EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
“EXTRAORDINARY RENDITIONS:
A EUROPEAN PERSPECTIVE”
SPEECH
by Mr Olivier DUTHEILLET de LAMOTHE
(Substitute member, France)
(Cardozo School of Law, 25 September 2006 - "Bauer Lecture")
1. Extraordinary
rendition may be defined as the transfer of an individual suspected of
involvement in terrorism, captured and in the custody of American officials,
who is sent to another country often for interrogation sometimes facing torture
there.
As the term suggests this “extraordinary” practice appears to be one
form of what is an acknowledged practice-the covert rendition by US officials of individuals suspected of involvement in
terrorism to justice, i.e. for trial or criminal investigation either to
the United States
or to foreign states. What is “extraordinary” about this more recent form of
rendition is the role of torture and cruel, inhuman or degrading treatment
reportedly involved in such transfers.
2. The
news of secret CIA detention centers was circulated in early November 2005 by
the American NGO Human Rights Watch, the Washington Post and the ABC television
channel. Whereas the Washington Post did not name specific countries hosting,
or alleged having hosted, such detention centers, Human Rights Watch reported
that the countries in question are Poland and Romania.
The Council of Europe responded straight away. The President of the
Parliamentary Assembly of the Council of Europe immediately took a very firm
position and asked the Committee on Legal Affairs and Human Rights to look into
the matter without delay. The Committee did so at his meeting on November 7, 2005. The Committee appointed as rapporteur Mr. Dick Marty
from Switzerland.
The Secretary General of the Council of Europe, for this part, set in
motion the procedure established by article 52 of the European Convention on
Human Rights which allows him to launch an inquiry towards the member States.
In early 2006, the European Parliament set up a 46 members temporary
committee and instructed it to investigate the alleged existence of CIA prisons
in Europe in which terrorist suspects had allegedly been
detained and tortured.
The Committee on Legal Affairs and Human Rights of the Parliamentary
Assembly of the Council of Europe issued its report on June 12, 2006.
I - The
conclusions of the report
1. The report is based on
10 case studies of alleged unlawful inter-state transfers, involving a total of
17 individual detainees.
Those 10
cases are the following:
- Khaled El-Masri, a
German citizen of Lebanese descent, travelled by bus from his home in Germany,
to Skopje, Macedonia, in the final days of 2003. Mr. El-Masri was detained at
the Serbian-Macedonian border because of alleged irregularities with his
passport. He was interrogated by Macedonian border officials, then transported
to a hotel in Skopje where during three
weeks he was repeatedly interrogated about alleged contacts with Islamic extremists.
After 23 days of detention, Mr. El-Masri was flown to Kabul, Afghanistan. There he would be
detained for more than four months. After a hunger strike, Mr. El-Masri was
brought to meet with two American officials and a German intelligence officer. On
May 28, 2004, Mr. El-Masri was
finally flown back from Kabul to Germany. Upon his return to Germany Mr. El-Masri contacted
an attorney and related his story, thereby initiating a formal investigation by
public prosecutors.
- Six Bosnians of Algerian origin, four Bosnian citizens and two
longstanding residents, were arrested in October 2001 by order of the Supreme
Court of the Federation of Bosnia and Herzegovina and detained on remand. They were suspected
of having planned bomb attacks on the American and British embassies. On January
17, 2002, the officeof the federal prosecutor informedthe investigating magistrate at the Supreme Court that he had no reason to keep
the men in custody any longer. On that same day, the investigating magistrate
ordered the immediate release of the six men. However, on the evening of January
17, 2002, the sixmen were arrested by Bosnian police officers, and handed over to members of the
United States military forces stationed in Bosnia and Herzegovina. They were then flown to Guantanamo on January 20, 2002 from the Tuzla military base. The six men have been
prisoners in Guantanamo until the present time, that is to say for
over four years.
- Ahmed Agiza and Mohammed Alzery were two Egyptian asylum-seekers "handed
over" by the Swedish authorities to American agents who took them to Egypt, where they were tortured in spite of
diplomatic assurances given to Sweden. This case led to Sweden's being condemned by the United Nations
Committee against Torture.
- Abu Omar, an Egyptian citizen, was abducted in the middle of Milan at midday on June 17, 2003. Via the military airbases at Aviano (Italy) and Ramstein (Germany), Abu Omar was flown to Egypt, where he was tortured before being released
and re-arrested. An Italian judicial investigation established beyond all
reasonable doubt that the operation was carried out by the CIA.
- Bisher Al-Rawi and Jamil El-Banna are two British permanent residents
arrested in Gambia in November 2002 and transferred first to Afghanistan and from there to Guantanamo where they still are.
- Maher Arar, a Canadian citizen of Syrian origin, was arrested in
September 2002 at JFK Airport in New York by American agents during a stopover on
return from holiday in Tunisia. After being detained in a high-security
prison and interrogated for two weeks by the New York police, the FBI and the American immigration
service, he was allegedly transported from New Jersey airport via Washington, Rome and Amman to a prison belonging to Syrian military
intelligence. He spent more than 10 months there, during which he says he was
tortured, abused and forced to make false confessions. This case is the subject
of a very thorough investigation by a special commission in Canada.
- Muhammad Bashmila and Salah Ali Qaru were arrested in Jordan and disappeared as far as their families
were concerned. According Amnesty International investigations, they were held
in at least four secrete American detention centers, probably in 3 different
countries Djibouti, Afghanistan and somewhere in Eastern Europe.
- Mohammed Zammar, a German of Syrian origin, was suspected of having
been involved in the “Hamburg” cell of Al Qaeda and had been under police
surveillance for several years in Germany. On October 27, 2001, he is reported to have left Germany for Morocco, where he spent several weeks. When he
attempted to return to Germany, he was allegedly arrested by Moroccan
officials at Casablanca airport. Towards the end of December 2001,
he is said to have been flown to Damascus, Syria, on a CIA-linked aircraft. A detailed German
government report to the Bundestag gives a balanced version of this affair.
- Binyam Mohamed al Habashi is an Ethiopian citizen who has held
resident status in the United Kingdom since 1994. Binyam is now detained at Guantanamo Bay and has been selected as one of the first
group of ten prisoners to appear before a special United States Military
Commission. According to his testimony, Binyam travelled voluntarily to Afghanistan in 2001 and spent some time there, probably
several months, before crossing into Pakistan and seeking to return to the UK. He was arrested by Pakistani officials at Karachi airport on April 10, 2002. After interrogating him, the Pakistani
security services took him to a military airport in Islamabad and handed him over to the United States. Binyam testifies that he underwent his
first rendition on July 21, 2002. He was forced onto an aircraft and flown to
Morocco. Binyam has described various secret
detention facilities in which he was held in Morocco and tortured on numerous occasions between
July 2002 and January 2004. Binyam says he was subjected to a second rendition
on the night from 21 to 22 January 2004. He was flown from Rabat to Kabul in the early hours of January
22, 2004. Binyam Mohamed'sordeal continued in Kabul, Afghanistan, where he was held in the facility he
refers to as “the prison of darkness” for 4 months, before being transferred to
Bagram Air Base at the end of may 2004.
2. According to the
conclusions of the report, “Our
analysis of the CIA "rendition" programme has revealed a network that
resembles a "spider’s web" spun across the globe. The analysis is
based on official information
provided by national and international air traffic control authorities, as well
as other information
including from sources inside intelligence agencies, in particular the
American. This "web", shown in the graphic attached, is composed of
several landing points, which we have subdivided into different categories, and
which are linked up among themselves by civilian planes used by the CIA or
military aircraft.
These landing points are used for various
purposes that range from aircraft stopovers to refuel during a mission to
staging points used for the connection of different "rendition circuits"
that we have identified and where “rendition units” can rest and prepare
missions. We have also marked the points where there are known detention
centres (Guantanamo Bay, Kabul and
Baghdad…)
as well as points where we believe we have been able to establish that pick-ups
of rendition victims took place.
In two European countries only (Romania and
Poland),
there are two other landing points that remain to be explained. Whilst these do
not fall into any of the categories described above, several indications lead
us to believe that they are likely to form part of the "rendition
circuits”. These landings therefore do not form part of the 98% of CIA flights
that are used solely for logistical purposes, but rather belong to the 2% of
flights that concern us the most. These corroborated facts strengthen the
presumption – already based on other elements - that these landings are
detainee drop-off points that are near to secret detention centres.”
3. Two points must be
stressed:
- From a quantitative point of view, we should not lose our sense of
proportion. It would be exaggerated to talk of thousands of flights, let alone
hundreds of renditions concerning Europe and
the report itself underlines that a maximum of 2% of the CIA flights are
concerned.
- From a qualitative point of view, collectively the cases in the
report testify to the existence of an established modus operandi of rendition, put into practice by an elite,
highly-trained and highly-disciplined group of CIA agents who travel around the
world mistreating prisoner after prisoner in exactly the same fashion. The
“security check” used by the CIA to prepare a detainee for transport on a
rendition plane was described by one source in the American intelligence
community as “a 20 minutes takeout”.
The general
characteristics of this “security check” can be established from a host of
testimonies as follows. It generally takes place in a small room at the
airport, or at a transit facility nearby. The man is sometimes already
blindfolded when the operation begins, or will the blindfolded quickly and
remain so throughout most of the operation. Four to six CIA agents perform the
operation in a highly-disciplined, consistent fashion. The CIA agents don't utter
a word when they communicate with one another. The man's hands and feet are
shackled. The man has all his clothes cut from his body using knives or
scissors in a careful, methodical fashion. The man is subjected to a full-body
cavity search. The man is photographed with a flash camera. Some accounts speak
more specifically of a tranquiliser or suppository being administered per
rectum. The man is then
dressed in a nappy or incontinence pad and a loose-fitting “jump-suit” or set
of overalls. The man has his ears muffled, sometimes being made to wear a pair
of headphones. Finally, a cloth bag is placed over the man's head with no holes
through which to breathe or detect light. The man is typically forced aboard a
waiting airplane where he may be placed on a stretcher, shackled or strapped to
a mattress or seat, or laid down on the floor of the plane. In his report on
the Agiza and Alzery case, the Swedish
Ombudsman has qualified as degrading this way to treat detainees.
4. In the framework of his
inquiry, Mr. Dick Marty, rapporteur, requested an opinion of the European
Commission for democracy through Law, known as the Venice Commission, which is
a separate organ of the Council of Europe. The request concerned the two
following inter related matters.
“a) An assessment of the legality of secret detention centers in the
light of the Council of Europe member States international law obligations, in
particular the European Convention on Human Rights (ECHR) and the European
Convention for the prevention of torture. In particular to what extent is a
State responsible if- actively or passively- it permits illegal detention or
abduction by a third State or an agent thereof ?
b) What are the legal obligations of Council of Europe member States,
under human rights and general international law, regarding the transport of
detainees by other States through their territory including the airspace?”
The
Commission issued its Opinion on the international legal obligations of Council
of Europe member States in respect of secret detention facilities and
inter-state transport of prisoners during its Plenary Session on March 17 and
18 2006.
I have been one of the six rapporteurs of this opinion which I will now
develop.
II - The
opinion makes clear three points which did not raise many questions
1. As regards the concept
of “rendition”, the Commission makes it very clear that under international law
and human rights law, there are four situations in which a State may lawfully
transfer a prisoner to another State: deportation, extradition, transit and
transfer of sentenced persons for the purposes of serving their sentence in
another country.
Even if the
public debate frequently uses the term “rendition”, this is not a term used in
international law. It is only a practice. However, the European Court of Human
Rights has admitted that an atypical extradition cannot as such be regarded as
being contrary to the European Convention of Human Rights subject to its being
the result of cooperation between the States concerned and provided that the
legal basis for the order for the suspect’s arrest is an arrest warrant issued
by the authorities of the suspect’s State of origin.
2. As regards the arrest
of an individual by foreign authorities on the territory of a Member State, Article 5 ECHR protects the right to liberty
and security of person. Although this right is not absolute (see the authorized
deprivations of liberty under paragraph 1 a) to f) of Article 5), a person may
only be detained on the basis of and according to procedures set out by the
law, and the law in question must be consistent with recognized European
standards, that is inter alia
with the provisions of the ECHR. In addition, paragraph 4 of Article 5
provides for all forms of deprivation of liberty allowed under that article,
that the detainee “shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful” (habeas corpus).
Detention must be
lawful and in accordance with a procedure prescribed by law: in the European
Court of Human Rights’ view, the requirement of lawfulness means that both
domestic law and the ECHR must be respected. The possible reasons for detention
are exhaustively enumerated in Article 5 (1) ECHR. Paragraph 1 (c) of Article 5
permits “the lawful arrest or
detention of a person effected for the purpose of having committed an offence
or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so”, while paragraph (f)
of Article 5 permits “the
lawful arrest or detention of a person to prevent his effecting an unauthorized
entry into the country or of a person against whom action is being taken with a
view to deportation or extradition.” A detention for any
reason other than those listed in Article 5 § 1 is unlawful and thus a
violation of a human right.
Three
conclusions derive from these provisions.
- A State party to the European Convention on
Human Rights is presumed to exercise its jurisdiction over its whole territory.
Any arrest of a person by foreign authorities on the territory of a Council of
Europe member State without the agreement of this member State is a violation of its sovereignty and is
therefore contrary to international law. In addition, the now defunct European
Commission of Human Rights has stated that “an arrest made by the
authorities of one State on the territory of another State, without the prior
consent of the State concerned, does not only involve the State responsibility
vis-à-vis the other State, but also affects that person’s individual right to
security under Article 5 § 1”.
- Any form of involvement of a
Council of Europe member State or receipt of information prior to the arrest taking place
entails its responsibility under Articles 1 and 5 ECHR.
- The responsibility of a Council of Europe member State is engaged
also in the case that some section of its public authorities (police, security,
forces etc.) has cooperated with the foreign authorities or has not prevented
an arrest without government knowledge.
3. As regards the secret
detention centers, incomunicado detention, that is detention without the
possibility of contacting one’s lawyer and of applying to a court, is clearly
not “in accordance with a procedure prescribed by law” of any of the member States
of the Council of Europe, if alone because the detention is not subject to
judicial review. For the detainee, it is not possible to exercise his
entitlement to habeas corpus guaranteed by Article 5, paragraph 4. The
unlike possibility that such a detention is “in accordance with a procedure
prescribed by law” under the law of the foreign State by whose authorities the
detention was ordered and executed, is irrelevant for the issue of the
responsibility under the European Convention on Human Rights of the State on
whose territory it takes place.
If and in so far as incomunicado detention takes place, is made possible or
is continued on the territory of a member State of the Council of Europe, in view of its
secret character that detention is by definition in violation of the European Convention
on Human Rights and the applicable domestic law of that State.
Active and passive co-operation by a Council of Europe member State in
imposing and executing secret detentions engages its responsibility under the
European Convention on Human Rights. The European Court of Human Rights has
ruled that “the acquiescence or connivance of the authorities of a Contracting State in
the acts of private individuals which violate the Convention rights of other
individuals within its jurisdiction may engage the State’s responsibility under
the Convention”. This is even more true in respect of acts
of agents of foreign States.
If a State is informed
or has reasonable grounds to suspect that any persons are held incomunicado at foreign military bases on its territory,
despite its limited jurisdiction over foreign military bases, its
responsibility under the European Convention on Human Rights is still engaged,
unless it takes all measures which are within its power in order for this
irregular situation to end.
III - The opinion deals essentially with the transfer
of prisoners suspected of terrorism by airplane
This is both
the most interesting and the most original part of it. Why ? For two reasons.
1. It consecrates an extensive conception of
the obligation of the Council of Europe member States to prevent torture.
Torture is
prohibited by Article 3 of the European Convention on Human Rights, Article 7
of the International Covenant on Civil and Political Rights (ICCPR), the
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment and the UN Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment.
Article 3 of
the UN Convention against torture prevents State parties from “expelling,
returning or extraditing a person to another State where there are substantial
grounds for believing that he will be in danger of being subjected to torture.”
The European
Convention of Human Rights does not guarantee a right not to be extradited or
deported. However, according to the Soering doctrine of the European Court of
Human Rights, a State may be held responsible for a violation of article 3 if
its decision, permission or other action has created a real risk of a violation
of these rights by the State to which the prisoner is to be transferred.
In this context, it is worth underlining that Council of Europe member
States are under an obligation to prevent prisoners’ exposure
to the risk of torture: the
violation does not depend on whether the prisoner is eventually subjected to
torture.
The requirement of not exposing any prisoner to the real risk of
ill-treatment also applies in respect of the transit of prisoners through the territory of Council of Europe member States: member States
should therefore refuse to allow transit of prisoners in circumstances where
there is such a risk.
The situation may arise that a Council of Europe member State has
serious reasons to believe that the mission of an airplane crossing its
airspace is to carry prisoners with the intention of transferring them to
countries where they would face ill-treatment.
In the Commission's view, the territorial State is entitled to, and
must take all possible measures in order to prevent the commission of human
rights violations in its territory, including in its air space.
2. The Council of Europe member States have the means to implement
this extensive obligation to prevent torture.
International air law has a codified framework in the Convention on
International Civil Aviation (commonly referred to as the “Chicago
Convention”), signed in Chicago on 7 December 1944.
The Chicago Convention sets out in Article 1 the principle that every
State has complete and exclusive sovereignty over the airspace above its
territory, that is to say above the land areas and territorial waters adjacent
thereto.
Article 4 of the Chicago Convention provides that: “Each
contracting State agrees not to use civil aviation for any purpose inconsistent
with the aims of this Convention”.
The Chicago Convention sets out the regime for civil aircraft and civil
aviation. According to Article 3 (a), such regime does not apply to State
aircraft.
Under the
Convention, aircraft "used in military, customs and police services" are deemed to be state aircraft (Article 3
(b)). This presumption, however, is not irrebuttable. Moreover, aircraft
engaged in other state activities such as coast guard and search and rescue
could also be considered as state aircraft.
It
has generally been admitted
that, in case of doubt, the status of an airplane as “civil aircraft” or “state
aircraft” will be determined by the function it actually performs at a given
time.
As a general rule, “aircraft are recognised as state aircraft
when they are under the control of the State and used exclusively by the State
for state intended purposes.” Accordingly, the same airplane can be
considered to be “civil aircraft” and “state aircraft” on different occasions.
Civil
aircraft that are not engaged in scheduled international air services of a
State party to the Chicago Convention
are entitled to make flights into or in transit non-stop across the territory
of another State party and to make stops for non-traffic purposes without the
necessity of obtaining prior permission and subject to the right of the State
flown over to require landing. The authorities of each State party have the
right, without unreasonable delay, to search aircraft of the other State party
on landing or departure, and to inspect the certificates and other documents
prescribed by the Chicago Convention (Article 16).
State
aircraft do not enjoy the overflight rights of civil aircraft. According to
Article 3 (c), state aircraft are not permitted to fly over or land in foreign
sovereign territory otherwise than with express authorisation of the State
concerned, and in harmony with the terms of such authorisation.
Article 3 bis paragraph b) of the Chicago Convention provides that:
“[E]very
State, in the exercise of its sovereignty, is entitled to require the landing
at some designated airport of a civil aircraft flying above its territory
without authority or if there are reasonable grounds to conclude that it is
being used for any purpose inconsistent with the aims of this Convention; it
may also give such aircraft any other instructions to put an end to such
violations. For this purpose, the contracting States may resort to any
appropriate means consistent with relevant rules of international law,
including the relevant provisions of this Convention, specifically paragraph a)
of this Article.
Each contracting State agrees to publish its regulations in force regarding the
interception of civil aircraft”.
The question arises in this context of what would be the status of an
airplane registered in the flag State as civil aircraft but carrying out “State
functions” (such as special missions for the transport of prisoners) which
entered the airspace of another State without seeking a specific authorisation
or without following the applicable procedures for State aircraft.
The territorial State possesses a different course of action in respect
of the suspect airplane, depending on its status.
If the state airplane in question has presented itself as if it were a
civil plane, that is to say it has not duly sought prior authorisation pursuant
to Article 3 c) of the Chicago Convention, it is in breach of the Chicago
Convention : the territorial State may therefore require landing. The airplane
having failed to declare its State functions, it will not be entitled to claim
State aircraft status and subsequently not be entitled to immunity : the
territorial State will therefore be entitled to search the plane pursuant to
Article 16 of the Chicago Convention and take all necessary measures to secure
human rights. In addition, it will be entitled to protest through appropriate
diplomatic channels.
If the plane has presented itself as a State plane and has obtained
overflight permission without however disclosing its mission, the territorial
State can contend that the flag State has violated its international
obligations. The flag State could thus face international responsibility. The
airplane however will, in principle, be entitled to immunity according to
general international law and to the applicable treaties: the territorial State
will therefore be unable to search the plane, unless the captain consents.
However, if
the overflight permission derives from a bilateral treaty or a status of forces
agreement or a military base agreement, the terms of such treaty might be
questioned if and to the extent that they do not allow for any control in order
to ensure respect for human rights, or their abuse might be advanced. In this
respect, the Venice Commission recalls that the legal framework concerning
foreign military bases on the territory of Council of Europe member States must enable the
latter to exercise sufficient powers to fulfil their human rights obligations.
This means that Council of Europe member States may have to consider whether it
is necessary to insert new clauses, including the right to search, as a
condition for diplomatic clearances in favour of State planes carrying
prisoners. Moreover, Council of Europe member States could bring possible
breaches of the Chicago Convention before the Council of the International
Civil Aviation Organisation pursuant to Article 54 of the Chicago Convention.
Two
conclusions may be drawn from this analysis.
1. As regards the legal
technique, it is an interesting example of a combination of human rights law
and air law. One of the major issue of globalisation is the independence of the
different settings of rules to master it. For example, there is no connection
between the International Labour Organization and the World Trade Organisation.
Which means, for example, that the development of world trade can not be
conditional upon the respect of labour standards. There is no real connection
between the United Nations, the ILO and the WTO. Here, the Chicago convention may be interpreted in a way which
allows the contracting States to implement their human rights obligations and
this interpretation is consistent with the interpretation developed by the
International Civil Aviation Organisation.
2. As regards substantial
law and the war on terror, I will only quote Aharon Barak, the President of the
Israeli Supreme Court, in the decision Morcos vs Minister of Defense:
"When the cannons speak, the Muses are silent. But even when the
cannons speak, the military commander must uphold the law. The power of our
society to stand up against its enemies is based on its recognition that it is
fighting for values that deserve protection. The rule of law is one of these
values". And since we
are in New York
and since the whole contest of extraordinary renditions was launched in this
country by US press and US NGOs, I will leave the final word to Benjamin Franklin,
whose approach seems more relevant than ever, "They that can give up
essential liberty to attain a little temporary security deserve neither liberty
nor safety”.
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