Human Rights and International Law
The rendition and/or secret detention of a detainee necessarily entails multiple violations of their human rights, as codified in the national law of many states, as well as in international human rights law and international humanitarian law. Despite attempts by the Bush administration to legitimise these violations by carving out an extra-legal space within which the detainees could be held, legal experts from around the world are overwhelmingly of the opinion that these practices are illegal. In some cases they may even constitute ‘war crimes’ and ‘crimes against humanity’.
Specifically, rendition and secret detention violate the following:
- The prohibition of arbitrary detention
- The right to a fair trial
- The prohibition of enforced disappearance
- The prohibition of torture
In addition, complicity in rendition and secret detention may mean that states fall foul of international laws concerning Non-Refouelement and the requirement that states are in no way accessories to human rights violations. Indeed they have certain responsibilities to prevent those violations.
Violation of the right to liberty and security of the person and the prohibition of arbitrary arrest or detention.
Secret detention necessarily violates the rights to liberty and freedom from arbitrary detention guaranteed by Article 9 of the International Covenant on Civil and Political Rights (ICCPR).
Of particular relevance are paragraphs 9.1 and 9.4. Secret detention is not undertaken ‘in accordance with such procedures as are established by law’, and does not allow for the detainee to ‘take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful’.
The UN Working Group on Arbitrary Detention has defined secret detention as Category I, where it is ‘clearly impossible to involve any legal basis justifying the deprivation of liberty’. The UN Working Group has directly concluded that detainees held secretly within CIA prisons were victims of Category I arbitrary detention.
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Violation of the right to a Fair Trial
To the extent that persons are held secretly without an intent to promptly charge with a crime, or to inform them of any charge, or to bring before an independent tribunal where guilt/innocence can be established, the practice is in violation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR), together with Article 9. Together, these articles set out the rights of each detainee to a fair trial before the courts.
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Violation of the Prohibition of Enforced Disappearances
Every instance of secret detention is an instance of enforced disappearance, and this is explicitly outlawed by the International Convention for the Protection of All Persons from Enforced Disappearance (However, the US and other states have not signed this Convention). Article 7 makes the direct link, in law, between enforced disappearance and secret detention. When practiced on a systematic basis, enforced disappearance can amount to the most grave of crimes under international law: a ‘crime against humanity’ (see, also, Article 7 of the Rome Statute).
Article 1:
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Article 4
Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.
Article 5
The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.
Article 17
1. No one shall be held in secret detention.
2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:
( a ) Establish the conditions under which orders of deprivation of liberty may be given;
( b ) Indicate those authorities authorized to order the deprivation of liberty;
( c ) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty;
( d ) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;
( e ) Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority;
( f ) Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person's release if such deprivation of liberty is not lawful.
3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum:
( a ) The identity of the person deprived of liberty;
( b ) The date, time and place where the person was deprived of liberty and the identity of the authority that deprived the person of liberty;
( c ) The authority that ordered the deprivation of liberty and the grounds for the deprivation of liberty;
( d ) The authority responsible for supervising the deprivation of liberty;
( e ) The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;
( f ) Elements relating to the state of health of the person deprived of liberty;
( g ) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains;
( h ) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.
Violation of the prohibition of torture, and other cruel, inhuman or degrading treatment
The rendition and illicit detention of terror suspects in the ‘War on Terror’ has led to the torture, cruel, inhuman and degrading treatment and punishment of many detainees, either while held and interrogated by the CIA or by US Department of Defense personnel, or by states acting for the US. Secret detention has also been found to be a primary facilitator in the commission of acts of torture. In this context, the Human Rights Committee has stated that ‘to guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognised as places of detention and for their names and places of detention, as well as names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned’. [General Comment 20, Art 7, para. 11].
All this has occurred despite the fact that the US is a signatory to the Geneva Conventions, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Torture and cruel, inhuman or degrading treatment or punishment are all prohibited under each of these Conventions. There is no derogation from this prohibition, even in times of war.
Torture is defined by Article 1 of the UN Convention Against Torture as:
Any act by 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 or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Under Article 2 of the Convention Against Torture, each state party must take effective legislative, administrative and judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 2 of the Convention Against Torture highlights the non-derogable nature of the prohibition of torture:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
Secret Detention as Torture
Regardless of any physical treatment during the detention, secret detention itself can constitute an act of cruel, inhuman or degrading treatment – and even in some cases can constitute an act of torture. As such, the Human Rights Council have found many such cases to be in violation of Articles 7 and 10 of the International Covenant on Civil and Political Rights (ICCPR).
Article 7:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 10:
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
Non-Refoulement
As well as violating various international human rights norms and laws, rendition and secret detention result in important questions about whether states have also violated their obligations to take measures to prevent such human rights violations.
For example, under the Convention Against Torture, states have obligations to try to prevent torture by other parties. The transfer of an individual to another state where there is a risk that the individual faces torture is prohibited. The Convention Against Torture explicitly states this in Article 3:
No State Party shall expel, return ("refouler") 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.
States are also subject to non-refoulement obligations under Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance:
1. No State Party shall expel, return ("refouler"), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.
While the ICCPR does not contain an explicit clause of non-refoulement, the UN’s Human Rights Committee has interpreted Article 7 as including an obligation of non-refoulement. In its general comment on The Nature of the General Legal Obligation on State Parties to the Covenant in 2004, the Committee stated:
Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.
The US has tried to get round the non-refoulement obligation by arguing that the ICCPR only applies to individuals within the US. Article 2 states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.
The US interprets this as meaning that individuals have to be within its territory AND subject to its jurisdiction. This is at odds with the Human Rights Committee’s interpretation, which sees the Covenant as being applicable to individuals EITHER in the state’s territory OR subject to its jurisdiction. In other words, as Satterthwaite explains, there are two separate bases for the application of the norms. The first is the effective control over territory. The second is the existence of power over an individual. With regard to territory, the Human Rights Committee interprets this to mean not just the sovereign territory of a state, but also territory that is under ‘effective control’ of the state. This can include the territory of other states under military occupation, as well as territory where the state’s forces are involved in a multilateral military operation. With regard to the existence of power over an individual, the Human Rights Committee finds that the Covenant applies to anyone who is abducted or arrested by a state’s agents even if this occurs outside the state. Thus, even if the transfer of a detainee originated in territory that was not under US control, if US agents were involved, they would be in violation of the Covenant.
For an in-depth discussion of the status of rendition in international law, and US arguments in defence of rendition, see: Satterthwaite, Margaret (2007), 'Rendered Meaningless: Extraordinary Rendition and the Rule of Law', George Washington Law Review, Public Law Research Paper No. 06-36, 75. http://ssrn.com/abstract=945711
The Geneva Conventions
The Bush administration attempted to legitimise the various violations of human rights that rendition and secret detention entail by carving out an extra-legal space within which the detainees could be held. In particular, this was by denying Prisoner-of-War status to those captured in the ‘War on Terror’, and arguing, in contrast to the position of the International Committee of the Red Cross, that the Geneva Conventions do not apply to those detained.
Prisoner of War Status
Ordinarily, under Convention III, Article 4, of the Geneva Conventions, anyone belonging to the following categories and captured during armed conflict is granted Prisoner of War status:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces;
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
Denial of Prisoner of War status is illegal
Convention III, Article 5 expressly states that in cases where an individual’s status as a prisoner of war is in dispute, ‘such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal’. Therefore, the transitional detention of an individual as a prisoner of war does not automatically preclude them from access to civilian legal procedure, i.e., the knowledge of the charges against them and access to the courts to challenge and refute those charges in a fair and public trial. The Bush Administration’s definition of individuals captured in Afghanistan and Iraq as ‘enemy combatants’ due to the 'failure' of the State where they hold citizenship – an attempt to deny such prisoners their rights under the Geneva Conventions - has been found to be illegal under international humanitarian law. The Commentary on the Geneva Convention (IV) (1958, 51) states that ’every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law’.
Indeed, this was the conclusion reached by the US Supreme Court, which ruled in Hamdan v. Rumsfeld in June 2006 that detainees did have the right to pursue habeas corpus cases in civilian courts, regardless of the Detainee Treatment Act, passed by the Bush administration in December 2005 to strip the US courts of jurisdiction over habeas corpus petitions on behalf of the detainees. The Supreme Court also ruled that the military commissions, as defined under the President's 2001 Executive Order, violated military law and the Geneva Conventions.
The Geneva Conventions prohibit torture and other forms of coercion and abuse
The Geneva Conventions also prohibit many of the human rights abuses that have been perpetrated by the US and its allies in the global rendition system. For example, Convention III, Article 17 prohibits torture:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
