Chapter on Understanding Exploring Practice of Extraordinary Renditions
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To what extent has the United States ofAmerica breached Article 7 of theInternational Covenant on Culture &Political Rights based on its involvement inextraordinary rendition?
ContentsCHAPTER 2: UNITED STATES INVOLVEMENT IN EXTRAORDINARY RENDITION42.2 What is Extraordinary Rendition?....................................................................................42.3 Extraordinary Rendition, Pre-9/11 or Post 9/11?.............................................................52.4 Extraordinary Rendition; a United States post 9/11 aggressive Counter terrorism policy................................................................................................................................................62.5 Gloves off: The Pattern, the practice and the victims......................................................72.6 Reach and Scope of the Practice....................................................................................122.7 Black Sites and Secret detentions..................................................................................132.8 Transfer and transportation – CIA bogus flight companies...........................................172.9 Other Countries involved – Forced or voluntary?..........................................................182.10 Conclusion....................................................................................................................19CHAPTER 3: HISTORICAL DEVELOPMENT OF HUMAN RIGHTS LAW AND PROHIBITION AGAINST TORTURE..................................................................................203.1 Introduction....................................................................................................................203.2 Historical development of human rights law and prohibition against torture................203.3 Conclusion......................................................................................................................26CHAPTER 4: EXTRAORDINARY RENDITION AND ITS IMPLICATION UNDER ARTILCE 7 OF ICCPR...........................................................................................................274.1 Introduction....................................................................................................................274.2 Articles of ICCPR..........................................................................................................274.3 Provision to derogate under Article 4 of the ICCPR......................................................274.4 What is Public Emergency?...........................................................................................284.5 Extraordinary Rendition and the doctrine of Non Refoulment......................................294.6 Article 7 and the Doctrine of Non Refoulement............................................................304.7 Doctrine of Non- refoulement and Extraterritorial Scope of Application.....................314.8 Secret detention, Ghost detainees and Extraterritorial Scope of Application under ICCPR..................................................................................................................................344.9 Conclusion......................................................................................................................375.1 Introduction....................................................................................................................395.2 Legal arguments by United Stated of America..............................................................395.3 International armed conflict between two or more High Contracting Parties to the Geneva Conventions............................................................................................................415.4 There is partial or total occupation of the territory governed by the Geneva Conventions..........................................................................................................................425.5 Afforded protected person status under the Conventions..............................................43
5.6 Rights and protections are afforded to those protected persons.....................................445.7 Conclusion......................................................................................................................45REFERENCES.........................................................................................................................46
CHAPTER 2: UNITED STATES INVOLVEMENT INEXTRAORDINARY RENDITION2.1 IntroductionMain focus on this chapter is made on understanding and exploring practice ofextraordinary renditions. Further, it also includes the practices that are followed by US as perICCPR1. In addition to this, all the characteristics of extraordinary rendition that containsblack sites, torture through proxy, Ghost detainees, etc. are also discussed. 2.2 What is Extraordinary Rendition?In accordance with research conducted, it can be stated that thereare nointernationally agreed definition for extraordinary rendition. However, it can be simplydefined as a condition in which an individual is transferred from one country to anothersecretly through illegal channels. It should not be confused with extradition as it is the legaltransfer of an individual or someone suspected of committing a crime from one country to theother. This is done at the request of the receiving country by fulfilling all legal and dueadministrative process.2 Extradition is carried out under a well safeguarded judicial processwith the suspect affording the opportunity to legal representation and can challenge anydecision of the extradition process that they deem unfavourable.3 On the other hand,extraordinary rendition is an extra judicial governmental transfer of an individual, most timessuspected terrorist from a foreign country by the United States of America without legal orlegal procedure. It is an irregular abduction, enforced for disappearance and then transfer ofsuspects to a third world country for interrogational purposes where they are more than likelyto be tortured and exposed to all sorts of inhumane and degrading treatment.4It was in theyear 1987 when foreign rendition was taking place by US. An airline hijacker, Fawaz Youniswas abducted from Italy and was bought to US. President of US during those time was BillClinton who authorised extraordinary rendition to nations who were known for practicingtorture and this was known as torture by proxy. Targeted individual are often seized in a foreign country based on the intelligentgathering of United States Intelligence and investigative agencies like the CIA (Central1 Boys, J.D., 2011. What's so extraordinary about rendition?.The International Journal of Human Rights.15(4).pp.589-604.2James D. Boys (2011) What's so extraordinary about rendition?, The International Journal of Human Rights, 15:4, Pg 589-6043 Murray, Mark J (2011): Extraordinary Rendition and U.S. Counterterrorism Policy." Journal of Strategic Security4, no. 3 : Pg 15-284 Ibid
Intelligence Agency), FBI (Federal Bureau of Investigations and the DSS (DiplomaticSecurity Services).2.3 Extraordinary Rendition, Pre-9/11 or Post 9/11?Although it is very difficult to ascertain when US began extraordinary rendition, but itis certain that it became heightened during post 9/11 based on the US aggressivecounterterrorism policy against enemy combatant5 (suspected Terrorist). According to AzizZ6 extraordinary rendition evolved out of the practices from 9/11 that only became apurposeful way for the United States evade prohibition against torture. 7Aziz who was aformer CIA agent in charge of 9/11 Counter terrorism even traced Extraordinary Rendition to1800 as a policy that was used in United States for rendering criminal suspects from overseacountries to be tried in the courts of US. According to him, this practice continued from 1993when Ramzi Youseff, the mastermind of the world trade bombings was arrested by thePakistani Intelligence in Islamabad and subsequently they handed over to the United Statesfor trial in a Federal Court of New York Southern District.8 Consequently, pre 9/11 renditionwas mainly transferring suspected caught for terrorism to United States for trial that wassupported by President Bill’s Clinton, executive order given by him that “When terroristswanted violation of US law at large overseas, their return for prosecution shall be a matter ofhighest priority... If we do not receive adequate cooperation from a state that harbours aterrorist whose extradition we are seeking, we shall take appropriate measures to inducecooperation. Return of suspects by force may be effected without the cooperation of the hostgovernment, consistent with the procedures outlined”.9 Testifying before the senate in 1998.The former FBI director Louis J Freeh confirmed that “During the past decade, the UnitedStates has successfully returned 13 suspected international terrorists to stand trial in theUnited States for acts or planned acts of terrorism against U.S. citizens...”10However, in same year, as part of wider counter terrorism program, things changed abit as United States began rendering suspects to third world countries where the goal was notnecessarily trial but to keep them in custody, out of circulation and out of reach from US5 James D. Boys (2011) What's so extraordinary about rendition? The International Journal of Human Rights, 15:4, Pg 589-6046 Frederick A, et al (2007) Unchecked and Unbalanced, Presidential Power in a time of Terror, Brennan Centre for Justice, New YorkPress. Pg 98 -150 7Murray, Mark J (2011): Extraordinary Rendition and U.S. Counterterrorism Policy." Journal of Strategic Security4, no. 3 : Pg 15-288 Frederick A, et al (2007) Unchecked and Unbalanced, Presidential Power in a time of Terror, Brennan Centrefor Justice, New York Press. Pg 98 -1509 James D. Boys (2011) What's so extraordinary about rendition?, The International Journal of Human Rights, 15:4, Pg 589-60410 Former FBI Director Louis J Freeh appearing United State Congressional Hearings on Intelligence and Security in September 1998
courts where they had access to every legal remedy available.11 The reason why there was achange in policy was due to unnecessary media scrutiny and rigid judicial procedure to getsuspected terrorist prosecuted and after a CIA proposed plan of bringing suspected terrorist toUS and to hold them as prisoners of war did not gain presidential approval. Michael Schuer,head of the CIA, stated that for Osama bin Laden Unit they began rendering suspects to thirdworld countries like Egypt, Yemen and Jordan.12 An example of a suspect rendered pre 9/11was Talaat Fouad, a key leader and spokesman of an Egyptian Islamic sect called lGamaa al-Islamiyah in Croatia. Quassem was reported to be seen in Egypt in the year 1996.13 Thequestion that need to be asked is the purpose of transferring rendering suspected terrorist pre-9/11 to third countries, mainly Yemen, Syria, Egypt and Jordan. While, according to theGeorge tenet, the purpose was to ensure the suspected terrorist stood trial and not for thepurpose of torture or debriefing through inhuman and degrading treatment. He stated that“Since July 1998, working with foreign governments worldwide, they have helped to rendermore than two dozen terrorists to justice. More than half were associates of Usama binLaden’s Al-Qaeda organization.”14 Amnesty international asked the CIA to provide details ofthose that were rendered and those that stood trials but they never responded. It is not actuallythat important if the statement is true or not, but what is important is that post 9/11extraordinary rendition was simply a continuation of a shady policy that has no modicum oftransparency policy put in place during pre-9/11.152.4 Extraordinary Rendition; a United States post 9/11 aggressive Counter terrorism policyThe 9/11 terrorist attack on US soil, first of its kind, arguably ushered almost a decadelong of human right violations carefully and thoroughly orchestrated or say spare headed byan allied country (US) since world War 2. The 9/11 attack expanded extraordinary renditionchanged in scope, scale, purpose and practice. The statement of intent from Vice PresidentDick Cheney gave an insight to the extend United States of America was willing to go in itscounter terrorism fight to not only avoid another terrorist attack of 9/11 on US soil but tobring its punish the perpetrators.11 Frederick A, et al (2007) Unchecked and Unbalanced, Presidential Power in a time of Terror, Brennan Centrefor Justice, New York Press. Pg 98 -15012 Murray, Mark J (2011): Extraordinary Rendition and U.S. Counterterrorism Policy." Journal of Strategic Security4, no. 3 : Pg 1713 Ibid14 FBI Agent appearing before the US Senate Committee on Intelligence in 200015 USA: Below the radar - Secret flights to torture and ‘disappearance’ Amnesty International 5 April 2006 , Pg23
“We also have to work, through sort of the dark side, if you will. We have to spend time inthe intelligent world. A lot of what needs to be done here will be done quietly without anydiscussion using methods that are available to our intelligence agency if we’re going to besuccessful. That’s the world these folks operate in, and so it’s going to be vital for us to useany means at our disposal, basically, to achieve our objective...”16The above statement by the Vice President of US was made on September 16, 2001 and wasmetastasized in action on September 17, 2001 when President George Bush signed a secretpresidential order that gave the CIA power to kill, capture and detain suspected terroristanywhere in the world.17 The order also authorised the secret offshore detention known asblack sites where CIA can send suspected terrorist by using coercive interrogation methodsdeemed illegal in the United States. Furthermore, the presidential gave power to the CIA totransfer and render suspected terrorist without case by approving it from the white house. Theimplication of the executive order is that the extraordinary rendition became a program thatwas exclusively owned by the CIA and sometimes with the help of other United StatesDefense and intelligent institutions.2.5 Gloves off: The Pattern, the practice and the victims.Early allegation of United states involvement in Extraordinary Rendition wasvehemently debunked by United States of America. President Bush firstly responded to theallegations which stated that United States of America do not torture and will not condonetorture anywhere in the world and will not torture any within the fifty states of it territoriesand the other two provinces.18 Former Secretary General also accentuated when questioned inone of trips to Germany, she stated that “The United States does not permit, tolerate, orcondone torture under any circumstances”. It was the “policy” of administration, that “theUnited States does not transport, and has not transported, detainees from one country toanother for the purpose of interrogation using torture.... “.19However, it is identified thatthere are different cases both inside and outside of US were torture has taken place. In this, itincludes US military, US intelligence agencies, US public organizations, etc.16 Former US Vice President responding to the 9/11 terrorist attack on US soil17Frederick A, et al (2007) Unchecked and Unbalanced, Presidential Power in a time of Terror, Brennan Centre for Justice, New York Press. Pg 12018 Kyriakou, N., 2012. The International Convention for the Protection of All Persons from Enforced Disappearance and its contributions to international human rights law, with specific reference to extraordinary rendition.Melb. J. Int'l L.13. pp.424.19 Bernstein, B., 2010. Over Before It Even Began: Mohamed v. Jeppesen Dataplan and the Use of the State Secrets Privilege in Extraordinary Rendition Cases.Fordham Int'l LJ.34. pp.1400.
Evidence and reports have been gathered through investigative journalism andinternational human right groups like Red Cross and Amnesty International. Although notofficial reports from government parastatals as many of the official activities remainedclassified under the US law. There reports analytically cannot be faulted or disputed becauseof the sequence of events and testimonies from many victims of extraordinary that are notonly collaborative but most times leads to more revealing to the extent of the practice ofextraordinary rendition. In this context, below given are some of the cases that has happenedin during post 9/11:Maher ArrarThe first case of Post 9/11 that was reported of Syrian born Canadian Engineer thatillustrated the difference between normal extradition and extraordinary rendition. MaherArrar was arrested in September 2002 by the United States secret service at the JFK airportwhile returning from a Vacation without access to legal counsel. Arrar was held at Brooklyndetention centre on suspicion of having links with Al Qaeda.20 Arrar was first transferred toJordan against his will and subsequently shipped to a Syrian prison. He was detained fornearly a year without been charged for any offence. The 35-year-old Engineer recount beenrepeatedly beaten with thick cables and often threatened with electrocution duringinterrogation about any links with Al Qaeda.21Abu Omar Abu Omar was abducted in Milan by the CIA in February 2003. At the time of his unlawfulabduction, he was under investigation but was not been charged for any case. He wasforcefully arrested while on his way to a Mosque from his house in Milan. An eyewitnessconfirmed that a Western looking man in sun glasses near a van manhandled.22On this basesAbu Omar was dragged into a van by Italian officials. After months of investigating theItalian investigators in the spring of 2004 intercepted phone calls that Abu Omar had placedfrom Egypt to his wife and a Colleague. He recounted the ordeal of his arrest - stopped byItalian looking men claiming to be police officers asking for any form of I.D. Before he couldproduce any he was sprayed by a chemical substance and bundled into a Van. He was driven20 Weissbrodt, David et al (2006) Extraordinary Rendition and the Torture Convention. Virginia Journal of International Law, Vol.; Minnesota Legal Studies Research Vol. 46, Pg 58321 Satterthwaite, Margaret (2006) "Rendered Meaningless: Extraordinary Rendition and the Rule of Law”. NewYork University Public Law and Legal Theory Working Papers. Paper 43. Pg 46 -4922 Weissman, S.R., 2010. An extraordinary rendition.Intelligence and National Security.25(2). pp.198-222.
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