Rendition: The Need to Obtain Vital Intelligence Information and To Transfer Suspected Terrorists to Countries That Practice Interrogational

Torture By: Wael Lafi

Introduction
Rendition is the extra-legal way to bring people to justice.1 The original term of rendition to justice means: The return of a fugitive from one state to the state where the fugitive is accused or was convicted of a crime.2 What was once known as rendition has become known as extraordinary rendition, which means: The transfer, without formal charges, trial, or court approval, of a person suspected of being a terrorist or supporter of a terrorist group to a foreign nation for imprisonment and interrogation on behalf of the transferring nation. When an innocent person is subjected to extraordinary rendition, it is also termed erroneous extradition. When a transfer is made to a nation notorious for human-rights violations, it may be colloquially termed torture by proxy or torture flight.3 The extreme concern with Al Qaida attacks was behind the creation of the extraordinary rendition program, operated by the CIA in 1995 during the Clinton administration.4 At this time Clinton signed an executive order that expanded the CIAs ability to render terrorists from

Alan W. Clarke, RENDITION TO TORTURE: A CRITICAL LEGAL HISTORY, RUTGERS LAW REVIEW, at 5(February, 7, 2012, 4:00 pm), http://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdf.
2

Black's Law Dictionary (9th ed. 2009), rendition.

Id.

Peter Johnston, LEAVING THE INVISIBLE UNIVERSE: WHY ALL VICTIMS OF EXTRAORDINARY RENDITION NEED A CAUSE OF ACTION AGAINST THE UNITED STATES, Journal of Law & Policy 2007, at 3. 16 J.L. & Pol'y 357.

abroad.5 This order stated: If we do not receive adequate cooperation from a state that harbors a terrorist whose extradition we are seeking, we shall take appropriate measures to induce cooperation. Return of suspects by force may be affected without the cooperation of the host government.6 Michael F. Scheuer, former CIA Chief of the Bin Laden Unit, stated that the goals of the program were to take men off the street who were planning, or had been involved in, attacks on the US or its allies and to seize hard-copy or electronic documents in their possession when they were arrested, things that Americans were never expected to read.7 Under the Clinton administration, interrogation was never the goal of this program for several reasons. This would have been a foreign intelligence or security service without the CIA present or in control, and the information, filtered by the foreign intelligence holding the individuals would never have been complete. In addition, torture would have been used to obtain information, and therefore, it might simply have been what an individual thought the CIA wanted to hear.8

Presidential Decision Directives, Memorandum from President Clinton to the Vice President and Others, THE WHITE HOUSE WASHINGTON, U.S. Policy on Counterterrorism, June 21, 1995. Last visit on feb, 7, 2012,6:00pm available at http://www.fas.org/irp/offdocs/pdd39.htm.
6

Id, at 1.

A Statement by Michael F. Scheuer Former Chief, Bin Laden Unit CIA, Extraordinary Rendition in U.S. Counter terrorism Policy The Impact on Transatlantic Relations, Statement before the House Committee on Foreign Affairs, Subcommittee on International Organizations, Human Rights, and Oversight Subcommittee on Europe.(2007) available at http://foreignaffairs.house.gov/110/sch041707.htm.
8

Id.

This does not mean that during the Clinton administration no one was sent to countries where they were likely to have faced torture. For example, Talaat Fouad Qassem was kidnaped by CIA agents in Croatia and sent to face torture in Egypt in 2003.9 After the September 11, 2001 attacks, the program of extraordinary rendition changed. After 9/11 the gloves came off.10 After the Al Qaida attacks, President Bush expanded the rendition process and extended CIA power to this program.11 From 2001 to 2005, thousands of individuals were subjected to rendition12 by transferring individuals for interrogation to countries with a record of using torture, such as Jordan, Uzbekistan, Morocco, Syria, and Egypt, all countries the U.S. had criticized for practicing torture.13 The key to winning the counter terrorism war is to obtain information to prevent future attacks from terrorist organizations. To obtain information, nearly 3,000 suspected Al Qaeda members

Supra, not 1, at 23. Supra, not 4.

10

11

Press Release, Am. Civil Liberties Union, CIA Finally Acknowledges Existence of Presidential Order on Detention Facilities Abroad (Nov. 14, 2006) last visit feb, 7, 2012, 7:30 pm. available at http://www.aclu.org/safefree/torture/27382prs20061114.html.
12

Margaret L. Satterthwaite, The Story of ElMasri v. Tenet: Human Rights and Humanitarian Law in the War on Terror, New York University Public Law and Legal Theory Working Papers. (12-22-2008). at 544. Last visit feb,7,2012, 7:30 pm. Available at http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&seiredir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%252 0satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A %2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A %252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltw p%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22marg aret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22
13

Report by Amnesty international U.S.A, Amnesty International is concerned by the practice of extraordinary renditions, 2005. Last visit feb,7,2012, 9:00 pm. Available at http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.1387629/k.F4A8/Extraordinary_Renditions__US_outsourci ng_Torture.htm.

and their supporters have been detained worldwide since Sept. 11, 2001,14 and thousands have been arrested and held with U.S. assistance in countries known for the brutal treatment of prisoners.15 The necessity to force captives to disclose information caused the CIA to do this, and this rendition raised tremendous criticism against the U.S.16 According to one official who has been directly involved in rendering captives into foreign hands, the understanding is, We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them. Some countries are also known to use mind-altering drugs, such as sodium pentathol.17 This study is not an attempt to address all forms of rendition used by the U.S. such as rendering terrorists to Guantanamo, Iraq or Afghanistan. In Part I, this study will explore the practice of extraordinary rendition from the testimony of those who have endured this practice. In Part II, it will explore extraordinary rendition in relation to international human rights law. In Part III, this study will demonstrate that, by operating the extraordinary rendition program, the United States is in violation of its obligations under international human rights law.

14

Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations; 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, Washington Post, 26 December 2002. Last visit feb,8,2012. 8:50,pm. Available at, http://www.hartford-hwp.com/archives/27a/092.html.
15 16

Id. Id. 17 Id.

I.

Testimony from Individuals Who Have Endured Extraordinary Rendition.

For a long time, the US administration and almost all officials in the United States denied that the United States has been involved in or was practicing rendition to torture,18 but the existence of the program has been documented through the first-hand testimony of post detainees.19 Also, many journalists have recorded the testimony of victims, such as Binyam Mohamed,20 Hassan Mustafa Osama Nasr,21 and Khaled El-masri.22 This paper will analyze their testimony. A- Binyam Mohamed: Binyam Mohamed is a British resident, originally from Ethiopia, who applied for asylum in Great Britain in 1994.23 In May 2001 he flew to Islamabad, using money he had saved. Because his Ethiopian passport had expired, and as an asylum seeker, he did not have a British one, he borrowed a British passport from a friend and changed the photo.24 A few weeks after his arrival in Islamabad, he went to Kabul where he learned about the 9/11 attacks while he was in the
18

In the National Security Adviser to George W. Bush in 2001, and served as the 66th Secretary of State of the United States from January 2005 As Condoleezza Rice declared. Outlawed: Extraordinary Rendition, Torture and Disappearances in the "War on Terror, documentary film, Google videos. Available at, http://video.google.com/videoplay?docid=3080182736973832540#.
19

USA: Torture and secret detention: Testimony of the 'disappeared' in the 'war on terror', Amnesty International, 3 August 2005, last visit feb, 9, 2012, 5:00 pm, available at http://www.amnesty.org/en/library/info/AMR51/108/2005/en
20

Seven Years of Torture: Binyam Mohamed Tells His Story, Andy Worthington, Investigative journalist, author, filmmaker and Guantanamo expert, last visit, feb, 9, 2012, 5:22 pm available at, http://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/
21

ELISABETTA POVOLEDO, MARK MAZZETTI, RACHEL DONADIO, News about Hassan Mustafa Osama Nasr, including commentary and archival articles published in The New York Times. Last visit feb, 9, 2012, 5:30 pm available at http://topics.nytimes.com/topics/reference/timestopics/people/n/hassan_mustafa_osama_nasr/index.html.
22

Supra, not 18. Supra, not 20. Supra not 20.

23

24

hospital.25 He decided to return to London via Pakistan, but he was turned back by officials as he tried to board a flight on April 3, because his passport looked wrong.26 A week later, when he tried again, he was detained by the authorities and taken to Landi prison.27 His nightmare began.28 He refused to talk to the FBI agent, who introduced himself to Binyam as Chuck, until they brought his lawyer.29 Chuck told him that there was no lawyer, and the law had changed. You can cooperate with us the easy way or the hard way, if you dont want to talk we are going to send you to Jordan, we cant deal with you here, the Arabs can deal with you.30 Binyam stated: For at least ten days, I was deprived of sleep. Sometimes the Pakistanis chained me from the top of the gate to the cell by my wrists from the end of one interrogation to the start of the next for about 22 hours. If I shouted, sometimes I would be allowed to use a toilet. Other times, they wouldnt let me go and I would piss myself. They had a thick wooden stick, like a kind of paddle, which they used to beat me while I was chained. Theyd beat me for a few minutes, then stop, then start again. They also carried out a mock execution. A guard put a gun to my head and said he was going to pull the trigger. They were saying, This is what the Americans want us to do.31 Binyam was then subjected to extraordinary rendition, and, as flight logs confirm, was flown from Islamabad to Rabat, Morocco on July 21, 2002.32 He endured eighteen months of torture at

25 26

Id. Id. 27 Id.

28

Id. Supra not 18. Id. Supra, not 20. Id

29 30

31

32

the hands of the American proxy torturers in Morocco, who regularly cut his penis with a razor blade.33 In January 2004, Binyam was rendered to Afghanistan, to the CIAs Dark Prison near Kabul, from which dozens of prisoners ended up in Guantnamo.34 After being moved to the US prison at Bagram Airbase, where he spent another four months, Binyam arrived at Guantnamo on a flight with nine other prisoners who had been subjected to extraordinary rendition and torture in September 2004.35 On Feb 23, 2009, Binyam Mohamed was released from Guantanamo and was sent back to the UK.36 Binyam was the first detainee released under the Obama administration.37 B- Khaled El-Masri Khaled El-Masri is a Kuwaiti national of Lebanese decent who moved to Germany in 1985 and became a German citizen in 1995.38 He was arrested by Macedonian authorities while crossing

33

'One of them made cuts in my penis. I was in agony', The Guardian, Monday 1 August 2005 19.55 EDT Article history, last visit feb, 9,2012 6:30 pm available at http://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights1
34

Supra, not 20. Id.

35

36

Binyam Mohamed arrives back in the UK after detention in Guantanamo Bay Cuba. you tube. Last visit 4/29/12(9:23 AM) available at http://www.youtube.com/watch?v=8dZoN2vBRXU&feature=related
37

Former U.S. Detainee Alleges British Complicity in Torture, Kevin Sullivan, Washington Post, Monday, March 9, 2009. Available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.html
38

El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), at 533.

the border between Serbia and Macedonia; they interrogated him and held him in a hotel room for twenty-three days.39 El-Masri learned that he was an al Qaeda terrorist suspect, and was told that, if he confessed to his involvement with al Qaeda, he would be returned to Germany.40 El-Masri refused. Later, ElMasri was blindfolded and driven to an airstrip, where he was stripped, beaten, sodomized, and then photographed.41 When he regained his sight from the flash of the cameras, he saw seven or eight men dressed in black and wearing black ski masks.42 El-Masri alleges that these men dressed him in a diaper, a tracksuit, and earmuffs, and that he was then blindfolded, shackled, and dragged to an airplane where his captors injected him with a sedative that rendered him nearly unconscious.43 El-Masri was flown to Kabul, Afghanistan, where he was kept in a prison that he claims was a CIA-run facility known as the Salt Pit.44 El-Masri made repeated demands throughout his detention to contact his family, his government, and legal counsel, but such requests were always denied.45 After 27 days without food, El-Masri states he was brought before two unmasked persons he believes were CIA agents in charge of the Salt Pit.46 These men refused to accede to El-Masri's demands to release him, to charge him with a crime, or to allow him to contact a German official.47 Although the American official

39 40

Id. Id. 41 Id 42 Id.

43

Id. Id.

44

45 46

Id. Id. 47 Supra not 18.

denied these requests, El-Masri contends that the official conceded to El-Masri that El-Masri's detention was a mistake, but that he could not agree to El-Masri's release without permission from Washington. At this point, El-Masri states he was returned to his cell where he continued his hunger strike. After ten more days without nourishment, El-Masri asserts his captors fed him forcibly by inserting tubes into his nose and his mouth through which they pumped liquid sustenance. El-Masri was held in the Afghani prison until May 28, 2004, at which point he was flown to Albania and left on the side of an empty road in the middle of the night.48 C- Hassan Mustafa Osama Nasr Hassan Mustafa Osama Nasr, an Egyptian citizen also known as Abu Omar, had been living in Milan, Italy with his family when he was reportedly abducted by the Central Intelligence Agency CIA on February 17, 2003.49 The Italian government granted Abu Omar political asylum. At the time of his abduction, the Italian government had Abu Omar under investigation for possible terrorism-related offenses.50 The Abu Omar case become known after Italian judicial authorities issued arrest warrants against CIA agents for their responsibility in his abduction.51 The warrants, which charged the agents

48

Id

49

The judge presiding over preliminary investigation, tribunal de Milan, At 2, case no. 10838/2005 R.G.N.R. available at http://www.washingtonpost.com/wp-srv/world/documents/milan_warrants.pdf
50

Id. Id.

51

with kidnapping, included detailed evidence gathered from cell phone records traced to the alleged agents, flight records, wiretap evidence, and witness statements.52 The case began with Abu Omar walking one kilometer from his home to the Viale Jenner Mosque in Milan on February 17, 2003.53 According to an eyewitness who was present at the time of the kidnapping, a bearded, Arab-looking man was walking down Via Guerzoni toward a Western-looking man in sunglasses, near a light-colored van that had parked in such a way that it obstructed the sidewalk.54 After passing the men, the witness stopped with her children on the opposite side of the street, then crossed and heard a loud sound like the slamming of a door behind her.55 According to her statement, made less than ten days after the event, when the witness turned around, she saw that the Arab man and the Western man were gone, and the van was speeding away.56 On March 2003, the Italian investigator received a communication from the American authorities, stating that Abu Omar had been relocated to an unknown Balkan location.57 The Italian authorities made little progress investigating the kidnapping until the spring of 2004, when investigators, looking into Abu Omar's potential links to terrorism, intercepted several phone calls he placed from Egypt to his wife and a colleague. In these phone calls, Abu Omar described what happened on the day of his abduction. He was stopped on the street by Italian52

CIA on Trial - 16 minute documentary trailer, journeymanpictures on Apr 8, 2010, http://www.youtube.com/watch?v=ZZ53MotCoVk&feature=related

53 54

Id. Id. 55 Supra, not 49, at 3.

56

Id. Id, at 26.

57

10

speaking men claiming to be police officers whom, after demanding his identification, sprayed chemicals into his face and forced him into the van. 58 The abductors then drove him, his mouth taped shut, for about five hours to a U.S. airbase. In a call to his colleague, Abu Omar described being beaten, tortured, and repeatedly questioned about his connections to al Qaeda, his relationship to Albanian radical Islamists, and whether he was involved in recruiting volunteers to fight against the United States in Iraq.59 The following morning, Abu Omar was placed on a military aircraft and flown to another U.S. military base, later identified as Ramstein Airbase in Germany, where he was placed on a Gulfstream executive jet and flown to Egypt.60 Egyptian officials blindfolded him and took him to a secret service building in Cairo for interrogation.61 When he refused to act as an informer, he was transported to another building and was tortured; electric shocks were administered to his genitals, and he was hung upside down. 62 Abu Omar received at least 16 court orders for his release; his detention order was repeatedly renewed by the Egyptian Minister of Interior under emergency legislation. In February 2007, Abu Omar was released from his prison in Egypt.63 As mentioned previously, extraordinary rendition is the transfer or even abducting of a person suspected of being a terrorist or supporter of a terrorist group, from State A to State B without
58

Id, at 26, 27, 28, 29,30,31,32.

59 60

Id. Id. 61 Id. 62 Id.

63

Document - Italy: The Abu Omar case, AMNESTY INTERNATIONAL MEDIA BRIEFING, 4 November 2009. Last visit feb, 16, 2012. At 5:16 pm. Available at http://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdfa31f-40b6-85e0-acaad4606277/eur300122009en.html

11

formal charges, trial, or court approval, for interrogation by State B on behalf of State A using interrogational torture.64 This was a violation of international law as we will explain in the next section of this study. II. Extraordinary Rendition in Relation to International Law The motive behind the creation of the extraordinary rendition program was, in addition to enabling U.S agencies to question suspected terrorists, to circumvent the U.S legal system.65 The U.S legal system prohibits detaining suspects in secret prisons and using enhanced interrogation tactics on U.S. territory, 66 The United States circumvented its on legal system even though international human rights law prohibits the practice of torture through several international treaties that the United States had ratified. This section will examine this practice through the provisions of international instruments that prohibit both torture and the transfer of individuals to states where they will be in danger or at risk of torture. A. The Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is the basis for civil and political rights, including the right to life, the security of ones person, the right to a fair trial, the right to a nationality, freedom of movement, and freedom of religion and expression.67 The UDHR is an aspirational declaration but also pronounces a wide variety of basic civil and political rights,

64 65

Supra not 2. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post Staff Writer The Washington Post Wednesday, November 2, 2005; Front Page A-1. Last visit 3/7/2012(10:48 AM) available at http://www.danapriestfansite.com/writings/priest01.html
66 67

Id. The Universal Declaration of Human Rights, G.A Res. 217 (III), U.N. Duc. A/777 (Dec.10, 1948).

12

although governments originally intended the UDHR to serve only as an intermediate step toward the preparation of a binding international human rights treaty.68 Article 3 of the Universal Declaration pledges the right of life, liberty and the security of person.69 Article 5 forbids torture and cruel, inhuman or degrading treatment or punishment.70 Article 6 emphasizes that everyone has the right to recognition everywhere as a person before the law.71 Denying a detainee access to judicial procedures for extradition violates Article 6, as does denying him the right to communicate with a lawyer. Also, Article 8 states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.72 Article 9 prohibits arrests without charges or with fake charges when it says: No one shall be subjected to arbitrary arrest, detention or exile.73 Extraordinary renditions also violate the right to equality and fair and public hearing by an independent and impartial tribunal, of criminal charge.74 Also, extraordinary rendition violates Article 11s principle of the right to be presumed innocent until proved guilty according to the law75 It also violates the right to freedom of movement and

68

Infra not 80, at 410,422. Supra not 67, article 3. Id, article 5. Id, article 6. Id, article 8. Id, Article 9. Id, Article 10. Id, Article 11.

69

70

71

72

73

74

75

13

the right to leave any country from Article 13, 76and the right to seek and enjoy in other countries asylum.77 A. The International Covenant on Civil and Political Rights: The Universal Declaration of Human Rights establishes a common standard of achievement for all peoples and all nations.78 The International Covenant on Civil and Political Rights (ICCPR)
79

closely takes after the first half of the UDHR.80 However, there are significant differences

between ICCPR and UDHR, with the most important for our topic being that the Covenant is a formally binding treaty and the UDHR is just an aspirational declaration.81 Therefore, Article 2(1) from ICCPR importantly states that each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction82 The language of this article recommends that a state partys obligations under this convention are only on its own territory. This theory is not absolute, however, because the Human Rights Committee has stated that a state party has obligations toward persons within its power or effective control. As the Committee stated in its general comment: This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or

76 77

Id, Article 13. Id, Article 14. 78 Supra, not 67, at preamble.
79

The International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 177, 6 ILM 368.

80

Dunoff, Ratner, Wippman. International Law Norms, Actors, Process A Problem-Oriented Approach.412. (Wolters Kluwer. Third Edition. 2010)
81

Id. Supra not,79, Article 2.

82

14

effective control of that State Party, even if not situated within the territory of the State Party.83 Therefore, states that operate extraordinary rendition programs through arrests and rendering persons to other countries shall offer all the rights to those prisoners according to the provisions of ICCPR. Article 2(1) and Article 7 specifically prohibit torture or cruel treatment as well as inhuman or degrading treatment or punishment.84 The Human Rights Committee mentioned that a state party should not extradite or expel or deport any person from its territory where there is real risk and substantive ground to believe that there will be irreparable harm or when the country knows that the person will be tortured.85 Also, Article 9 prohibits arbitrary arrest or detention on the grounds that everyone has the right to liberty and security, and no one should be deprived of his liberty.86 Article 10 requires a state party to treat its prisoners with humanity and with respect for the inherent dignity of the human person.87 The Human Rights Committee in Mansour Ahani v. Canada88 stated that The Committee emphasizes that, as with the right to life, the right to be free from torture requires not only that the State party not only refrain from torture but take steps of due diligence to avoid a threat to an individual of torture from third parties.89

83

United Nations, Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004). Last visit March 7, 2012 (7:30 pm) available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElement
84

Supra not, 79, Article 7. Supra note 83 12. Supra not 79, Article 9. Id, Article 10.

85

86

87

88

Ahani v. Canada, United Nations, Human Rights Committee, 80th Sess., Comm. No. 1051/2002, U.N. Doc. CCPR/C/80/D/1051/2002. (06/15 / 2004). Last visit March 7, 2012 ( 8:30pm) available at http://www.unhchr.ch/tbs/doc.nsf/0/34e53fc64eba40aec1256eb50027226d
89

Id, at 10.7

15

The UN special report on torture states: 90no circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, can be invoked as a justification of torture.91 It also states: A comprehensive review of interrogation methods is required to ensure that they comply with international human standards prohibiting torture and ill-treatment.92 Article 13 states that an alien lawfully in the territory of a state party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law 93 This means that an alien, according to the second part from Article 13, has the right in the case of expulsion to have a competent authority review the case. Hence, extraordinary rendition violates Article 13 because this decision was not reached in accordance with the law, and because it does not provide adequate review.94 Article 14 illustrates that the extraordinary rendition program violates the ICCPRs requirement that all persons shall be equal before the courts and tribunals.95 The detainees are not allowed to come before the courts, and in Clause (2), there

90

The UN Special Rapporteur on Torture criticizes the undermining of the non-refoulement principle and the use of Terrorism as a pretext to justify torture. State watch report. Delivered to the General Assembly, U.N. Doc. A/59/324 (Sept. 1, 2004) last visit March 7, 2012(8:40 pm) available at http://www.statewatch.org/news/2004/nov/un-torture.pdf
91

Id, at 1. Supra not 88, at 3. Supra, not 79 article 13. Supra not 88, 10.6.

92

93

94

95

Supra not 79 article 14.

16

exists the presumption of innocence and a fair hearing.96 Interrogations that take place after transfer likely violate Article 14(g).97 According to Article 4, a states party in time of public emergency may take measures derogating from their obligations under the pursuant covenant.98 This license, however, is not absolute, and the covenant does state that no derogation from articles 6, 7, 8(paragraph 1 and 2), 11, 15, 16 and 18 may be made under this provision.99 B. The International Covenant on Economic, Social, and Cultural Rights: The ICCPR and the International Covenant on Economic, Social, and Cultural Rights 100 (ICESCR) are in some respects similar.101Both of the covenants preambles were based on the UDHR, unlike the ICCPR and the ICESCR, which do not contain any clear jurisdictional limitation.102 Article 11 illustrates the right to an adequate standard of living for all persons and their families.103This means that when a state party operates an extraordinary rendition, the state

96

Id. Id. Supra not 79, Article 4. Id. International Covenant on Economic, Social and Cultural Rights, entered into force Jan. 3, 1976, 993 U.N.T.S. 3. Supra, not 80, at 453. Supra not 79, 83. Supra, not 98, article 11.

97

98

99

100

101

102

103

17

violates Article 11 and violates a persons economic, social and cultural rights as well as Article 12, which protects the rights of physical and mental health.104 C. The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatments or Punishment: Article 1 from The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture 105 as: torture means 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.106 The condition in this definition is that such pain or suffering should be inflicted by or at the instigation of or with the consent or acquiescence of public official or other person acting in an official capacity.107 Article 3 prohibits a state party from expel[ing] and return[ing] or extradite[ing] a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.108 Therefore, competent authorities [must] take into account all relevant considerations,109 for the purpose of determining whether there are grounds to believe that the person might be tortured. The United Nations Advisory Committee when it wrote The History of the Drafting of the Convention against Torture noted that Article 3

104

Id, article 12.

105

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987)
106

Id, article 1(1). Id. Id, article 3(1). Id, 3(2)

107

108

109

18

is based on Article 33 of the 1951 Geneva Convention relating to the statute of refugees.110 The drafters of the convention noted that a reservation or a declaration to Article 3 of the convention would be legally permissible.111 Importantly, the drafters of the convention discussed the situation where a state party has the obligation to extradite a person to another country according to a bilateral or multilateral agreement for the purpose of criminal prosecution.112 However, the drafters admitted that such a situation would be considered a conflict between the present convention and existing extradition treaties. Therefore, the drafters noted that where the obligations under these treaties are so absolute that they allow of no exception even in the special circumstances envisaged in article 3.113 Article 2 provides that there is no ground for the justification of torture114in any circumstances, whether it be a state of war or another public emergency.115 Article 4 provides that a state party shall ensure that all acts of torture are criminalized.116 Also, Articles 5 and 7 require each state party to extradite or prosecute accused torturers who are present in any territory under its jurisdiction.117 Moreover, Article 16 requires that Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishments which

110

Convention Relating to the Status of Refugees, entered into force Apr. 22, 1954, 19 U.S.T. 6223, 189 U.N.T.S. 150. 111 J. Herman Burgers and Hans Danelius, the united nation convention against torture, a handbook on the st convention against torture or degrading treatment or punishment, 127,( Martinus Nijhoff, 1 eds, 1988). 112 Id, at 126. 113 Id. 114 Supra not ,105, article 2(3) 115 Id, 2(2).
116

Supra not,105 article 4(1). Supra not 105, article 5,7.

117

19

do not amount to torture as defined in article 1118 According to the convention drafters, this article corresponds basically to the general obligations in Article 2 Paragraph 1.119 D. The Vienna Convention on Consular Relations: According to Article 36 (1) (b) The Vienna Convention on Consular Relations120 (VCCR), any person taken into custody by competent authorities of a member state shall without delay inform the detainee about his right to consular access.121 This convention is responsible for the protection of diplomats,122 and also assures consular access to individuals not located in their country of nationality according to Article 36. Clearly, extraordinary rendition violates the provisions of this convention. Even an occupying power is obliged by the language of Article 36.123 E. Geneva Convention Relative to the Treatment of Prisoners of War: Article 1 of The Geneva Convention Relative to the Treatment of Prisoners of War124 (POWs) illustrates that [T]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances,125 and to protect prisoners of war detained as

118 119

Supra, not 105, article 16(1) Supra, not 111, at 149. 120 Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 100-1, 596 U.N.T.S. 261.
121 122

Id, article 36 (1)(b). Id, article 3135, 4043. 123 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT, PROTECTED PERSON STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION, 11, March 18, 2004. Last visit March 8, 2012 (4:25 pm). Available at http://www.justice.gov/olc/2004/gc4mar18.pdf
124

Geneva Convention Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. 125 Id , article 1.

20

a consequence of international armed conflict.126 Article 4 defines prisoners of war as members of the armed forces members of militias127 or volunteer corps, and those of organized resistance movement.128 However, these prisoners in order to be eligible for protection must comply with four additional requirements: being commanded by a person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly; conducting their operations in accordance with the laws and customs of law.129 If prisoners do not meet these qualifications, the POW Convention does not apply to them, and they automatically acquire protected person status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.130 Article 5 states: If there was doubt that a persons referred to article 4 having committed a belligerent act and was arrested they shall enjoy the protection of present convention and their status determined by a competent tribunal.131 Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under

126

Supra not 124, article 2.

127 128

Supra, not 124, article 4(1). Supra, not 124, article 4(2) 129 Id, at 4(2) a.b.c.d.
130

Commentary, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. PARAGRAPH 4. -- PERSONS PROTECTED BY OTHER CONVENTIONS, International Humanitarian
Law - Treaties & Documents, ICRC, last visit March 8, 2012(5:50 pm) available at http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument

131

Supra, not 124, article 5.

21

such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.132 Article 13 illustrates that prisoners of war must at all times be humanely treated.133 Any act by a detaining power causing death or seriously endangering the health of prisoners is regarded as a breach of the convention,134 and any act such as torture or inhuman treatment and injury to the body or health of prisoners is considered a grave breach of the convention.135 As mentioned previously, extraordinary rendition is the transfer of an individual, with the involvement of the U.S. or its agents, to a foreign State in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment. All the international conventions and covenants have set out several relevant obligations on any State: prohibition on torture; a prohibition on cruel, inhuman, or degrading treatment; a prohibition against the transfer of an individual to another State where that individual faces the risk of torture; and a requirement to prevent, criminalize, investigate and punish acts of torture, conspiracy to torture, and aiding and abetting in acts of torture. The next section illustrates these violations to the international law. II. The Extraordinary Rendition Program Violates International Law

As cited previously, the necessity to force captives to disclose information caused the CIA to render them to countries known for brutal treatment of prisoners and this rendition raised tremendous criticism against the U.S.136 Crimes against humanity, genocide, and torture are all

132 133

Supra not 124, article 12. Supra, not 124, article 13. 134 Id. 135 Supra not 124, article 130. 136 Supra not 14.

22

examples of human rights violations as this study described in Part II. The international human rights community identified these types of crimes during the twentieth century movement to establish international human rights standards. Over time, however, extraordinary rendition has appeared as a type of human rights violation, albeit human rights conventions do not specify the practice of extraordinary rendition as an offense prohibited by name. Therefore, extraordinary rendition is a mixture of human rights violations, such as arbitrary arrest, enforced disappearance, forcible transfer, torture, denial of access to consular officials, and denial of impartial tribunals. Usually, U.S. government officials deny any involvement or abuse of international law through the extraordinary rendition program when they talk in public, but in reality they know that the countries to which they are rendering captives are abusing them.137 Part I contained testimony from individuals who have endured extraordinary rendition; Part II discussed extraordinary rendition in relation to international human rights law; now in Part III we are going to apply the facts from the testimony from Part I to the numerous international human rights standards discussed in Part II. Binyam Mohamed: Pakistani authorities arrested Binyam Mohamed without any formal charges and took him to Landi prison, to face the harshest interrogation and torture by an FBI agent.138 All the incidents that Binyam faced, from arbitrary arrest and detention to being rendered to Morocco and then Guantnamo, violated U.S obligations according to the international human rights covenants.
137

CIA's Assurances On Transferred Suspects Doubted Prisoners Say Countries Break No-Torture Pledges, Dana Priest, Washington Post, March 17, 2005; Page A01 "They say they are not abusing them, and that satisfies the legal requirement, but we all know they do." http://www.pulitzer.org/archives/6961
138

Supra not 20.

23

Article 5 from the UDHR forbids torture and cruel, inhuman or degrading treatment or punishment.139 The United States by handing Binyam to Morocco where he was tortured, failed to uphold its obligations to protect against torture and other forms of ill-treatment. Denying Binyam access to judicial procedures for extradition violates Article 6 from the UDHR, as does denying him the right to communicate with a lawyer 140. In addition, Article 9 from the UDHR prohibits arrests without charges or with fake charges141. Binyams treatment also violated the principle of the right to be presumed innocent from Article 11 of UDHR142. As mentioned, Binyam was deprived of sleep, beaten with a wooden stick while he was chained, his life was threatened, and his penis was cut with a razor blade by a Moroccan interrogator. All these treatments violate the U.S. obligation under the ICCPR143 and ICESCR.144 Article 2 (1) and
Article 7 of ICCPR specifically prohibit torture or cruel treatment as well as inhuman or

degrading treatment or punishment. Also, Article 9 of ICCPR prohibits arbitrary arrest or detention on the grounds that everyone has the right to liberty and security, and no one should be deprived of his liberty. Article 10 of ICCPR requires a state party to treat its prisoners with humanity and with respect for the inherent dignity of the human person. Article 13 provides the right in the case of expulsion for the captive to have a competent authority review the case. Hence, Binyams extraordinary rendition violated Article 13 from the ICCPR, because when the authorities made the decision to render Binyam to Morocco, there was not adequate review and,
139

Supra not 68.

140 141

Supra not 69. Supra not 71. 142 Supra not 73.
143

Supra not 77. Supra not 98.

144

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thus, it was not accordance to the law. Article 11 from the ICESCR illustrates that when a state party operates an extraordinary rendition, it violates Article 11; in addition, it violates a persons economic, social and cultural rights as well as Article 12, which protects the rights of physical and mental health.145 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibits torture as defined in Article 1.146 In addition, Article 3 prohibits a state party from expelling and returning or extraditing a person when there is a ground for believing that he will be in danger of being subjected to torture.147 The FBI interrogator informed Binyam that if he was not going cooperate with them they were going to send him to Jordan, and added that the Arabs would deal with him.148 Binyam was sent to Morocco where he faced a nightmare. They cut his penis, which furnished the grounds for apply Article 1, Article 3 and Article 2 (2), which specifically illustrates that there is no justification for torture even in a state of war or a threat of war.149 Binyam was not wanted by the Moroccan authority for any offenses.150 He was sent to Morocco solely to be questioned in connection with Al-Qaida.151

145 146

Supra not 98. Supra not 103. Id. Supra not 30. Supra not 103. Supra not 20. Id.

147

148

149

150

151

25

Moreover, Binyam was deprived of his right to be represented by a lawyer according to Article 36 (1) (b) of The Vienna Convention on Consular Relations (VCCR.)152 Also, Article 5 from The Geneva Convention Relative to the Treatment of Prisoners of War153 states: If there was doubt that a persons referred to article 4 having committed a belligerent act and was arrested they shall enjoy the protection of present convention and their status determined by a competent tribunal.154 In addition, Binyams treatment violated article 13 of (POW) convention. Khaled El-Masri: Macedonian authorities arrested El-Masri and held and interrogated him in a hotel room for twenty-three days without any formal charges. At that point, he was blindfolded, stripped, beaten, and sodomized, before they flew him to Kabul, Afghanistan, where he was kept in the prison of a CIA-run facility known as the Salt Pit.155 This treatment violated Articles 5, 6, 9 and 11 of UDHR, which prohibit torture, cruel-and-inhuman and degrading punishment, as well as arrests without charges.156 These articles also provide access to judicial procedures, communication with a lawyer, and the right to be presumed innocent until the government proves otherwise. Extraordinary rendition also violates157 Article 3 of the UDHR, which protects the right to life, liberty and the security of a person.158 Extraordinary rendition also violates these rights by abducting the captive and depriving him of liberty and security. El-Masris abduction also
152

Supra not 120.

153 154

Supra not 124. Id 155 Supra not 31.

156

Supra not 67. Supra not 49. Supra not 67.

157

158

26

violates Article 13 of UDHR, which provides that all persons have the right to leave any country and to return to their home country.159 Article 2(1) from ICCPR160 is the landmark article in this convention for several reasons. First, this article provides that a State Party is only obligated to respect and ensure the provisions of the ICCPR for individuals within its territory and subject to its jurisdiction.161 This provision, as mentioned previously, is particularly important because the counter argument from persons who conduct extraordinary rendition programs is that they never bring the detainees into their territory (the U.S. territory in the El-Masri case). That was what the Human Rights Committee stated in its general comment when it said that a state party has obligations toward persons within it power or effective control.162 Therefore, when the U.S. government used CIA agents to abduct El-Masri and extradite him to the CIA-run facility known as the Salt Pit in Afghanistan where he was held in custody, it was required as a states party to this convention to afford him the rights and protections enumerated in the ICCPR. Consequently, the United States according to the forgoing article failed to fulfill its obligations according to the ICCPR in the El-Masri case. Also, Article 9 prohibits arbitrary arrest or detention on the grounds that everyone has the right to liberty and security, and no one should be deprived of his liberty.163 Article 10 from ICCPR requires a state party to treat its prisoners with humanity and with respect and dignity of the human person. El-Masri spent his first 27 days of custody without food; he was stripped,

159 160

Supra not, 74. Supra not 79. Supra not 77. Supra not 64. Supra not 77.

161 162

163

27

beaten and sodomized.164 Also, El- Masris extraordinary rendition violates Article 13 from ICCPR because the decision to send him to Kabul was not reached in accordance with the law, and because it did not provide adequate review. Although his captors later told him that his abduction was mistaken, they told him that he could not be released without permission from Washington.165 Article 14 illustrates that extraordinary rendition violates the ICCPRs requirement that all persons are equal before courts and tribunals.166 Also, when El-Masri was abducted and tortured and experienced inhuman-and-degrading treatment, the United States violated his economic, social and cultural rights, according to Article 11 from the ICESCR 167 which protects the right of an individual to an adequate standard of living for him and his family. It also violates Article 12 from ICESCR, which protects the rights to physical and mental health. Article 2 from the CAT convention provides that there are no grounds to justify torture under any circumstances, whether it be a state of war or another public emergency.168 There are no exceptions however and the prohibition of torture is absolute. The drafters of the convention noted in the Annotation on the Provision of the Convention that under several human rights conventions states are allowed to derogate from their obligations in time of war or in other emergencies, no such derogation is allowed in respect of few fundamental rights of individual, including the right not to be subjected to torture or inhuman or degrading treatment or

164

Supra not 38.

165 166

Id. Supra not 77. 167 Supra not 81.

168

Supra not 103.

28

punishment.169 In addition to this, extraordinary rendition violates Article 1 and Article 2. The El-Masri abduction also violates Article 16, which requires a state party to prevent in any territory under its jurisdiction any kind of ill treatment provided for and defined in Article 1 from CAT. Extraordinary rendition violates the provisions of the Vienna Convention on Consular Relations.170The language of Article 36 provides that any person taken into custody by competent authorities of a member state shall without delay be informed of his right to consular access. When El Masri asked about his rights to be represented by a lawyer and to contact his embassy and family members, the interrogator told him that there was no lawyer, which violated his rights according to VCCR171 Hassan Mustafa Osama Nasr: The Italian court charged twenty-three Americans with the February 2003 kidnapping of Abu Omar who had been granted political asylum by the Italian government.172 The Abu Omar case was the first foreign governmental criminal charge filed against U.S agents.173 The case was incited by European complaints that the Bush administration has crossed legal and ethical lines

169

Supra not 92 at 124. Supra not 86. Supra not 31.

170 171

172

PETER KIEFER, Italian Minister Declines to Seek Extradition of C.I.A. Operatives, 1, April 13, 2006, The New York Times. Last visit 4/6/12(9:30 PM) Available at http://www.nytimes.com/2006/04/13/world/europe/13cia.html?ref=hassanmustafaosamanasr
173

Craig Whitlock, Summary of the Abu Omar Kidnapping Case, Washington Post Foreign Service

Tuesday, December 6, 2005;(last visit 4/1/2012-11:00 AM) available at http://www.expose-the-warprofiteers.org/archive/media/2005-2/20051206.htm

29

in dealing with Islamic extremists.174 The Abu Omar case was based on the traditional model of the extraordinary rendition program; he was abducted from by the Central Intelligence Agency (CIA) on February 17, 2003. Italian-speaking men claiming to be police officers stopped him on the street and after demanding his identification, sprayed chemicals into his face and forced him into a van. The abductors then drove him, his mouth taped shut, for about five hours to a U.S. airbase, where he were beaten, tortured, and repeatedly questioned about his connections to al Qaeda, his relationship to Albanian radical Islamists, and whether he was involved in recruiting volunteers to fight against the United States in Iraq. The agents then Abu Omar was placed on a military aircraft and flew him to another U.S. military base, later identified as Ramstein Airbase in Germany, where he was placed on a Gulfstream executive jet and flown to Egypt. Egyptian officials blindfolded him and took him to a secret service building in Cairo for interrogation. Abu Omar was wanted by the Egyptian authorities for his involvement in an extremist Islamic network.175 In addition to violating Articles 3, 6, 8, 9 and 11 of the UNHR, the Abu Omar case also violates Article 5 of the UNHR, which forbids torture and cruel, inhuman or degrading treatment or punishment.176 As mentioned previously that the United States by handing Abu Omar to the Egyptian government where he was tortured, failed to uphold its obligation to protect against torture and other forms of ill-treatment. Article 9 also provides that no one shall be subjected to
174

Id. Id. Supra not 49.

175

176

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arbitrary arrest, detention or exile.177 Moreover, The Human Rights Committee in the matter of Mansour Ahani v. Canada, stated: The Committee emphasizes that, as with the right to life, the right to be free from torture requires not only that the State party not only refrain from torture but take steps of due diligence to avoid a threat to an individual of torture from third parties.178 Egypt, which the United States had formerly criticized about its human rights record, had strangely become its best friend in the Abu Omar case. On February 25, 2004, the U.S. Department of State released its 2003 report about human rights practices and the situation in Egypt.179 This report reflected the U.S stand toward the Egyptian attitude about human rights. Its stated that Egypts human rights record remained poor.180 The security forces continued to mistreat and torture prisoners, arbitrarily arrest and detain persons, hold detainees in prolonged pretrial detention, and occasionally engaged in mass arrests.181 The local police killed, tortured, and otherwise abused both criminal suspects and other persons.182 The police continued to arrest and detain homosexuals. The Egyptian government partially restricted freedom of the press and significantly restricted freedom of assembly and association. It also placed some restrictions on freedom of religion, and moreover, domestic violence against women remained a problem.183 This report and the Abu Omar abduction or rendition to Egypt by CIA agents through the

177

Supra not 54. Supra not 69.

178

179

Country Reports on Human Rights Practices, U.S Department of States, Bureau of Democracy, Human Rights, and Labor 2003. Egypt, February 25, 2004. Last visit 4/1/2012. 12:34 PM. Available at http://www.state.gov/j/drl/rls/hrrpt/2003/27926.htm
180 181

Id. Id. 182 Id. 183 Id.

31

extraordinary rendition program displays the contradiction between the U.Ss political tune and its practice of violating its obligations under international human rights treaties under the table. Furthermore, Article 3 of the Convention against Torture184 prohibits a state party from expel[ing] and return[ing] or extradite[ing] a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.185 This article opened the door for an argument about how the United States justified its obligation and position through various reservations and understanding made by the Bush Administration when the United States ratified the convention in 1994.186The U.S reservation on Article 3 provides: That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean (if it is more likely than not that he would be tortured.) 187 The U.S argument can be read from the Consideration of Report Submitted by States Parties under Article 19 of the Convention.188 This argument, however, was based on the interpretation of the meaning of if it is more likely than not that he would be tortured. In the case of Abu Omar, the United States

184

Supra not 86.

185 186

Id. The United States reservation and Declaration: "The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary." Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment New York, 10 December 1984, United States of America signature on 18 Apr 1988 ratified on 21 Oct 1994. Last visit4/1/2012 at 2:16 PM Available AT http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en
187

Id.

188

Consideration of Report Submitted by States Parties Under Article 19 of the Convention, Initial reports of States parties due in 1995, Addendum ,UNITED STATES OF AMERICA, 15 October 1999, CAT/C/28/Add.5 9 February 2000. Available at http://www.state.gov/documents/organization/100296.pdf

32

had made it very clear that Egypt was in the lowest category with respect to human rights. Thus, there were substantial grounds to believe that he would be tortured. III. Conclusion

The U.S government violates international law by operating its extraordinary rendition program. The international community should use political pressure on the U.S to stop this program and this practice. The war counter terrorism can no longer be a motive or reason for justifying this practice. The U.S. can no longer pretend that it is not participating in torture when, as one U.S official said: We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.189 The United Nations and human rights organizations should clearly condemn the United States extraordinary rendition program and hold it responsible for torturing victims such as Binyam Mohammad and El-Masri, who are still seeking justice from the United States for being both abducted and tortured. The question of whether the international criminal court, through the office of the prosecutor, should prosecute or have the power to prosecute persons who are involved in the extraordinary rendition practice also exists. Article 7, entitled Crimes Against Humanity, of the Rome Statute of the International Criminal Court and the Establishment of the Court provides: For the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack f- Torture.190

189

Supra not 14.

190

Rome Statute of the International Criminal Court, ICC-PIDS-LT-01-002/11_Eng. Available at http://www.icccpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

33

This article emphasizes that two elements must first be established before the court can be given jurisdiction for crimes against humanity. First, the act of torture is committed as part of a widespread or systematic attack. Second, the act should be directed against any civilian population.191 For the first element or condition, widespread or systematic, the two terms widespread or systematic are disjunctive by the conjunction or. This means when an attack meets the condition of being widespread, it need not also meet the condition of being systematic.192 The court chamber of the ICC held in the matter of SITUATION IN DARFUR,
SUDAN IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL BASHIR (OMAR AL BASHIR) that the term "widespread" refers to the large-scale nature of the attack, as well as to

the number of victims, while the term "systematic" pertains to the organized nature of the acts of violence and to the improbability of their random occurrence.193 Therefore an attack to deem the term widespread should affected hundreds of thousands of individuals and took place across large swathes of the territory.194 Hence, the extraordinary rendition program has not been committed against a hundred thousand people. Therefore, this term does not give the ICC jurisdiction over crimes committed through the extraordinary rendition program. Now, we turn to the term systematic as the ICC Pre-trial Chamber I interpreted it in its decision SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE
PROSECUTOR v. Germain Katanga and Mathieu Ngudjolo Chui . The term systematic has been

191 192

Id article 7. William A. Schabas, Oxford commentaries on international law the international criminal court A Commentary on the Rome Statute. 147,148. Oxford university.(2010). 193 Prosecutor v. Omar Al Bashir, ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir. At 29. ( March,4,2009) available at http://www.iclklamberg.com/Caselaw/Sudan/Bashir/PTCI/3.pdf
194

Supra not 192.

34

understood as either an organized plan in furtherance of a common policy, which follows a regular pattern and results in a continuous commission of acts or as patterns of crimes such that the crimes constitute a non-accidental repetition of similar criminal conduct on a regular basis, 195 and the court proceeded further stating that the requirement of a systemic attack required a multiplicity of victims.196 As mentioned previously in this paper, after the Al Qaida attacks of 9/11, President Bush expanded the rendition program process and extended CIA power to this program. From 2001 to 2005, thousands of individuals were subjected to rendition by transferring them for interrogation to countries with a record of using torture, such as Jordan, Uzbekistan, Morocco, Syria, and Egypt, all countries the U.S. had criticized for practicing torture. Therefore, the court should obviously consider The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a widespread or systematic attack vis--vis this civilian population.197 From this it is clear that the extraordinary rendition program is organized and follows a regular pattern, targeting a sufficient number of victims as mentioned previously. Thus the term systematic is met; hence, we need to turn to the second condition from Article 7 that the act should be directed against any civilian
195

Prosecutor v.Germain Katanga and Mathieu Ngudjolo Chui. Decision on the confirmation of charges, at 127,(30 September 2008) available at http://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdf
196 197

Id. PROSECUTOR V. DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, at 36,( 12 June 2002) available at http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf

35

population. First, we need to define attack, which means a course of conduct involving the commission of acts of violence.198 And this attack is not limited to the use of armed force but also encompasses any mistreatment of civilian population.199 Turning back to the second element that any civilian population must be the primary object of the attack,200 the drafters of the Rome Statute also left the exact meaning of the term any civilian population undefined.201 The word any makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality.202 Furthermore, the court in the same matter proceeded further to define civilian as the first aspect to be considered. The court concluded that the targeted population must be of a predominantly civilian nature.203 According to the court, the term civilian covers all non-combatants within the meaning of common Article 3 to the [Geneva] Conventions.204 The court concluded by defining the term population as follows The requirement in Article 5 of the Statute that the prohibited acts must be directed against a civilian population does not mean that the entire population of a given State or territory must be victimized by these acts in order for the acts to constitute a crime against humanity. Instead the population element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity.205

198 199

Supra not 192, at 153. Id. 200 Id. 201 Supra not 195, at 127. 202 PROSECUTOR v. DU[KO TADI] a/k/a/ DULE, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991. At 233. (7 May 1997) available at http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf
203 204

Id, at 234. Id. 205 Id, at 238.

36

Therefore, the practice of extraordinary rendition is not isolated or random against individuals but rather committed in a systematic manner. Hence, the requirements of Article7 are applied. Also, Article 8 provides: For the purpose of this Statute, war crimes meansTorture or inhuman treatment, including biological experiments.206 According to Article 14(c) of the Rome Statute of the ICC, prosecution is permitted when [t]he Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.207 According to Article 15,[t]he Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.208 Therefore, the prosecutor of the ICC has the power and jurisdiction to prosecute crimes against humanity, such as torture, in his proprio motu investigation. If he has a reasonable basis to proceed, he shall submit to the PreTrial Chamber a request for authorization of an investigation. The question is if the state which violates the law is not party to this convention, does the ICC have jurisdiction over its territory? The language of Article 4 from the ICC statute provides The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.209 To understand this, we need to understand its two components: first, on the territory of any state party, which excludes the United States, as it is not a party to this convention, and second: by special agreement, on the territory of any other state. To understand how these components would be applied, assume that the crime of torture was committed on the territory of State A, which is party to this convention, by a person or persons from State B, which is not a party to this
206 207

Supra not 190 article 8. Supra not 190, article 14. 208 Supra not 190, article 15. 209 Supra not 190.

37

convention. The question is whether the ICC has jurisdiction over these crimes on the territory of State B, and if it does, those persons from State B will be tried as individuals. The ICC in its Decision on the Prosecutors Application for a Warrant of Arrest against JeanPierre Bemba of the SITUATION IN THE CENTRAL AFRICAN REPUBLIC210 answered the question, Whether the case against Mr. JeanPierre Bemba falls within the jurisdiction of the Court is a prerequisite for the issue of a warrant of arrest against him.211 The court emphasized that three elements or conditions must be met for the court to have jurisdiction: (i) the crimes must fall within crimes set in Article 5 from the Statute (ii); the crimes must have been committed within the timeframe illustrated in Article 11 from the statute; and (iii) the crimes must meet the criteria laid down in Article 12 of the Statute.212 The court proceeded in this issue by interpreting Article 12 Subdivision 3, and the court emphasized that, in addition, to meeting the first and second conditions to give the court jurisdiction over the crimes, they must have been committed on the territory of a State Party to the Statute or by a national of that State, or have been committed on the territory of a State which has made a declaration under article 12(3) of the Statute or by nationals of that State.213 Therefore, the court has jurisdiction over crimes committed by persons or nationals of a non-state party in the territory of a state party or on the territory of a state that has made a declaration to accept the jurisdiction of the court.214 Therefore,

210

Prosecutor v. Jean-pierre Bemba Gembo, ICC01/0501/08-10 June 2008, Warrant of Arrest. http://www.iclklamberg.com/Caselaw/CAR/Bemba/PTCIII/ICC-01-05-01-08-14-tENG.pdf
211

Id, at 7. Supra not 210 at 7,8. Id.

212

213

214

Dopo Akandy, The Jurisdiction of the international criminal court over nationals of non-parties: legal basis limits. 1,2.( Claus Kre and Philippa Webb ) 1 March 2012. Available at http://jicj.oxfordjournals.org/content/1/3/618.full.pdf+html

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the United States by opposing ICC jurisdiction over its nationals without consent 215 sought to protect its nationals by adopting legislation restricting cooperation with the ICC, and entering into an agreement with other states to prohibit the transfer of U.S nationals to the ICC.216 Hence, with respect to the counterargument that the ICC does not have universal jurisdiction over a non-state party without its consent,217 one of the reasons behind the creation of the ICC was to put an end to impunity for perpetrators of these crimes and, thus, to contribute to the prevention of such crimes.218 Thus, by subjecting those who created and are running the extraordinary rendition program to ICC jurisdiction as individuals, the international community and international organizations, in addition to non-governmental organizations involved in human rights issues, can pressure them to put an end to this practice.

215

Id.

216 217

Id. MICHAEL P. SCHARF, THE ICCS JURISDICTION OVER THE NATIONALS OF NON-PARTY STATES: A CRITIQUE OF THE U.S. POSITION. 76. (2001) available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1201&context=lcp
218

Supra not 190, Preamble of Rome Statute.

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