United Nations Commission on Human Rights

Transkript

Treaties and Commission Branch
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
VIA FEDEX
November 23, 2005
Dear Excellencies:
I hereby file this Complaint against the United States Government for its practice of socalled Extraordinary Renditions by its Central Intelligence Agency (C.I.A.) with the United
Nations Commission on Human Rights for action under the 1503 Procedure. I am joined in this
1503 Complaint by Lawyers Against War, Lawyers Rights Watch Canada, which is in
Consultative Status with ECOSOC. A recent analysis of the extraordinary threat to human rights
presented by this U.S. governmental policy of “extraordinary renditions” by its C.I.A. has just
been documented by Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington
Post, Nov. 2, 2005, a copy of which is attached to this letter. I hereby incorporate this
Washington Post article as an integral part of our 1503 Complaint.
According to some of the estimated 150 extraordinary rendition victims since 11
September 2001, U.S. government officials kidnap their victims and “render” them into the
hands of governments equally untroubled with treaty obligations and the necessities of humane
treatment. Victims have been subjected to electrical shocks, water torture, mutilation, threatened
with dogs, extreme sleep deprivation, and even the insertion of limbs into boiling water, etc.
Several deaths of such rendition victims have already been reported by reputable sources.
This practice constitutes torture, cruel, inhuman and degrading treatment and therefore
stands in violation of the Convention Against Torture, the International Covenant on Civil and
Political Rights, and the Third and Fourth Geneva Conventions. In addition, the U.S.
government’s policy and practice of “extraordinary renditions” also involves both the “enforced
disappearance of persons” and “torture,” as well as being “widespread” and “systematic.” It
therefore constitutes ongoing “crimes against humanity” as defined by Article 7(1)(f) and Article
7(1)(i) of the Rome Statute for the International Criminal Court.
For these reasons, the U.S. government’s policy and practice of “extraordinary
renditions” by its C.I.A. rises to the level of “a consistent pattern of gross and reliably attested
November 23, 2005
Page 2
violations of human rights and fundamental freedoms.” Complaints to the Commission on
Human Rights and the Commission on the Status of Women: The 1503 Procedure of the
Commission on Human Rights. Therefore, this practice must be officially enjoined and requires
consideration by the United Nations Commission on Human Rights under the 1503 Procedure.
Furthermore, due to the urgency and gravity of this human rights situation, we respectfully
request that the Commission expedite its normal procedures and act immediately to terminate
these ongoing Crimes Against Humanity by the Central Intelligence Agency of the United States
Government.
In this regard, the C.I.A. has always been a “law” into itself. The C.I.A. has always
functioned out of the control of United States courts. United States courts have routinely applied
the judicial doctrines of “political question,” “national security,” and “state secrets” in order to
avoid holding the C.I.A. accountable to any Rule of Law, including international treaties, human
rights, U.S. domestic criminal statutes, and the United States Constitution itself. Under United
States law and precedents, the C.I.A. has longstanding “impunity” to commit international and
domestic crimes, war crimes, and grave violations of human rights. Hence there are no effective
domestic remedies to be exhausted here in the United States with respect to the C.I.A. in general
and in particular concerning its policy and practice of “extraordinary renditions” since 11
September 2001. For that precise reason, we are turning to the U.N. Commission on Human
Rights to take prompt, adequate, and effective action to terminate the U.S. government’s policy
and practice of “extraordinary renditions” that threatens to negate the entirety of the international
legal regime for the protection of human rights established by the United Nations Charter, the
Universal Declaration of Human Rights, and the numerous other international human rights
treaties mentioned above.
We look forward to hearing from your at your earliest convenience.
Please accept Excellencies the assurance of our highest consideration.
__________________________
Francis A. Boyle
Professor of International Law
Board of Directors, Amnesty International
USA (1988-92)
Attachments
2
ICC Complaint.Bush.PR
INTERNATIONAL CRIMINAL COURT COMPLAINT FILED AGAINST BUSH,
CHENEY, RUMSFELD, TENET, RICE AND GONZALES; INTERNATIONAL ARREST
WARRANTS REQUESTED
Champaign, U.S.A./The Hague, Netherlands (19 Jan 2010). -- Professor Francis A. Boyle of the
University of Illinois College of Law in Champaign, U.S.A. has filed a Complaint with the
Prosecutor for the International Criminal Court (I.C.C.) in The Hague against U.S. citizens
George W. Bush, Richard Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice, and
Alberto Gonzales (the “Accused”) for their criminal policy and practice of “extraordinary
rendition” perpetrated upon about 100 human beings. This term is really their euphemism for the
enforced disappearance of persons and their consequent torture. This criminal policy and
practice by the Accused constitute Crimes against Humanity in violation of the Rome Statute
establishing the I.C.C.
The United States is not a party to the Rome Statute. Nevertheless the Accused have
ordered and been responsible for the commission of I.C.C. statutory crimes within the respective
territories of many I.C.C. member states, including several in Europe. Consequently, the I.C.C.
has jurisdiction to prosecute the Accused for their I.C.C. statutory crimes under Rome Statute
article 12(2)(a) that affords the I.C.C. jurisdiction to prosecute for I.C.C. statutory crimes
committed in I.C.C. member states.
The Complaint requests (1) that the I.C.C. Prosecutor open an investigation of the
Accused on his own accord under Rome Statute article 15(1); and (2) that the I.C.C. Prosecutor
also formally “submit to the [I.C.C.] Pre-Trial Chamber a request for authorization of an
investigation” of the Accused under Rome Statute article 15(3).
For similar reasons, the Highest Level Officials of the Obama administration risk the
filing of a follow-up Complaint with the I.C.C. if they do not immediately terminate the
Accused’s criminal policy and practice of “extraordinary rendition,” which the Obama
administration has continued to supplement.
The Complaint concludes with a request that the I.C.C. Prosecutor obtain International
Arrest Warrants for the Accused from the I.C.C. in accordance with Rome Statute articles 58(1)
(a), 58(1)(b)(i), 58(1)(b)(ii), and 58(1)(b)(iii).
In order to demonstrate your support for this Complaint you can contact the I.C.C.
Prosecutor by letter, fax, or email as indicated below.
ICC Complaint.Bush.PR
THE UNITED STATES GOVERNMENT’S PRACTICE OF “EXTRAORDINARY
RENDITION” REPRESENTS A CONSISTENT PATTERN OF GROSS AND RELIABLY
ATTESTED VIOLATIONS OF HUMAN RIGHTS
AND THEREFORE
WARRANTS CONSIDERATION BY THE UNITED NATIONS COMMISSION ON HUMAN
RIGHTS UNDER THE 1503 PROCEDURE
Submitted by
Professor Francis A. Boyle
And
Lawyers Against War
Lawyers Rights Watch Canada
(In Consultative Status with ECOSOC)
3220 West 13th Avenue
Vancouver, British Columbia
Canada V6K 2V5
23 November 2005
OF COUNSEL:
Extraordinary Rendition Paper.doc
Charlotte Delano Bales
2
TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………………………………………………………3
QUESTIONS PRESENTED……………………………………………………………………………………………………5
BACKGROUND……………………………………………………………………………………………………………………………6
SUMMARY OF THE ARGUMENT………………………………………………………………………………………13
ARGUMENT………………………………………………………………………………………………………………………………15
I. The United States government is bound by at least
three international obligations not to engage in the
practice of torture or cruel, inhuman or degrading
treatment.
A. The United States government is bound by the
terms of the Convention Against Torture
(hereinafter “Torture Convention”), the
International Covenant on Civil and Political
Rights (hereinafter ICCPR), and the Third and
Fourth Geneva Conventions.
B. The United States’ international treaty
obligations forbid the use of torture or
cruel, inhuman or degrading treatment in the
strongest terms.
II. The United States government remains bound by
these obligations regardless of where torture is carried
out, the citizenship of the torturees/torturers, or claims
of ignorance as to the treatment of suspects in U.S.
custody.
A. The U.S. treaty obligations forbidding
torture apply to the interrogation of nonU.S. citizens turned over to other
governments for interrogation outside the
U.S.
B. Willful blindness to the torture of suspected
terrorists once they leave either U.S. soil
or U.S. custody can be no defense to any of
that government’s obligations pursuant to
international agreement.
III. The current United States practice of
“extraordinary rendition” violates all of the
aforementioned international obligations not to engage in
the practice of torture or cruel, inhuman or degrading
treatment.
3
A. Reports of the techniques used in
extraordinary renditions rise to the level or
torture as defined under the Torture
Convention.
B. In light of the United States government’s
knowledge of the tortuous practices of
governments to which it extraordinarily
renders suspects, the United States government
has the requisite “substantial grounds for
believing” that surrendered suspects will be
tortured under the Torture Convention.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
TABLE OF AUTHORITIES
Beazley
Ehrlich
Kennett
U.S. v.
U.S. v.
Cases
v. Johnson, 242 F.3d 248 (2001).
v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004).
v. Chambers, 55 U.S. 38 (1852).
Davis, 905 F.2d 245 (9th Cir. 1990).
Rasheed, 802 F. Supp. 312 (D. Haw. 1992).
Treaties
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51,
U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994), (adopted by the
United States on November 20, 1994) [hereinafter Torture
Convention].
International Covenant on Civil and Political Rights, G.A. Res.
2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316
(1966), 6 ILM 360 (1967), (adopted by United States June 8,
1992).
Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into
force Oct. 21, 1950).
Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516
(entered into force Oct. 21, 1950).
Vienna Convention on the Law of Treaties, May 23, 1969, art. 19,
1155 U.N.T.S. 331
Constitutional Provisions
U.S. Const. art. VI, §2, cl. 2.
4
News Reports
Editorial: Legislation Would Tell World U.S. Supports Torture:
Would You Trust the Word of Syria, Jordan, Morocco or Egypt?,
Chicago Sun-Times, October 23, 2004
Halt C.I.A Shuttle Service, Milwaukee Journal Sentinel, March
24, 2005.
Meet the Press, (NEB television broadcast, September 16, 2001).
On Language, New York Times, June 20, 2004 . . . . . . . . . . .
One of Them Made Cuts In My Penis; I Was In Agony, Guardian
Unlimited, August 2, 2005.
Outsourcing a Real Nasty Job, U.S. News & World Report, May 23,
2005.
Outsourcing Torture, The New Yorker, February 14, 2005 . . . . .
Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York
Times, March 6, 2005.
Renditions Cast Their Shadow, Washington Times, March 21, 2005.
Revealed: Western Nations That Send Terr or Suspects to
Torturing Regimes, Independent, April 15, 2005
Sixty Minutes (CBS television broadcast, March 6, 2005)
Sweet Land of Liberty: Torture Doublespeak, Secret Orders and
Torture Air, Incorporated, Counterpunch.org, April 9, 2005 . .
U.S. Decries Abuse But Defends Interrogations, Washington Post,
December 26, 2002 . . . . . . . . . . . . . . . . . . . . . . .
World News Tonight (ABC television broadcast, March 7, 2005).
Statutes
18 U.S.C.A. §3181 et seq.
United Nations Documents
General Comment on Issues Relating to Reservations Made upon
Ratification or Accession to the Covenant or the Optional
Protocols Thereto, or in Relation to Declarations Under
Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm. 53d
Sess. 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995)
Complaints to the Commission on Human Rights and the Commission
on the Status of Women: The 1503 Procedure of the
Commission on Human Rights, available at
http://www.ohchr.org/english/about/publications/docs/fs7.ht
m#1503.
Books
Black’s Law Dictionary, 8th Ed., 2004.
Jordan J. Paust, International Law as Law of the United States
368 (1996)
Secondary Sources
5
24 A.L.R. Fed. 940
Model Penal Code 2.02(7).
16 Am. Jur. 2d Con. Law §41
Charles H. Dearborn III, The Domestic Legal Effect of
Declarations That Treaty Provisions Are Not Self Executing,
57 Tex. L. Rev. 233, 233 (1979).
Thomas A. Hagemann and Joseph Grinstein, The Mythology of
Aggregate Corporate Knowledge, A Deconstruction, 65 Geo.
Wash. L. Rev. 210, 247 n.69 (1997).
Louis Henkin, U.S. Ratification of Human Rights Covenants: The
Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346-8
(1995).
Douglas N. Husak and Craig A. Callendar, Willful Ignorance,
Knowledge, and the ‘Equal Culpability’ Thesis: A Study of
the Deeper Significance of the Principle of Legality, 1994
Wis. L. Rev. 29
Jordan J. Paust, Avoiding ‘Fraudulent’ Executive Policy:
Analysis of on Civil and Political Rights, 42 DePaul L.
Rec. 1257 (1993).
Jordan J. Paust, Executive Plans and Authorizations to Violate
International Law Concerning Treatment and Interrogation of
Detainees, 43 Colum. J. Transnat’l Law 811, 817-18 (2005).
William A. Schabas, Invalid Reservations to the International
Covenant on Civil and Political Rights: Is the United
States Still A Party?, 21 Brook. J. Int’l L. 277 (1995).
David Sloss, The Domestication of International Human Rights:
Non-Self-Executing Declarations and Human Rights Treaties,
24 Yale J. Int’l L. 129, 133 (1999).
United States Government Publications
Final Report of the Independent Panel to Review DOD Detention
Operatives (Aug. 2004), Appendix C, available at
http//wid.ap.org/documents/iraq/040824finalreport.pdf.
U.S. Department of State, Country Reports on Human Rights
Practices, available at
http://www.state.gov/g/drl/rls/hrrpt/2004.
138 Cong. Rec. S4781-84 (1992).
136 Cong. Rec. S17, 492 (1990).
QUESTIONS PRESENTED
1.
Whether the United States government is bound not to engage
in the use of cruel, inhuman or degrading treatment due to
6
its status as a signatory to the Torture Convention, the
ICCPR, and the Third and Fourth Geneva Conventions.
2.
If so, whether the United States government remains bound
by these international treaty obligations not to engage in
the use of cruel, inhuman or degrading treatment when
extraordinary renditions are conducted outside its’
borders, by and/or on non-U.S. citizens, and amidst
government claims of ignorance of the treatment of suspects
once they leave the custody of the United States
government.
3.
Whether the United States government’s use of so-called
“extraordinary rendition” procedure constitutes cruel,
inhuman or degrading treatment and should therefore be
proscribed.
4.
Alternatively, whether the United States governmentacknowledged uncertainties associated with the
extraordinary rendition process precludes its use as a
legal investigatory tool.
BACKGROUND
“We don’t kick the [expletive] out of them.
We send them
to other countries so they can kick the [expletive] out of
them.”
7
-
Official directly involved in rendering captives into
foreign hands, quoted in The Washington Post, December 26,
2002.
The Evolution of the Term and Its’ Practice
The term “extraordinary rendition” as it has become known
in recent years, is, in the words of one recent report, “a
deliberately bland bureaucratic euphemism.”
Outsourcing a Real
Nasty Job, U.S. News & World Report, May 23, 2005.
The term has
been used since the late 1970’s, according to a former member of
the United States Marshals Service, to describe when “we would
go overseas and kidnap fugitives and bring them back to the
U.S.”
On Language, New York Times, June 20, 2004.
Yet since
the 1970s, the term’s meaning seems to have reversed: in 2004
the Associated Press defined it as “the covert practice of
expelling subjects to countries known to use torture to extract
information.” Id.
The customary and internationally recognized channel for
handling disputes over international criminal custody is the
practice of extradition.
Black’s Law Dictionary defines
extradition as “the official surrender of an alleged criminal by
one state or nation to another having jurisdiction over the
crime charged; the return of a fugitive from justice, regardless
of consent, by the authorities where the fugitive resides.”
8
Black’s Law Dictionary, 8th Ed., 2004.
Extradition is a process
regulated by a complex web of international treaties, either
bilateral or multilateral.
Generally these treaties require
countries seeking extradition to make minimum showings of the
seriousness of the crime, the strength of the case against the
individual to be extradited, the status of the accusation as a
crime in both countries, the fairness of a trial in the
receiving country, and the proportionality of the likely penalty
to the crime.
See 24 A.L.R. Fed. 940; 18 U.S.C.A. 3181 et seq.
In contrast, the former United States Marshal described
extraordinary rendition as an end-run around failed extradition
attempts: “after extradition attempts fail, extraordinary
rendition could range from luring a fugitive to a friendly
country, or ‘an outright snatch.’
On Language, New York Times,
June 20, 2004.
In terms of the recent past, the Clinton administration
pioneered the use of extraordinary renditions in response to the
bombings at the U.S. embassies in Kenya and Tanzania in 1998 by
suspected Al-Qaeda operatives.
According to Michael Scheuer, a
former CIA counter-terrorism expert who helped establish the
practice of extraordinary rendition, the program was “‘begun in
desperation’” in order to “‘detect, disrupt, and dismantle’” Al
Qaeda operations.
14, 2005.
Outsourcing Torture, The New Yorker, February
While Scheuer’s group obtained an indictment against
9
Osama bin Laden which would have allowed U.S. agents to bring
him to the United States for trial, they were concerned that the
transparency required by the judicial system would force
disclosure of their intelligence sources and methods.
Id.
Additionally, in the United States the State Department could
obstruct the CIA’s plans, such as when they refused to allow a
joint CIA/FBI undertaking to question one of bin Laden’s cousins
in the United States because he held a diplomatic passport.
Id.
These concerns with judicial transparency and intragovernmental
obstacles led Scheuer and his CIA group to conclude that “‘we
had to come up with a third party.’”
Id.
The ideal third-party for these purposes was Egypt, due to
it’s status as a U.S. ally and its police force’s reputation for
brutality. Id.
Egypt embraced the rendition program when it was
proposed in 1995, due to a few key facts that allied American
and Egyptian interests: Egypt is both a substantial recipient
U.S. foreign aid, Egyptian President Hosni Mubarak’s prime
political enemies were radical Islamists, and many senior AlQaeda operatives were, and are, Egyptian. Id.
However, while the roots of today’s extraordinary
renditions were developed in the mid-1990s, at that time the
Clinton administration strongly urged the intelligence services
involved “to respect lawful boundaries in interrogations,” even
going so far as to “cut off funding and cooperation with the
10
directorate of Egypt’s general intelligence service” due to
torturing of suspects.
U.S. Decries Abuse But Defends
Interrogations, Washington Post, December 26, 2002.
In examining the history of extraordinary rendition, it is
critical to note that there is a very clear division between
extraordinary renditions conducted before and after the
terrorist attacks of September 11, 2001.
Before these attacks,
“the CIA had been authorized by presidential directive to carry
out renditions, but under much more restrictive rules.”
Id.
For instance, “the transfers of individual prisoners required
review and approval by interagency groups led by the While
House, and were usually authorized to bring prisoners to the
United States or other countries to face criminal charges.”
Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York
Times, March 6, 2005.
Further, these suspects subjected to
extraordinary rendition prior to September 11, 2001 generally
already had outstanding foreign arrest warrants to their name.
Outsourcing Torture, The New Yorker, February 14, 2005.
The
former director of the CIA has testified that there were about
70 renditions prior to September 11, all authorized by the White
House. Rule Change Lets C.I.A. Freely Send Suspects Abroad, New
York Times, March 6, 2005.
However, since September 11, 2001,
the extraordinary rendition program has expanded from its
original form “beyond recognition” into what a former CIA
11
official now deems “‘an abomination.’” Outsourcing Torture, The
New Yorker, February 14, 2005.
The post-9/11 shift in the U.S. Government’s use of
extraordinary rendition can be observed in Vice President Dick
Cheney’s comments made a few days following the attacks:
A lot of what needs to be done here will have to be done
quietly, without any discussion, using sources and methods
that are available to our intelligence agencies, if we’re
going to be successful. That’s the world these folks
operate in. And so its going to be vital for us to use any
means at our disposal, basically, to achieve our objective.
Meet the Press, (NEB television broadcast, September 16,
2001).
Subsequent testimony from U.S. intelligence officials
corroborate the Bush administration’s no-holds-barred approach
to counterterrorism post-9/11.
Speaking to a joint hearing of
the U.S. House and Senate intelligence committees, Cofer Black,
a CIA counterterrorism official said “‘this is a very highly
classified area, but I have to say that all you need to know:
there was a before 9/11, and there was an after 9/11.
After
9/11 the gloves come off.’” U.S. Decries Abuse But Defends
A recent
CBS news investigation tends to support this characterization,
reporting that “it appears the number of flights [conveying
terrorism suspects to countries with deplorable human rights
12
records for interrogation] increased greatly in the Bush
administration after 9/11.” Sixty Minutes (CBS television
broadcast, March 6, 2005).
Torture Mechanics
Those who have survived this clandestine process tell
remarkably similar stories: masked men in a Gulfstream V jet
seize them, cut off their clothes, place them in blindfolds and
jumpsuits, shackle them, tranquilize them, and fly away.
Sixty
Minutes (CBS television broadcast, March 6, 2005); World News
Tonight (ABC television broadcast, March 7, 2005);
Counterpunch.org, Torture Air, Incorporated, April 9, 2005.
To
the suspects’ families, they effectively vanish; alarmingly for
the suspects themselves they resurface in countries that have
been identified by the U.S. State Department in its annual human
rights reports as employing brutal means of interrogation:
Morocco, Egypt, Jordan, Iraq, Afghanistan, Saudi Arabia and
Uzbekistan.
(http://www.state.gov/g/drl/rls/hrrpt/2004).
Not
only are these suspects held “without resort to legal process,”
the suspects are subject to some of the most brutal forms of
torture imaginable.
Thus what began as a program “aimed at a small discrete set
of suspects – people against whom there were outstanding foreign
13
arrest warrants” in the days prior to September 11, 2001 has
been estimated by international law experts at 150 renditions
since then. Outsourcing Torture, The New Yorker, February 14,
2005.
Yet while members of the U.S. Congress have asked the CIA
for more precise numbers to no avail, the results of a CBS news
investigation presented on a Sixty Minutes broadcast indicate
that one of the jets employed in carrying out the extraordinary
renditions (recognizable from its tail number) has made at least
600 flights to 40 countries since September 11, 2001. Sixty
Minutes, (CBS television broadcast, March 6, 2005).
Further,
“[the jet’s] major destinations read like a road map to the war
on terror: 30 trips to Jordan, 19 to Afghanistan, 17 to Morocco,
16 to Iraq.”
Id.
Another of the CIA’s jets transporting
suspected terrorists has made 10 trips to Uzbekistan.
Sweet
Land of Liberty: Torture Doublespeak, Secret Orders and
Renditions Cast Their Shadow, Washington Times, March 21, 2005.
SUMMARY OF THE ARGUMENT
The United States is bound by its international treaty
obligations that prohibit the use of torture for any purpose.
It may not make reservations that defeat the purpose of these
treaties.
First, the International Covenant on Civil and Political
Rights (ICCPR) instructs signatories that “no one shall be
14
subjected to torture or to cruel, inhuman or degrading treatment
or punishment.”
Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16,
U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United
States June 8, 1992).
Second, the Convention Against Torture prohibits the use of
torture for any purpose, explicitly stipulating that “no
exceptional circumstances whatsoever . . may be invoked as a
justification for torture.”
Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N.
GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM
1027 (1994), (adopted by the United States on November 20, 1994)
[hereinafter Torture Convention].
It further instructs that “No
party shall expel, return or extradite a person to another
States where there are substantial grounds for believing that he
would be in danger of being subjected to torture.” Id.
Third,
the Third and Fourth Geneva Conventions seek to extend humane
treatment to both prisoners of war and civilians. Geneva
Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force
Oct. 21, 1950); Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287,
6 U.S.T. 3516 (entered into force Oct. 21, 1950).
The United States Government remains bound by its treaty
15
obligations regardless of where torture is carried out, the
citizenship of the torturees/torturers, or claims of ignorance
as to the treatment of suspects in U.S. custody.
The practice of extraordinary rendition forces suspects to
endure cruel, inhuman and degrading treatment and outright
torture.
Reports of survivors and investigations of this secret
practice indicate a consistent pattern of gross and reliably
attested violations of human rights and fundamental freedoms.
Therefore, this practice represents a violation of the United
States’ obligations under the Torture Convention, ICCPR, and
Third and Fourth Geneva Conventions and should be proscribed.
ARGUMENT
I. The United States government is bound by at least
three international obligations not to engage in the
practice of torture or cruel, inhuman or degrading
treatment.
A.
The United States government is bound by the
terms of the Convention Against Torture
(hereinafter “Torture Convention”), the
Rights (hereinafter “ICCPR”), and the Third
and Fourth Geneva Conventions.
The United States deposited its instrument of ratification
for the Torture Convention on October 21, 1994; for the
International Covenant on Civil and Political Rights on June 8,
1992; and the Third and Fourth Geneva Conventions entered into
16
force on October 21, 1950.
Under the U.S. Constitution, “all Treaties made, or which
shall be made, under the Authority of the United States, shall
be the supreme Law of the Land.”
2.
U.S. Const. art. VI, §2, cl.
These above treaties are therefore part of the Supreme Law
of the Land, and are hence binding on the United States
government.
However, the United States’ approach to human rights
treaties tends to conceive of them as sieves into which holes
for incomplete compliance, or outright noncompliance, may be
freely poked.
For instance, the U.S. approach was, and remains,
to make illegal reservations to the ICCPR.
See generally
William A. Schabas, Invalid Reservations to the International
Covenant on Civil and Political Rights: Is the United States
Still A Party?, 21 Brook. J. Int’l L. 277 (1995).
For instance,
while the rights outlined in the ICCPR are “[derived] from the
inherent dignity of man,” the United States accompanied its
acceptance of the treaty with “no less than five reservations,
four interpretive declarations, and five ‘understandings’ – an
unprecedented number.”
Id. at 278.
In particular, the U.S.
instruments of ratification to the ICCPR as well as the Torture
Convention contained non-self-executing (NSE) declarations.
See
138 Cong. Rec. S4781-84 (1992); 136 Cong. Rec. S17, 492 (1990).
Scholarly criticisms of U.S. NSE declarations range from
17
characterizations as “against the spirit of the Constitution,”
“of dubious validity, probably [having] no binding effect on
United States courts,” to “[bringing] serious dishonor to the
United States and should be abandoned.”
Louis Henkin, U.S.
Ratification of Human Rights Covenants: The Ghost of Senator
Bricker, 89 Am. J. Int’l L. 341, 346-8 (1995);
Charles H.
Dearborn III, The Domestic Legal Effect of Declarations That
Treaty Provisions Are Not Self Executing, 57 Tex. L. Rev. 233,
233 (1979); Jordan J. Paust, Avoiding ‘Fraudulent’ Executive
Policy: Analysis of on Civil and Political Rights, 42 DePaul L.
Rec. 1257 (1993).
While there has been much thoughtful
scholarly debate on the question of the meaning and effect of
NSE declarations on their respective treaties, it is well
established law that reservations and interpretive declarations
which are incompatible with the object and purpose of a treaty
are per se invalid.
See Beazley v. Johnson, 242 F.3d 248, 264
(5th Cir. 2001); see also Jordan J. Paust, International Law as
Law of the United States 368 (1996) (“an attempted ‘reservation’
or declaration which conflicts with a jus cogens norm must also
be void”); Vienna Convention on the Law of Treaties, May 23,
1969, art. 19, 1155 U.N.T.S. 331 (reservations to a treaty
ratification are prohibited where they are "incompatible with
the object and purpose of the treaty"); Ehrlich v. Am. Airlines,
Inc., 360 F.3d 366, 373 n. 5 (2d Cir.2004) (while the United
18
States has not adopted the Vienna Convention on the Law of
Treaties, U.S. courts have looked to it "as an authoritative
guide to the customary international law of treaties").
Normally NSE declarations are regarded as “[precluding]
U.S. courts from applying human rights treaty provisions
directly to resolve cases involving alleged human rights treaty
violations by federal, state or local governments or officials.”
David Sloss, The Domestication of International Human Rights:
Non-Self-Executing Declarations and Human Rights Treaties, 24
Yale J. Int’l L. 129, 133 (1999). However, in the particular
cases of the Torture Convention and the ICCPR, this purpose is
at odds with the treaties themselves: both base the rights they
enumerate on “the inherent dignity of the human person.”
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51,
U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994); International
Covenant on Civil and Political Rights, G.A. Res. 2200, U.N.
GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM
360 (1967).
Certainly the “inherent dignity of the human
person” that forms the basis of the Torture Convention and the
ICCPR is the same throughout the world; therefore U.S. efforts
to avoid being held to its obligations under these treaties via
NSE declarations rise to the level of incompatibility with the
treaties’ object and purpose under customary international law.
19
These NSE declarations must therefore be invalid under customary
international law.
Despite U.S. efforts to designate the Torture Convention
and the ICCPR as NSE, the United Nations Human Rights Committee
has expressed a preference for a severability approach: i.e.,
that “reservations that offend peremptory norms” “will generally
be severable, in the sense that the Covenant will be operative
for the reserving party without the benefit of the reservation.”
General Comment on Issues Relating to Reservations Made upon
Ratification or Accession to the Covenant or the Optional
Protocols Thereto, or in Relation to Declarations Under Article
41 of the Covenant, U.N. GAOR, Hum. Rts. Comm. 53d Sess. 1413th
mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), in Beazley v. Johnson,
242 F.3d 248, 264 (5th Cir. 2001).
Therefore, the United States
NSE declarations that are offensive to peremptory norms and
violate peremptory norms are severable from its acceptance of
the terms of the Torture Convention and the ICCPR.
In their present forms, the Third and Fourth Geneva
Conventions entered into force on October 21, 1950.
Geneva
Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force
Oct. 21, 1950); Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287,
6 U.S.T. 3516 (entered into force Oct. 21, 1950).
20
With the Third and Fourth Conventions, aimed at the
Treatment of Prisoners of War and Protection of Civilian Persons
in Time of War, respectively, the drafters intended to extend
human rights to all persons involved in armed conflict
situations.
These Conventions are intended to be exhaustive: in
terms of coverage, they apply to persons involved in armed
conflict, either directly or indirectly.
The United States has recently taken the position that in
it’s undeclared “war on terror” it is not bound to abide by the
Geneva Conventions in how it treats suspected terrorists in its
custody.
This bald assertion is premised on the basis that
suspected terrorists don’t fit into one of the categories of the
Geneva Conventions: on February 7, 2002 the White House
announced that “none of the provisions of Geneva apply to our
conflict with al Qaeda . . . because, among other reasons, al
Qaeda is not a High contracting Party to Geneva.”
Memorandum of
President George W. Bush (Feb. 7, 2002), in Final Report of the
Independent Panel to Review DOD Detention Operatives (Aug.
2004), Appendix C, available at http//wid.ap.org/documents/iraq/
040824finalreport.pdf.
This position is completely at odds with the intent of the
drafters of the Conventions, as “there is no gap in the reach of
at least some forms of protections and rights of persons . . .
Common Article 3 assures that any person detained has certain
21
rights ‘in all circumstances’ and ‘at any time and in any place
whatsoever’ whether the detainee is a prisoner of war,
unprivileged belligerent, terrorist, or noncombatant.”
Jordan
J. Paust, Executive Plans and Authorizations to Violate
International Law Concerning Treatment and Interrogation of
Detainees, 43 Colum. J. Transnat’l Law 811, 817-18 (2005).
See
also Outsourcing Torture, The New Yorker, February 14, 2005
(according to a former state department lawyer, “there is no
such thing as a non-covered person under the Geneva Conventions.
It’s nonsense. The protocols cover fighters in everything from
world wars to local rebellions”).
Further, the United States position on the applicability of
the Geneva Conventions “demonstrates remarkable ignorance of the
nature and reach of treaties and customary international law”:
first, any national of a state that has ratified a treaty is
protected by its terms; second, the 1949 Geneva Conventions are
a part of customary international law “that is universally
applicable in times of armed conflict and, as such, protect[s]
all human beings according to their terms;” third, Common
Article 3 of the Geneva Conventions “provides non-derogable
protections and due process guarantees for every human being who
is captured, and like Common Article 1, assures their
application in all circumstances.”
Jordan J. Paust, Executive
Plans and Authorizations to Violate International Law Concerning
22
Treatment and Interrogation of Detainees, 43 Colum. J.
Transnat’l Law 811, 829 (2005).
Therefore, for the foregoing reasons, the United States is
bound as both a signatory to the Geneva Conventions as well as a
member of the community of nations who are bound by customary
international law.
B. The United States’ international treaty
obligations forbid the use of torture or
cruel, inhuman or degrading treatment in the
strongest terms.
The Torture Convention was enacted with the specific desire
“to make more effective the struggle against torture and other
cruel, inhuman or degrading treatment or punishment throughout
the world” and to give effect to Article 5 of the Universal
Declaration of Human Rights and Article 7 of the ICCPR, both of
which provide that “no one shall be subjected to torture or
cruel, inhuman or degrading treatment or punishment.”
Universal
Declaration of Human Rights, art. 5, G.A. Res. 217A (III), U.N.
GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10,
1948); International Covenant on Civil and Political Rights,
art. 7, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16,
U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted June 8,
1992).
Specifically, Article 1 of the Torture Convention defines
the term “torture” as
23
[A]ny act which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or
a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity.
The Torture Convention further frames this commitment to
eradicate the use of torture in terms of a positive obligation
to avert torture: Article 2 commands signatory nations to “take
effective . . . measures to prevent acts of torture in any
territory under its jurisdiction.” Article 3 specifically
commands “No State Party shall expel, return or extradite a
person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to
torture.” Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp.
No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994).
The Third and Fourth Geneva Conventions also prohibit the
use of torture in the strongest terms.
With reference to
prisoners of war, the Third Convention “[prohibit[s] violence to
life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture; taking of hostages; outrages upon
personal dignity, in particular, humiliating and degrading
treatment.” Geneva Convention Relative to the Treatment of
24
Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316
(entered into force Oct. 21, 1950).
Further, the Third
Convention imposes positive duties of humane treatment and
protection.
See Article 13 (“Prisoners of war must at all times
be humanely treated”
and “Likewise, prisoners of war must at
all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
Id.
The Fourth Convention provides similar prohibitions against
torture and violence for civilian persons as well as positive
duties for their humane treatment as well as additional
safeguards against brutal measures. Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, Aug. 12,
1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct.
21, 1950). (According to Article 32, “the High Contracting
Parties specifically agree that each of them is prohibited from
taking any measure of such a character as to cause the physical
suffering or extermination of protected persons in their hands.
This prohibition applies not only to murder, torture, corporal
punishments, mutilation and medical or scientific experiments
not necessitated by the medical treatment of a protected person,
but also to any other measures of brutality whether applied by
civilian or military agents”).
II. The United States government remains bound by
these obligations regardless of claims of ignorance as to
the treatment of suspects once they leave U.S. custody,
25
where torture is carried out, or the citizenship of the
tortured/torturers.
A.
The U.S. treaty obligations forbidding
torture apply to the interrogation of
non-U.S. citizens turned over to other
governments for interrogation outside the
U.S.
The standard U.S. government response to reports of
extraordinary rendition is to neither publicly acknowledge the
program nor the facts that it has both resulted in torture, and
is extremely likely to continue to do so.
According to then-
White House counsel Alberto Gonzales’ written congressional
testimony from January, 2005, “the policy of the United Sates is
not to transfer individuals to countries where we believe they
likely will be tortured . . .”.
Rule Change Lets C.I.A. Freely
Send Suspects Abroad, New York Times, March 6, 2005.
However, both current and former government officials
depart from this standard line considerably.
According to these
officials, the process of extraordinary rendition is justified
method for saving lives due to cost and manpower advantages
achieved via the ‘cultural affinity’ that captives share with
their foreign interrogators.
See Id.; U.S. Decries Abuse But
Defends Interrogations, Washington Post, December 26, 2002.
Further, and most startlingly, U.S. Attorney General
Gonzales has made comments to suggest that the U.S. is no longer
bound by its obligations under international treaty or its own
26
Constitution when conducting interrogations of suspects outside
its borders.
Halt C.I.A Shuttle Service, Milwaukee Journal
Sentinel, March 24, 2005.
However, there is case law support
that the U.S. Constitution may have extraterritorial effect with
respect to American citizens.
See 16 Am. Jur. 2d Con. Law §41,
U.S. v. Davis, 905 F2d 245 (9th Cir. 1990); U.S. v. Rasheed, 802
F. Supp. 312 (D. Haw. 1992).
Further, individual U.S. citizens
are bound by treaty obligations, not simply the U.S. government.
Kennett v. Chambers, 55 U.S. 38 (1852).
Additionally, the very
text of the Torture Convention itself specifies “throughout the
world” in the preamble as the scope of its mission “to make more
effective the struggle against torture and other cruel, inhuman
or degrading treatment.” Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR,
39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027
(1994), (adopted by the United States on November 20, 1994)
Further, “no exceptional circumstances whatsoever . . . may be
invoked as a justification of torture,” which would seem to
include territorial or personal jurisdiction challenges.
Id.,
art. 2.
B.
Willful blindness to the torture of
suspected terrorists once they leave
either U.S. soil or U.S. custody can be
no defense to any of that government’s
obligations pursuant to international
agreement.
27
The United States has endeavored to distance itself from
any potential consequences for its extraordinary rendition
program with techniques of diversion and feigned ignorance of
the realities of the extraordinary rendition program.
However,
neither of these techniques successfully relieve the U.S.
government of its international obligations to avoid torture
under the terms of the Torture Convention and the ICCPR.
First, the United States government seeks to avoid public
outcry for their complicity in a program that results in torture
by denying that “torture is the intended result of its rendition
policy.”
U.S. Decries Abuse But Defends Interrogations, The
Washington Post, December 26, 2002.
Second, the United States
government emphasizes procedures that supposedly safeguard
against the torture of extraordinarily rendered suspects.
For
instance, President Bush contends that “we seek assurances . . .
that nobody will be tortured when we render a person back to
their home country.” Outsourcing a Real Nasty Job, U.S. News and
World Report, May 23, 2005.
See also, Editorial: Legislation
Would Tell World U.S. Supports Torture: Would You Trust the Word
of Syria, Jordan, Morocco or Egypt?, Chicago Sun-Times, October
23, 2004.
Presumably, the intent behind such statements is to
keep the United States in line with its treaty obligations to
avoid the use of torture.
Yet despite the diligence that these statements suggest
28
concerning the U.S. government’s position on preventing torture,
when pressed government officials have admitted that such
assurances, sought from countries with problematic records on
human rights, are “flimsy” at best.
Revealed: Western Nations
That Send Terr or Suspects to Torturing Regimes, Independent,
April 15, 2005.
For instance, “even Attorney General Alberto
Gonzales has acknowledged that Washington ‘can’t fully control’
what happens to detainees transferred abroad for interrogation.
CIA Director Porter Goss agreed, testifying earlier this year
that once a terror suspect is out of American control, ‘there’s
only so much we can do.’”
Outsourcing A Real Nasty Job, U.S.
News & World Report, May 23, 2005.
See also Rule Change Lets
C.I.A. Send Suspects Abroad, New York Times, March 6, 2005
(according to a government official involved in extraordinary
renditions, while assurances are made that suspects rendered
abroad will not be tortured, “nothing is 100 percent unless
we’re sitting there staring at them 24 hours a day”); U.S.
Decries Abuse But Defends Interrogations, Washington Post,
December 26, 2002 (“If we’re not in the room, who is to say?”
[whether suspects are tortured]).
Further, the United States government seeks to employ this
engineered uncertainty surrounding the extraordinary rendition
process in order to avoid triggering violations of its
international obligations to abstain and prevent torture,
29
effectively hiding from responsibility in a cloak of willful
blindness.
According to a C.I.A. official, “we’re not aware of
any torture.”
Id.
Fred Hitz, a former C.I.A. Inspector
General, said that “we don’t do torture, and we can’t
countenance torture in terms of we can’t know of it.”
Id.
While the Torture Convention requires “substantial
grounds for believing,” a suspect would be subjected to torture
if extradited to another state for a violation of its terms,
willful blindness can be no defense for the failure to comply
with any treaty obligation.
Even in United States criminal law,
the Model Penal Code equates willful blindness with positive
knowledge.
See Model Penal Code 2.02(7).
Further, “the
judicial and academic consensus . . . accepts that willful
blindness equals knowledge,” Thomas A. Hagemann and Joseph
Grinstein, The Mythology of Aggregate Corporate Knowledge, A
Deconstruction, 65 Geo. Wash. L. Rev. 210, 247 n.69 (1997).
See
also Douglas N. Husak and Craig A. Callendar, Willful Ignorance,
Knowledge, and the ‘Equal Culpability’ Thesis: A Study of the
Deeper Significance of the Principle of Legality, 1994 Wis. L.
Rev. 29 (“virtually all courts and commentators agree that a
mental state they alternatively describe as ‘wilful [sic]
ignorance’ or wilful [sic] blindness’ is sufficient to satisfy
the requirement of knowledge).”
Therefore, in light of the fact that the Torture Convention
30
requires only “substantial grounds for believing” a suspect
would be subjected to torture if extradited, and under U.S.
domestic law officials involved in extraordinary renditions
would be deemed to have the mens rea of knowledge willful
blindness, the U.S. does not have a plausible defense to for
their violations of the Torture Convention.
III. The current United States practice of
extraordinary rendition violates all of the aforementioned
international obligations not to engage in the practice of
torture or cruel, inhuman or degrading treatment
A. Reports of the techniques used in extraordinary
renditions rise to the level or torture as
defined under the Torture Convention.
The Torture Convention defines 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 . . . ”. Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th
Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027
(1994).
Reports of survivors of the United States government’s
extraordinary rendition procedure describe the following:
-Maher Arar was abducted at John F. Kennedy airport while
31
changing planes.
He was flown to Syria where he was
repeatedly whipped with two-inch-thick electrical cables
“and kept in a windowless underground cell that he likened
to a grave.” He was released a year later without being
charged with anything.
Outsourcing Torture, The New
Yorker, February 14, 2005.
-Shawki Salama Attiya was captured in Tirana, Albania and
flown to Cairo where he suffered electric shocks to his
genitals, was hung from his limbs, and kept in a cell in
filthy water up to his knees.
Outsourcing Torture, The New
Yorker, February 14, 2005.
-Abu Zubaida was shot in the groin during his apprehension
in March 2002, and “national security officials [have]
suggested that Zubaida’s painkillers were used
selectively.”
Interrogations, The Washington Post, December 26, 2002.
One U.S. official involved said “in a deadpan voice, that
‘pain control [in wounded patients] is a very subjective
thing.’”
Id.
-Benyam Mohammed was arrested in Pakistan in April, 2002
and was flown on a U.S. government plane to a prison in
32
Morocco and kept there for 18 months.
His abductors
tortured him monthly by making 20-30 cuts in his penis.
“I
was in agony,” he said of this mutilation, which extended
all over his genitals.
Additionally, “[his abductors said]
it would be better just to cut it off, as I would only
breed terrorists . . .”.
He was also burned with some kind
of liquid, as well as forced to listen to hard rock and hip
hop music at high decibels for long periods.
One of Them
Made Cuts In My Penis; I Was In Agony, Guardian Unlimited,
August 2, 2005.
-Mamdouh Habib, an Egyptian-born citizen of Australia was
on vacation with his family in Pakistan when he was
kidnapped by Americans and flown to Egypt where he was
beaten with blunt objects, “including an object that he
likened to an electric ‘cattle prod’ . . . was told that if
he didn’t confess to belonging to Al Qaeda he would be
anally raped by specially trained dogs . . . was shackled
and forced to stand in three torture chambers: one room was
filled with water up to his chin, requiring him to stand on
tiptoe for hours; another chamber, filled with water up to
his knees, had a ceiling so low that he was forced into a
prolonged, painful stoop; in the third, he stood in water
up to his ankles, and within sight of an electric switch
33
and a generator, which his jailers said would be used to
electrocute him if he didn’t confess.”
Outsourcing
Torture, The New Yorker, February 14, 2005.
Survivors of extraordinary rendition also describe being
deprived of sleep with 24-hour bombardment of lights, held in
awkward, painful positions and subjected to “‘water-boarding’ in
which a suspect is bound and immersed in water until he nearly
drowns” (Outsourcing Torture, The New Yorker, February 14,
2005).
Craig Murray, a former British ambassador to Uzbekistan
has publicly acknowledged that in this country, “partial boiling
of a hand or an arm is quite common” and knows of “at least
three” U.S. extraordinary renditions to that country as well as
“two cases in which prisoners had been boiled to death.”
Id.
This same ambassador has also acknowledged that the Uzbeks
routinely use suffocation and rape as interrogation techniques.
The techniques outlined here ipso facto meet the Torture
Convention’s definition of “act[s] by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted” for the purpose of obtaining information or
confessions.
Moreover, these techniques shock the conscience
and the humanity of reasonable people.
B. In light of the United States government’s
knowledge of the tortuous practices of
34
governments to which it extraordinarily renders
suspects, the United States government has the
requisite “substantial grounds for believing”
that surrendered suspects will be tortured
under the Torture Convention.
For the United States government to claim ignorance of the
likely consequences of its extraordinary rendition program is
disingenuous at best.
The recent destinations of the planes
identified by CBS news as those involved in extraordinary
renditions “read like a roadmap to the war on terror - 30 trips
to Jordan, 19 to Afghanistan, 17 to Morocco, 16 to Iraq. Other
stops include Egypt, Libya, Guantanamo Bay, Cuba.”
Sixty
Minutes (CBS television broadcast, March 6, 2005).
It seems
unreasonable to believe that the U.S. Executive Branch did not
read its own annual human rights report prepared by the State
Department that lists many of these U.S. partners in the
extraordinary rendition program, which also includes Morrocco,
Jordan, Afghanistan, Saudi Arabia, and Uzbekistan, as employing
brutal means of interrogation
(http://www.state.gov/g/drl/rls/hrrpt/2004).
Further bolstering the claim that the United States
government has the requisite “substantial grounds for believing”
that surrendered suspects will be tortured under the Torture
Convention is the fact that in the mid-1990s not only was the
Executive Branch of the United States government aware of the
35
tendency of other governments to engage in brutalizing suspects,
President Clinton went so far as to “cut off funding and
cooperation with the directorate of Egypt’s general intelligence
service” due to torturing of suspects.
U.S. Decries Abuse But
Defends Interrogations, Washington Post, December 26, 2002 (see
supra page 9). As far as the knowledge of torture exists in the
present-day extraordinary rendition program, “one official who
has had direct involvement in renditions said he knew they were
likely to be tortured. ‘I
said.”
. . . do this with my eyes open’ he
U.S. Decries Abuse But Defends Interrogations, The
Washington Post, December 26, 2002.
CONCLUSION
The United States Government’s use of “extraordinary rendition” to forcibly disappear
and torture suspected terrorists violates that nation’s international treaty obligations. Given the
veil of extreme secrecy surrounding the extraordinary rendition program, credible news reports
suggesting the same plane known to have served in this process in the past has made a large
number of flights to countries with problematic human rights records in recent years, and
survivors’ reports of agonizing torture and extreme cruelty, the United States government’s
practice of extraordinary rendition in violation of its international treaty obligations rises to the
level of “a consistent pattern of gross and reliably attested violations of human rights and
fundamental freedoms.” Complaints to the Commission on Human Rights and the Commission
on the Status of Women: The 1503 Procedure of the Commission on Human Rights, available at
http://www.ohchr.org/english/about/publications/docs/fs7.htm#1503. Therefore, the United
States government's practice of extraordinary rendition merits consideration on the United
36
Nations’ Commission on Human Rights 1503 agenda. This court should not allow the United
States government to continue its unrepentant prosecution of “the war on terror” without any
regard for those whom it terrorizes with enforced disappearances and torture.
37

United Nations Commission on Human Rights

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