THE UNITED STATES GOVERNMENT'S PRACTICE OF "EXTRAORDINARY RENDITION"
REPRESENTS A CONSISTENT PATTERN OF GROSS AND RELIABLY ATTESTED VIOLATIONS OF HUMAN RIGHTS
WARRANTS CONSIDERATION BY THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS
UNDER THE 1503 PROCEDURE Submitted by
Professor Francis A. Boyle
Lawyers Against War
3220 West 13th Avenue
Vancouver, British Columbia
Canada V6K 2V5
23 November 2005
QUESTIONS PRESENTED ……………………………………………………5
SUMMARY OF THE ARGUMENT……………………………………………13
I. The United States government is bound by at least three international obligations not to engage in the practice of torture or cruel, inhuman or degrading treatment.
United States Government Publications
Final Report of the Independent Panel to Review DOD Detention Operatives (Aug. 2004), Appendix C, available at http//wid.ap.org/documents/iraq/040824finalreport.pdf.
U.S. Department of State, Country Reports on Human Rights Practices, available at http://www.state.gov/g/drl/rls/hrrpt/2004.
138 Cong. Rec. S4781-84 (1992).
136 Cong. Rec. S17, 492 (1990).
1. Whether the United States government is bound not to engage in the use of cruel, inhuman or degrading treatment due to its status as a signatory to the Torture Convention, the ICCPR, and the Third and Fourth Geneva Conventions.
2. If so, whether the United States government remains bound by these international treaty obligations not to engage in the use of cruel, inhuman or degrading treatment when extraordinary renditions are conducted outside its’ borders, by and/or on non-U.S. citizens, and amidst government claims of ignorance of the treatment of suspects once they leave the custody of the United States government.
3. Whether the United States government’s use of so-called “extraordinary rendition” procedure constitutes cruel, inhuman or degrading treatment and should therefore be proscribed.
4. Alternatively, whether the United States government-acknowledged uncertainties associated with the extraordinary rendition process precludes its use as a legal investigatory tool.
The Evolution of the Term and Its’ Practice
The term “extraordinary rendition” as it has become known in recent years, is, in the words of one recent report, “a deliberately bland bureaucratic euphemism.” Outsourcing a Real Nasty Job, U.S. News & World Report, May 23, 2005. The term has been used since the late 1970’s, according to a former member of the United States Marshals Service, to describe when “we would go overseas and kidnap fugitives and bring them back to the U.S.” On Language, New York Times, June 20, 2004. Yet since the 1970s, the term’s meaning seems to have reversed: in 2004 the Associated Press defined it as “the covert practice of expelling subjects to countries known to use torture to extract information.” Id. The customary and internationally recognized channel for handling disputes over international criminal custody is the practice of extradition. Black’s Law Dictionary defines extradition as “the official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by the authorities where the fugitive resides.” Black’s Law Dictionary, 8th Ed., 2004. Extradition is a process regulated by a complex web of international treaties, either bilateral or multilateral. Generally these treaties require countries seeking extradition to make minimum showings of the seriousness of the crime, the strength of the case against the individual to be extradited, the status of the accusation as a crime in both countries, the fairness of a trial in the receiving country, and the proportionality of the likely penalty to the crime. See 24 A.L.R. Fed. 940; 18 U.S.C.A. 3181 et seq.
In contrast, the former United States Marshal described extraordinary rendition as an end-run around failed extradition attempts: “after extradition attempts fail, extraordinary rendition could range from luring a fugitive to a friendly country, or ‘an outright snatch.’ On Language, New York Times, June 20, 2004.
In terms of the recent past, the Clinton administration pioneered the use of extraordinary renditions in response to the bombings at the U.S. embassies in Kenya and Tanzania in 1998 by suspected Al-Qaeda operatives. According to Michael Scheuer, a former CIA counter-terrorism expert who helped establish the practice of extraordinary rendition, the program was “‘begun in desperation’” in order to “‘detect, disrupt, and dismantle’” Al Qaeda operations. Outsourcing Torture, The New Yorker, February 14, 2005. While Scheuer’s group obtained an indictment against Osama bin Laden which would have allowed U.S. agents to bring him to the United States for trial, they were concerned that the transparency required by the judicial system would force disclosure of their intelligence sources and methods. Id. Additionally, in the United States the State Department could obstruct the CIA’s plans, such as when they refused to allow a joint CIA/FBI undertaking to question one of bin Laden’s cousins in the United States because he held a diplomatic passport. Id. These concerns with judicial transparency and intragovernmental obstacles led Scheuer and his CIA group to conclude that “‘we had to come up with a third party.’” Id. The ideal third-party for these purposes was Egypt, due to it’s status as a U.S. ally and its police force’s reputation for brutality. Id. Egypt embraced the rendition program when it was proposed in 1995, due to a few key facts that allied American and Egyptian interests: Egypt is both a substantial recipient U.S. foreign aid, Egyptian President Hosni Mubarak’s prime political enemies were radical Islamists, and many senior Al-Qaeda operatives were, and are, Egyptian. Id.
However, while the roots of today’s extraordinary renditions were developed in the mid-1990s, at that time the Clinton administration strongly urged the intelligence services involved “to respect lawful boundaries in interrogations,” even going so far as to “cut off funding and cooperation with the directorate of Egypt’s general intelligence service” due to torturing of suspects. U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002.
In examining the history of extraordinary rendition, it is critical to note that there is a very clear division between extraordinary renditions conducted before and after the terrorist attacks of September 11, 2001. Before these attacks, “the CIA had been authorized by presidential directive to carry out renditions, but under much more restrictive rules.” Id. For instance, “the transfers of individual prisoners required review and approval by interagency groups led by the While House, and were usually authorized to bring prisoners to the United States or other countries to face criminal charges.” Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005. Further, these suspects subjected to extraordinary rendition prior to September 11, 2001 generally already had outstanding foreign arrest warrants to their name. Outsourcing Torture, The New Yorker, February 14, 2005. The former director of the CIA has testified that there were about 70 renditions prior to September 11, all authorized by the White House. Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005. However, since September 11, 2001, the extraordinary rendition program has expanded from its original form “beyond recognition” into what a former CIA official now deems “‘an abomination.’” Outsourcing Torture, The New Yorker, February 14, 2005.
The post-9/11 shift in the U.S. Government’s use of extraordinary rendition can be observed in Vice President Dick Cheney’s comments made a few days following the attacks:
654456"" A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so its going to be vital for us to use any means at our disposal, basically, to achieve our objective.
Meet the Press, (NEB television broadcast, September 16, 2001).
Subsequent testimony from U.S. intelligence officials corroborate the Bush administration’s no-holds-barred approach to counterterrorism post-9/11. Speaking to a joint hearing of the U.S. House and Senate intelligence committees, Cofer Black, a CIA counterterrorism official said “‘this is a very highly classified area, but I have to say that all you need to know: there was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off.’” U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002. A recent CBS news investigation tends to support this characterization, reporting that “it appears the number of flights [conveying terrorism suspects to countries with deplorable human rights records for interrogation] increased greatly in the Bush administration after 9/11.” Sixty Minutes (CBS television broadcast, March 6, 2005).
Those who have survived this clandestine process tell remarkably similar stories: masked men in a Gulfstream V jet seize them, cut off their clothes, place them in blindfolds and jumpsuits, shackle them, tranquilize them, and fly away. Sixty Minutes (CBS television broadcast, March 6, 2005); World News Tonight (ABC television broadcast, March 7, 2005); Counterpunch.org, Torture Air, Incorporated, April 9, 2005. To the suspects’ families, they effectively vanish; alarmingly for the suspects themselves they resurface in countries that have been identified by the U.S. State Department in its annual human rights reports as employing brutal means of interrogation: Morocco, Egypt, Jordan, Iraq, Afghanistan, Saudi Arabia and Uzbekistan. (http://www.state.gov/g/drl/rls/hrrpt/2004). Not only are these suspects held “without resort to legal process,” the suspects are subject to some of the most brutal forms of torture imaginable. U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002.
Thus what began as a program “aimed at a small discrete set of suspects – people against whom there were outstanding foreign arrest warrants” in the days prior to September 11, 2001 has been estimated by international law experts at 150 renditions since then. Outsourcing Torture, The New Yorker, February 14, 2005. Yet while members of the U.S. Congress have asked the CIA for more precise numbers to no avail, the results of a CBS news investigation presented on a Sixty Minutes broadcast indicate that one of the jets employed in carrying out the extraordinary renditions (recognizable from its tail number) has made at least 600 flights to 40 countries since September 11, 2001. Sixty Minutes, (CBS television broadcast, March 6, 2005). Further, “[the jet’s] major destinations read like a road map to the war on terror: 30 trips to Jordan, 19 to Afghanistan, 17 to Morocco, 16 to Iraq.” Id. Another of the CIA’s jets transporting suspected terrorists has made 10 trips to Uzbekistan. Sweet Land of Liberty: Torture Doublespeak, Secret Orders and Renditions Cast Their Shadow, Washington Times, March 21, 2005.
SUMMARY OF THE ARGUMENT
The United States is bound by its international treaty obligations that prohibit the use of torture for any purpose. It may not make reservations that defeat the purpose of these treaties.
First, the International Covenant on Civil and Political Rights (ICCPR) instructs signatories that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992).
Second, the Convention Against Torture prohibits the use of torture for any purpose, explicitly stipulating that “no exceptional circumstances whatsoever . . may be invoked as a justification for torture.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994), (adopted by the United States on November 20, 1994) [hereinafter Torture Convention]. It further instructs that “No party shall expel, return or extradite a person to another States where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Id. Third, the Third and Fourth Geneva Conventions seek to extend humane treatment to both prisoners of war and civilians. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950).
The United States Government remains bound by its treaty obligations regardless of where torture is carried out, the citizenship of the torturees/torturers, or claims of ignorance as to the treatment of suspects in U.S. custody.
The practice of extraordinary rendition forces suspects to endure cruel, inhuman and degrading treatment and outright torture. Reports of survivors and investigations of this secret practice indicate a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. Therefore, this practice represents a violation of the United States’ obligations under the Torture Convention, ICCPR, and Third and Fourth Geneva Conventions and should be proscribed.
I. The United States government is bound by at least three international obligations not to engage in the practice of torture or cruel, inhuman or degrading treatment.
Under the U.S. Constitution, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const. art. VI, §2, cl. 2. These above treaties are therefore part of the Supreme Law of the Land, and are hence binding on the United States government.
However, the United States’ approach to human rights treaties tends to conceive of them as sieves into which holes for incomplete compliance, or outright noncompliance, may be freely poked. For instance, the U.S. approach was, and remains, to make illegal reservations to the ICCPR. See generally William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still A Party?, 21 Brook. J. Int’l L. 277 (1995). For instance, while the rights outlined in the ICCPR are “[derived] from the inherent dignity of man,” the United States accompanied its acceptance of the treaty with “no less than five reservations, four interpretive declarations, and five ‘understandings’ – an unprecedented number.” Id. at 278. In particular, the U.S. instruments of ratification to the ICCPR as well as the Torture Convention contained non-self-executing (NSE) declarations. See 138 Cong. Rec. S4781-84 (1992); 136 Cong. Rec. S17, 492 (1990). Scholarly criticisms of U.S. NSE declarations range from characterizations as “against the spirit of the Constitution,” “of dubious validity, probably [having] no binding effect on United States courts,” to “[bringing] serious dishonor to the United States and should be abandoned.” Louis Henkin, U.S. Ratification of Human Rights Covenants: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346-8 (1995); Charles H. Dearborn III, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self Executing, 57 Tex. L. Rev. 233, 233 (1979); Jordan J. Paust, Avoiding ‘Fraudulent’ Executive Policy: Analysis of on Civil and Political Rights, 42 DePaul L. Rec. 1257 (1993). While there has been much thoughtful scholarly debate on the question of the meaning and effect of NSE declarations on their respective treaties, it is well established law that reservations and interpretive declarations which are incompatible with the object and purpose of a treaty are per se invalid. See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001); see also Jordan J. Paust, International Law as Law of the United States 368 (1996) (“an attempted ‘reservation’ or declaration which conflicts with a jus cogens norm must also be void”); Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331 (reservations to a treaty ratification are prohibited where they are "incompatible with the object and purpose of the treaty"); Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 373 n. 5 (2d Cir.2004) (while the United States has not adopted the Vienna Convention on the Law of Treaties, U.S. courts have looked to it "as an authoritative guide to the customary international law of treaties").
Normally NSE declarations are regarded as “[precluding] U.S. courts from applying human rights treaty provisions directly to resolve cases involving alleged human rights treaty violations by federal, state or local governments or officials.” David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 133 (1999). However, in the particular cases of the Torture Convention and the ICCPR, this purpose is at odds with the treaties themselves: both base the rights they enumerate on “the inherent dignity of the human person.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994); International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967). Certainly the “inherent dignity of the human person” that forms the basis of the Torture Convention and the ICCPR is the same throughout the world; therefore U.S. efforts to avoid being held to its obligations under these treaties via NSE declarations rise to the level of incompatibility with the treaties’ object and purpose under customary international law. These NSE declarations must therefore be invalid under customary international law.
Despite U.S. efforts to designate the Torture Convention and the ICCPR as NSE, the United Nations Human Rights Committee has expressed a preference for a severability approach: i.e., that “reservations that offend peremptory norms” “will generally be severable, in the sense that the Covenant will be operative for the reserving party without the benefit of the reservation.” General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm. 53d Sess. 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), in Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001). Therefore, the United States NSE declarations that are offensive to peremptory norms and violate peremptory norms are severable from its acceptance of the terms of the Torture Convention and the ICCPR.
In their present forms, the Third and Fourth Geneva Conventions entered into force on October 21, 1950. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950).
With the Third and Fourth Conventions, aimed at the Treatment of Prisoners of War and Protection of Civilian Persons in Time of War, respectively, the drafters intended to extend human rights to all persons involved in armed conflict situations. These Conventions are intended to be exhaustive: in terms of coverage, they apply to persons involved in armed conflict, either directly or indirectly.
The United States has recently taken the position that in it’s undeclared “war on terror” it is not bound to abide by the Geneva Conventions in how it treats suspected terrorists in its custody. This bald assertion is premised on the basis that suspected terrorists don’t fit into one of the categories of the Geneva Conventions: on February 7, 2002 the White House announced that “none of the provisions of Geneva apply to our conflict with al Qaeda . . . because, among other reasons, al Qaeda is not a High contracting Party to Geneva.” Memorandum of President George W. Bush (Feb. 7, 2002), in Final Report of the Independent Panel to Review DOD Detention Operatives (Aug. 2004), Appendix C, available at http//wid.ap.org/documents/iraq/040824finalreport.pdf.
This position is completely at odds with the intent of the drafters of the Conventions, as “there is no gap in the reach of at least some forms of protections and rights of persons . . . Common Article 3 assures that any person detained has certain rights ‘in all circumstances’ and ‘at any time and in any place whatsoever’ whether the detainee is a prisoner of war, unprivileged belligerent, terrorist, or noncombatant.” Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l Law 811, 817-18 (2005). See also Outsourcing Torture, The New Yorker, February 14, 2005 (according to a former state department lawyer, “there is no such thing as a non-covered person under the Geneva Conventions. It’s nonsense. The protocols cover fighters in everything from world wars to local rebellions”).
Further, the United States position on the applicability of the Geneva Conventions “demonstrates remarkable ignorance of the nature and reach of treaties and customary international law”: first, any national of a state that has ratified a treaty is protected by its terms; second, the 1949 Geneva Conventions are a part of customary international law “that is universally applicable in times of armed conflict and, as such, protect[s] all human beings according to their terms;” third, Common Article 3 of the Geneva Conventions “provides non-derogable protections and due process guarantees for every human being who is captured, and like Common Article 1, assures their application in all circumstances.” Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l Law 811, 829 (2005).
Therefore, for the foregoing reasons, the United States is bound as both a signatory to the Geneva Conventions as well as a member of the community of nations who are bound by customary international law.
[A]ny act which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.The Torture Convention further frames this commitment to eradicate the use of torture in terms of a positive obligation to avert torture: Article 2 commands signatory nations to “take effective . . . measures to prevent acts of torture in any territory under its jurisdiction.” Article 3 specifically commands “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994).
-Shawki Salama Attiya was captured in Tirana, Albania and flown to Cairo where he suffered electric shocks to his genitals, was hung from his limbs, and kept in a cell in filthy water up to his knees. Outsourcing Torture, The New Yorker, February 14, 2005.
-Abu Zubaida was shot in the groin during his apprehension in March 2002, and “national security officials [have] suggested that Zubaida’s painkillers were used selectively.” U.S. Decries Abuse But Defends Interrogations, The Washington Post, December 26, 2002. One U.S. official involved said “in a deadpan voice, that ‘pain control [in wounded patients] is a very subjective thing.’” Id.
-Benyam Mohammed was arrested in Pakistan in April, 2002 and was flown on a U.S. government plane to a prison in Morocco and kept there for 18 months. His abductors tortured him monthly by making 20-30 cuts in his penis. “I was in agony,” he said of this mutilation, which extended all over his genitals. Additionally, “[his abductors said] it would be better just to cut it off, as I would only breed terrorists . . .”. He was also burned with some kind of liquid, as well as forced to listen to hard rock and hip hop music at high decibels for long periods. One of Them Made Cuts In My Penis; I Was In Agony, Guardian Unlimited, August 2, 2005.
-Mamdouh Habib, an Egyptian-born citizen of Australia was on vacation with his family in Pakistan when he was kidnapped by Americans and flown to Egypt where he was beaten with blunt objects, “including an object that he likened to an electric ‘cattle prod’ . . . was told that if he didn’t confess to belonging to Al Qaeda he would be anally raped by specially trained dogs . . . was shackled and forced to stand in three torture chambers: one room was filled with water up to his chin, requiring him to stand on tiptoe for hours; another chamber, filled with water up to his knees, had a ceiling so low that he was forced into a prolonged, painful stoop; in the third, he stood in water up to his ankles, and within sight of an electric switch and a generator, which his jailers said would be used to electrocute him if he didn’t confess.” Outsourcing Torture, The New Yorker, February 14, 2005.
The United States Government’s use of “extraordinary rendition” to forcibly disappear and torture suspected terrorists violates that nation’s international treaty obligations. Given the veil of extreme secrecy surrounding the extraordinary rendition program, credible news reports suggesting the same plane known to have served in this process in the past has made a large number of flights to countries with problematic human rights records in recent years, and survivors’ reports of agonizing torture and extreme cruelty, the United States government’s practice of extraordinary rendition in violation of its international treaty obligations rises to the level of “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” Complaints to the Commission on Human Rights and the Commission on the Status of Women: The 1503 Procedure of the Commission on Human Rights, available at http://www.ohchr.org/english/about/publications/docs/fs7.htm#1503. Therefore, the United States government's practice of extraordinary rendition merits consideration on the United Nations’ Commission on Human Rights 1503 agenda. This court should not allow the United States government to continue its unrepentant prosecution of “the war on terror” without any regard for those whom it terrorizes with enforced disappearances and torture.
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