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CHAPTER 2 EXTRAORDINARY RENDITION AS OPPOSED TO OTHER ILLEGAL EXPULSION METHODS;
Since the charge of resorting to extraordinary rendition as an anti-terror measure after the 9/11 attacks was mainly levelled at the Bush Administration, his remark -which can shed some light on the phenomenon of extraordinary rendition discussed below – is truly ironic, coming from Donald Rumsfeld, US Defence Secretary during the era of Ford and George W. Bush.2 Rumsfeld explains that there are certain things in this world that are clearly evident to us as incontrovertible fact, things we absolutely know to be true3 (for example: the sky is blue, the sun rises in the East and sets in the West). Then there are things of which we have conscious knowledge and things of which we consciously lack knowledge, and yet other things whose existence we are not aware of and are not aware of our ignorance about them.4 Until recently extraordinary rendition fell into this last category, being an unknown unknown, which is to say that the world at large was unaware of its existence and had no inkling that such a phenomenon might even exist, let alone what its consequences might be.After 9/11 the media shocked the public when it uncovered that states, especially the US, used illegal methods to bring suspected terrorists within the jurisdiction of certain countries.5 Although the US seemed to be the biggest culprit, other governments assisted in the capture, detention, interrogation and torture of these suspected terrorists,6countries.5
Although the US seemed to be the biggest culprit, other governments assisted in the capture, detention, interrogation and torture of these suspected terrorists,6 known unknown.
The existence of the practice and its use for the illegal capture, detention and torture of suspected terrorists is common cause at this juncture.8 However, since the practice is largely shrouded in secrecy,9 given its known purpose to huddle captives away from public scrutiny and the oversight of the law, little is known and understood about it, with the result that a severe lack of conclusive evidence about the phenomenon further aggravates the conditions under which the struggle against it has to be waged.10 It is important to note that although the main focus is on the use of extraordinary rendition by the U.S., other countries are also involved,11 and since key elements of extraordinary rendition would not be possible without their assistance it stands to reason that such assistance should be investigated with a view to its being criminalised.12 This chapter will centre on the description of extraordinary rendition and an overview of its history and development, keeping in mind that the main focus will be on the US, that is to say the history and development of this practice as a (US) home-grown product will be reviewed in some detail.
Extraordinary rendition
“We also have to work, through sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here needs to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be valid for us to use any means at our disposal, basically, to achieve our objective.” United States Vice President: Dick Cheney13 Exploratory reading shows that academics, writers and legislatures are not handling extraordinary rendition appropriately.14 There is a general tendency to try and fit its characteristics into the definitions of other forms of illegal expulsion, such as disguised extradition, abduction and other forms of irregular rendition. The reason for this misrepresentation is that the nature of the phenomenon and its implications are not understood, not least because no formal definition has been generated in law to shape and authenticate the meaning. Various writers have attempted to describe or define extraordinary rendition for purposes of their own work, but they never fail to stress that there is no formal definition.1 Extraordinary rendition is a breed apart from all other illegal expulsion and/or rendition methods and is informed by a hybrid theory16 which needs to be thoroughly perused and taken into account in formulating a cogent definition of the phenomenon. The unconscionable range of consequences arising from extraordinary rendition has led to the writer’s conviction that this practice needs to be criminalised under international law. However, in the absence of a formal definition of the practice that will stand up in court the criminalising process would have no leg to stand on, so to speak. The first step towards understanding and defining extraordinary rendition would be to elaborate a detailed description of the phenomenon with all its ramifications.Extraordinary rendition17 is a process that consists of various phases and cannot be defined as a mere singular illegal act. The first phase is the wilful taking of suspected terrorists into custody through illegal means such as abduction, followed by forcible detention and transportation under the induced influence of drugs,18 to facilities that are well-nigh untraceable at undisclosed destinations19 where torture will be used as an interrogation technique.20 Public scrutiny and the oversight of the law cannot reach them, with no assurances required from the receiving state.21 The suspected terrorists are captured by state agents, or agents acting under the guise of pseudolegality (i.e. purporting to act under the aegis of the US, but hailing from a variety of countries whose governments have invested them with powers of dubious legality to capture, detain, hold for questioning,22 transfer and/or torture the suspects thus detained)23 without following due legal process (e.g. allowing suspects to access legal counsel).24 After transfer the suspects are detained indefinitely without trial, and the governments involved deny their involvement and any knowledge of the state of wellbeing of the detainees.25 No access to humanitarian aid groups or legal representation is allowed throughout and after such detention.26 The last phase of extraordinary rendition is the lack of justice for released victims as states that are sued take refuge behind the defence of state secrecy.27 In light of the above extraordinary rendition is clearly not just a singular term to define one illegal act, but rather an entire process comprising a concatenation of interlocking phases that individually and collectively contribute to the illegal nature of extraordinary rendition as a whole, that is to say, each phase is fraught with illegality in its own right and confirms and compounds the illegality of the whole. It cannot be reduced to a single act but is a process comprising of a complex web of illegality. The difference between traditional expulsion and rendition (e.g. extradition) on the one hand, and extraordinary rendition on the other is that the latter is entirely beyond the pale in a dark underworld where the protective framework of the rule of law, international or domestic, and respect for human rights in the international sphere does not apply, this is in contrast to traditional methods which are clearly defined and subject to legal process.
History and evolution of extraordinary rendition
The earliest alleged use of extraordinary rendition was reported during the Reagan Administration in 1986.28 Although it does not embody all the elements of the extensive procedure of extraordinary rendition known today, the foundation was definitely laid during this administration. President Reagan signed directives enabling and allowing “renditions to justice”, but only from countries where America could not secure surrender through extradition treaties.29 Through the explanation and description of extraordinary rendition it will become clear that extradition treaties, whether they exist or not, are of no consequence where extraordinary rendition is concerned.
List of abbreviations
Summary
Introduction
Chapter 1: Traditional methods of expulsion and rendition under international law
1.1 Extradition
1.1.1 Factors that obstruct extradition
1.1.2 Human rights considerations in cases of extradition
1.1.3 Issues related to extradition
1.2 Deportation
1.3 Other legal methods of expulsion
1.3.1 Military rendition
1.3.2 Asylum
1.4 Conclusion
Chapter 2: Extraordinary rendition as opposed to other illegal expulsion methods
2.1 Extraordinary rendition
2.2 History and evolution of extraordinary rendition
2.3 Other forms of illegal expulsion and/or rendition
2.3.1 Disguised extradition
2.3.2 Abduction.
2.3.3 Responsibility of the state in matters of illegal expulsion and/or rendition
2.4 Conclusion
Chapter 3: Issues created by extraordinary rendition
3.1 Disrespect for the rule of law
3.2 Secret facilities and arbitrary detention
3.3 Lack of accountability and transparency
3.4 Violation of state sovereignty
3.5 Torture and other forms of cruel, inhuman and degrading treatment or punishment
3.5.1 Case studies
3.6 Conclusion
Chapter 4: Legal regimes applicable to extraordinary rendition
4.1 International Humanitarian Law
4.1.1 International armed conflict
4.1.2 Non-international armed conflict
4.1.3 Special consideration of “unlawful combatants” in the Global War on Terror
4.1.4 Special debate on detention in IHL and IHRL
4.2 International Human Right Law
4.2.1 Customary International Law
4.2.2 International Human Rights Treaties
4.2.3 Convention on Enforced Disappearances
4.4 Conclusion
Chapter 5: Is the Global War on Terror a new type of war?
5.1 Introduction
5.2 New type of war?
5.3 Is there a gap in IHL?
5.4 Expanding the traditional parameters of warfare
5.4.1 Asymmetrical warfare
5.5 Conclusion
Chapter 6: Criminalising extraordinary rendition
6.1 Introduction
6.2 The International Criminal Court
6.2.1 Jurisdiction of the ICC
6.2.2 Immunity to criminal liability before the ICC
6.3 The right of the victim to redress
6.4 The special issue of criminal responsibility incurred by states
6.5 US concerns regarding the Rome Statute of the International Criminal Court
6.6 International crimes in terms of the ICC Stature
6.6.1 Jus cogens norms and erga omnes obligations
6.6.2 Categories of international crimes in terms of the ICC Statute
6.7 Alternative international tribunals
6.7.1 Inter-American Court of Human Rights
6.7.2 International Court of Justice
6.8 Foreign government responsibility for extraordinary rendition
6.9 Conclusion
Conclusion
Bibliography
