PREVENTION AND CONFLICT

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

This Legal Advisory sets out the minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfers, articulating threshold standards, substantive norms, and procedural requirements; and concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

In January 2009, President Obama promulgated a number of Executive Orders that created several Task Forces to advise him on certain aspects of U.S. counter-terrorism policy. One of the key issues under review is the U.S. practice of rendition. Several bodies of international law binding on the United States set out rules relevant to the transfer of individuals outside the United States to U.S. territory or to the custody of another state in the context of counter-terrorism operations. International refugee law, international human rights law, and international humanitarian law apply extraterritorially and concurrently. 

Examining human rights, refugee law, and humanitarian law norms together allows for the identification of a minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfer of an individual within its effective control. The transfers to which this minimum standard applies include, for example, “renditions to justice” to the United States or a third state; renditions pursuant to an international arrest warrant or request for surrender by an international court; transfers carried out at the close of hostilities in the context of armed conflict (i.e. repatriations of prisoners of war or security detainees); and transfers across borders of individuals detained in the context of armed conflict. 

This Legal Advisory sets out this minimum baseline standard, articulating threshold standards, substantive norms, and procedural requirements. As a threshold matter, formal transfer processes may not be intentionally bypassed and the United States must have a valid basis for apprehending an individual in contemplation of transfer. Substantively, the U.S. government may not transfer an individual to the custody of a state where he/she is at a real risk of: torture or ill-treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedurally, an individual facing transfer must have the ability to challenge the basis for his deprivation of liberty in contemplation of transfer prior to transfer before an independent decision-maker. This challenge must allow the individual to contest the transfer on the basis of fear of being subject to any of the risks protected against by international law. This Legal Advisory concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

PREVENTION AND CONFLICT

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

This report is a joint effort between the Center for Human Rights and Global Justice and Amnesty International, Cageprisoners, the Center for Constitutional Rights, Human Rights Watch, and Reprieve.

This report aims to shed light both on what has been revealed and what has been obscured by the U.S. government. It also seeks to demonstrate the enormous range of information that is in the public sphere about the nature and scope of the U.S. rendition, secret detention, and coercive interrogation activities. This exercise makes it increasingly evident that the threats of disclosure of “state secrets” and harm to national security are ill-founded, and that the real concern lies in the very fact that a program of this nature exists and continues to operate.

According to the United States (U.S.) government, shortly after September 11, 2001, the Central Intelligence Agency (CIA) was tasked with planning a “separate” program to begin secretly detaining and interrogating individuals outside of the United States. At that time, the CIA was also reportedly authorized to forcibly transfer individuals to foreign countries for interrogation in a practice commonly known as “rendition” or “extraordinary rendition.” Starting with the rendition of Ibn al-Shaykh al-Libi to Egypt in January 2002, and the detention and interrogation of Abu Zubaydah in March 2002,4 the U.S. post-9/11 rendition, secret detention, and coercive interrogation program has since swept up many individuals, the vast majority of whom are still unaccounted for by the United States. 

Between 2001 and September 2006, information about CIA rendition, secret detention, and coercive interrogation operations emerged piecemeal. The U.S. government was the source of some of this information: officials discussed rendition in the media and on Capitol Hill, but gave only partial accounts; they announced the capture of individuals, but refused to disclose their whereabouts; and they informed the National Commission on Terrorist Attacks Upon the U.S. (the 9/11 Commission) that certain individuals were “currently in U.S. custody,” but refused to give the Commission the access it sought to the detainees themselves. The U.S. government also provided “statements” culled from interrogations on behalf of certain secret CIA detainees in the cases of United States v. Paracha and United States v. Moussaoui. Media, inter-governmental bodies (such as the Council of Europe and the United Nations (UN)), human rights organizations, and former detainees also provided comprehensive insights into the CIA’s activities. 

In an effort to obtain further information from the U.S. government about its rendition, secret detention, and coercive interrogation activities, in 2004, 2006, and 2007, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law Center for Human Rights and Global Justice submitted Freedom of Information Act (FOIA) requests to several U.S. agencies, including the CIA. Following a refusal to disclose the majority of the information sought, AIUSA, CCR, and NYU IHRC filed suit in June 2007 in federal court in the Southern District of New York. In spring 2008, the CIA admitted that it had more than 7,000 relevant documents, but sought a ruling that it did not need to disclose the vast majority of those documents, arguing, inter alia, that it cannot be compelled to disclose information it argues is properly classified. In response, on June 26, 2008, AIUSA, CCR, and NYU IHRC filed an opposition to the CIA’s motion for summary judgment and a memorandum of law in support of a cross-motion for partial summary judgment.

PREVENTION AND CONFLICT

Surviving the Darkness: Testimony from the U.S. “Black Sites”

This report is a condensed version of the Declaration. It omits references to, and copies of, most exhibits to the Declaration but is otherwise unchanged. After more than eighteen months of being held “off the record” by the U.S. government, the Declaration and this report is Mohamed Bashmilah’s opportunity to tell his own story. Here, he puts back on the record the truth about the extensive human rights violations he and his family have suffered as a result of his enforced disappearance.

On September 6, 2006, President George W. Bush acknowledged that the United States operates a program of secret detention in the “War on Terror.” In the same statement, President Bush indicated that fourteen of the individuals held in the program had been transferred to Guantánamo Bay and that “…there are now no terrorists in the CIA program.” President Bush did not disclose the fate and whereabouts of the other individuals known or believed to have been secretly detained at some point by the U.S. government, and he left open the possibility that the CIA program would be used again.

A number of the individuals known or suspected to have been held secretly by the United States are still missing. The fate and whereabouts of a smaller number is known as a result of the efforts of human rights organizations. 

Since 2006, the International Human Rights Clinic at New York University School of Law has represented two such individuals—Yemeni nationals Mohammed Abdullah Saleh al-Asad and Mohamed Farag Ahmad Bashmilah. Their stories exemplify the nature and breadth of the U.S. system of detention in the “War on Terror,” as well as the treatment that individuals targeted in the “War on Terror” suffer.

December 2007. 

PREVENTION AND CONFLICT

Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror’

Based on research by six major human rights groups—Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Reprieve— this briefing paper identifies individuals believed to have been held at some point by the United States in secret sites, all of whom remain missing.

On September 6, 2006, President George W. Bush revealed that the United States runs a system of secret detention in the “War on Terror,” but he did not disclose how many individuals were secretly detained. While only the U.S. government knows exactly who remains missing, Off the Record provides the most comprehensive list of these individuals, who are believed to have been subject to an enforced disappearance for which the United States bears responsibility. 

This briefing paper provides information about detainees already identified as “disappeared” (for example, Ali Abdul-Hamid al-Fakhiri, commonly known as Ibn al-Shaykh alLibi) and names four missing detainees for the first time. It reveals the extent to which the United States illegally uses “proxy detention” to empty its secret sites and demonstrates that far from targeting the “worst of the worst,” the system sweeps up low-level detainees and even involves the detention of the wives and children of the “disappeared,” in violation of their human rights. 

Off the Record also documents allegations concerning the treatment of detainees while in secret detention, including torture and other cruel, inhuman or degrading treatment or punishment.

The briefing paper is available in Arabic, Spanish and English.

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.