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. 

PREVENTION AND CONFLICT

By the Numbers: Findings of the Detainee Abuse and Accountability Project

This briefing paper presents the preliminary conclusions of the Detainee Abuse and Accountability Project (DAA Project) based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings.

In 2004, revelations about the abuse of detainees in U.S. custody at Abu Ghraib prison in Iraq shocked people across the world. In response, U.S. government officials condemned the conduct as illegal and assured the world that perpetrators would be held accountable. 

Two years later, it has become clear that the problem of torture and other abuse by U.S. personnel abroad was far more pervasive than the Abu Ghraib photos revealed—extending to numerous U.S. detention facilities in Afghanistan, Iraq, and at Guantánamo Bay, and including hundreds of incidents of abuse. Yet an analysis of alleged abuse cases shows that promises of transparency, investigation, and appropriate punishment for those responsible remain unfulfilled. U.S. authorities have failed to investigate many allegations, or have investigated them inadequately. And numerous personnel implicated in abuses have not been prosecuted or punished. 

In order to collect and analyze allegations of abuse of detainees in U.S. custody in Afghanistan, Iraq, and at the Guantánamo Bay detention facility, and to assess what actions, if any, the U.S. government has taken in response to credible allegations, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Human Rights First have jointly undertaken a Detainee Abuse and Accountability Project (DAA Project). 

The Project tracks abuse allegations and records investigations, disciplinary measures, or criminal prosecutions that are linked to them. This briefing paper does not discuss allegations of torture or abuse at secret U.S. detention facilities in other countries, or allegations of torture following illegal rendition or other informal transfer to other countries. It presents the Project’s preliminary conclusions based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings. 

PREVENTION AND CONFLICT

Enabling Torture: International Law Applicable to State Participation in the Unlawful Activities of Other States

This briefing paper sets out the scope of legal obligations of States concerning human rights violations perpetrated by the U.S. in its “War on Terror.” The briefing paper looks at the obligations of States that are both independent of, and in addition to, those which bind the U.S. It primarily deals with international human rights law and does not address regional or domestic arrangements.

The full nature and extent of other States’ involvement in U.S. actions in its “War on Terror” is the subject of continuing revelation and investigation, both in individual countries and within regional frameworks, such as the European Union. How this involvement violates a State’s obligations under international human rights law depends on the facts that emerge through these and future inquiries. Evidence of involvement per se will not automatically be a breach of a State’s obligations; some forms of involvement may properly be part of the State cooperation necessary to end terrorism. Involvement is prohibited when States seek assistance in using illegal means to combat terrorism. 

This briefing paper does not analyze in detail how the practices of the U.S. violate international human rights norms. This is a topic that the Center for Human Rights and Global Justice has addressed in other work. Instead, this paper looks at the obligations of States that are both independent of, and in addition to, those which bind the U.S. The Briefing Paper primarily deals with international human rights law and does not address regional or domestic arrangements. 

PREVENTION AND CONFLICT

The Enigma of the ‘Most Serious’ Offenses

This working paper is part of the Extrajudicial Executions Series. 

The paper deals with the International Covenant on Civil and Political Rights’ provision that ‘in countries which have not abolished the death penalty, sentences may be imposed only for the most serious crimes ….’ Situating the provision in the context of its drafting, the paper clarifies that, while its ambiguity reflected a lack of consensus regarding the particular crimes for which capital punishment was prohibited, it served as a ‘marker’ for the policy of moving toward abolition through restriction, encouraging a subsequent process of dynamic interpretation.

The paper goes on to describe how the situation as regards the scope and practice of capital punishment has changed since the provision was drafted, necessitating a constant reappraisal of the meaning that should be attached to the concept of ‘most serious crimes’.

The paper then traces the abolition of capital punishment in the United Kingdom and the part played by the failed attempt to define, within the crime of murder, a category of the ‘most serious’.

The paper concludes with a discussion of the necessity for open review, research and publication of statistics on the use of the death penalty so as to inform the public of the manifold problems of the enforcement of capital punishment within a legal structure that is seeking to embrace the concepts of the rule of law and respect for human rights.

2006. Roger Hood, Emeritus Professor of Criminology, University of Virginia School of Law; Emeritus Fellow of All Souls College; Oxford University. 

PREVENTION AND CONFLICT

Fate and Whereabouts Unknown: Detainees in the ‘War on Terror’

This Briefing Paper presents factual summaries of individuals who may be in secret detention sites. The 28 stories of individuals who may have been “disappeared” by the U.S. government are drawn from media accounts, human rights reports, and in some cases, interviews with legal representatives. While the level of certainty about the status of these individuals varies, the facts in each case are sufficient to indicate that each may have been a victim of an enforced disappearance by the United States.

PREVENTION AND CONFLICT

Beyond Guantanamo: Transfers to Torture One Year after Rasul v. Bush

This report discusses the transfers, how they could be a convenient tool for avoiding U.S. courts and circumventing the rights of detainees while at the same time allowing the Administration to maintain access to the individuals and to any information they may possess. The authors argue that although the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture.

On June 28, 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to consider claims by foreign nationals captured abroad in connection with the global “War on Terror” and incarcerated at Guatnánamo Bay. While the federal courts work to determine the rights of these detainees, the Guantánamo Bay prison has itself become the focus of intense criticism by a wide variety of leaders and organizations, with prominent figures such as Former President Jimmy Carter calling for the prison to be shut down. Despite the criticisms, however, the Bush Administration continues to employ strategies that appear to be aimed at keeping “War on Terror” detainees outside the ambit of the U.S. legal system, including through renditions, extraordinary renditions, reverse renditions, and transfers to secret detention facilities in foreign countries. 

Though the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture. 

As a general matter, each of the various transfers can fall into one or more legal categories, defined for the purposes of this paper as (i) legal transfer, (ii) extra-legal transfer, and (iii) illegal transfer. A legal transfer is a transfer that is clearly authorized under U.S. law and contains an established, regulated method for detainees to challenge their transfer on the grounds that they fear torture. An extra-legal transfer is a transfer that appears to be authorized under U.S. law but contains no method for the detainee to effectively challenge transfer on the grounds of fear of torture. Finally, an illegal transfer is a transfer that is clearly unauthorized under U.S. law. 

As the courts address the scope of the rights due to those detained in Guantánamo Bay, and as pressure to close the Guantánamo Bay facility mounts, the use of extra-legal and illegal transfers is likely to increase even further. It is therefore imperative that criticisms of Guantánamo Bay and calls for the facility’s closure be accompanied by an equally strong condemnation of the use transfers designed to circumvent the rule of law and to undermine the principles of justice that form the cornerstone of the U.S. legal system. 

June 28, 2005. This report was researched and written by Angelina Fisher and Margaret Satterthwaite.