary Renditions as reported in the press; since Extraordinary Rendition appears to be a covert activity, the factual scenarios included in the Report have not been verified. Examples are given of cases in which the United States has allegedly been involved in transfers of individuals from inside the United States, from foreign states, and from U.S. military outposts to states well known to practice systematic or uncontrolled torture. The level of involvement of U.S. officials varies from case to case, but the facts in each example suggest that the United States is using this form of transfer as an interrogation technique in the “War on Terror.” Indeed, while the use of Extraordinary Rendition has been denied in all official settings, officials speaking off the record have acknowledged the practice. 

The Report next examines U.S. law to determine whether Extraordinary Renditions are, or could be, authorized by existing law or covert directives. After systematically considering the bases of authority for transfers of individuals by U.S. officials and the limits to that authority, the Report concludes that no publicly available statute, regulation, executive finding, directive or other action exists to authorize Extraordinary Rendition. Given the clear intent of Congress, expressed through legislation aimed at upholding U.S. obligations against torture and complicity in such abuse, and White House policy condemning torture, any purported authority to carry out Extraordinary Renditions would be an unauthorized derogation from U.S. law.  

The Report then discusses the international law applicable to Extraordinary Rendition, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Geneva Conventions of 1949; and the Refugee Convention of 1951. The Report demonstrates that all of these treaties contain provisions preventing some aspects, or the entire practice, of Extraordinary Rendition. This Section concludes with a consideration of some guiding principles from international law on criminal liability that may be relevant in efforts to prosecute individuals who have been involved in Extraordinary Renditions. Standards explored include those governing complicity and conspiracy, the doctrine of command responsibility, and certain justifications and defenses available under international law. The Report then turns to the use of “diplomatic assurances”– promises made by governments not to torture or mistreat individuals who are being transferred into their custody. Because these promises are made only when the circumstances indicate that an individual is at risk of torture, and because there are no procedural safeguards allowing for their transparent implementation, the Report concludes that diplomatic assurances as currently used are ineffective. 

The Report next demonstrates ways in which Extraordinary Rendition could leave the United States vulnerable to international liability under the doctrine of state responsibility. This Section explains that the U.S. government is required by international treaty law to prevent, investigate, prosecute, and punish acts amounting to Extraordinary Rendition. 

The Report concludes with a comprehensive examination of the U.S. criminal and civil statutes that are applicable to individuals involved in Extraordinary Rendition, demonstrating that such individuals may be open to criminal charges and/or civil liability for conspiracy and complicity in torture.