29. Futher submission from the Redress
Trust on the alleged use of UK airports in extraordinary renditions
INTRODUCTION
1. On 30 September 2005 and 14 October 2005,
The Redress Trust (REDRESS) put forward submissions to the Joint
Committee on Human Rights JCHR) in response to its calls for evidence
into the subjects of the implementation of the UNCAT in the United
Kingdom and counter-terrorism policy and human rights, respectively.
2. These current submissions are supplementary
to the afore-mentioned submissions in respect of the specific
issue of allegations that United Kingdom airports have been used
by US security aircraft as stopovers in extraordinary renditions,
transporting (terrorist) suspects to jurisdictions where they
may be tortured, and the implications of this for the UK's compliance
with UNCAT.
3. On 30 November 2005 REDRESS submitted
a letter to the Secretary of Transport, requesting that the Government
properly investigate the allegations of the UK's role in "renditions"
and "extraordinary renditions" and that it takes steps
to prevent any future violations.
BACKGROUND
4. Since the Guardian newspaper ran stories
in September 2005[430]
on what it branded as CIA flights involved in the clandestine
transportation of terrorist suspects using UK airports, there
has been a flurry of further developments surrounding this and
related issues, including the following: further extensive print
media and television reports on this alleged practice and matters
apparently connected to it such as secret USA detention and interrogation
centres in Eastern Europe; questions in Parliament; the creation
of an All Party Parliamentary Group on Extraordinary Renditions;
enquiries by the UN Special Rapporteur on Human Rights and Counter-terrorism
to the UK Government about the flights; the Council of Europe
has opened a formal inquiry into the alleged "extraordinary
renditions" by the CIA and the role of Council of Europe
members in the practice; USA Secretary of State Condoleezza Rice
has made statements setting out the official USA position; Foreign
Secretary Jack Straw has been questioned by the Commons Foreign
Affairs committee. This illustrates how the issue has become one
of major and growing public concern over the past three months.
5. The immediate matter of concern to the
JCHR is any UK role in the USA's "rendition" and "extraordinary
rendition" programme that could constitute a breach of the
UK's obligations under the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). But
the JCHR should consider that the matter is currently much more
than a USA—UK issue: thus, in assessing the UK's actions
in relation to and in response to these allegations, it should
consider the broader debate surrounding the issue of "renditions".
For example, Swiss parliamentarian Dick Marty, who is conducting
the Council of Europe inquiry, has criticised the lack of information
from Secretary of State Rice during her December 2005 visit to
Europe. Leaders of parliamentary delegations to the Parliamentary
Assembly will be asked to take initiatives within their parliaments
in order to obtain more precise information on this matter. The
Committee on Legal Affairs and Human Rights will request that
the Bureau of the Assembly include an urgent debate on the issue
at the Assembly's next plenary session (23-27 January 2006.).
The German authorities are investigating the abduction of German
citizen Khaled Al Masri. [431]On
15 November 2005 a Spanish judge announced that he would investigate
whether the Son Sant Joan airport in Majorca was used by the CIA
to transport detainees. The Norwegian government is said to have
asked the US Embassy for information on a plane which landed in
Oslo on the 20 July 2005. The Swedish government has asked the
civil aviation authorities for full information following that
aircraft suspected of belonging to the CIA landed at Swedish airports
during the last three years. Swiss authorities are attempting
to ascertain whether aircraft chartered by the CIA had violated
Swiss sovereignty by landing on several occasions in Geneva during
2003-04.
6. In the course of these developments there
have been numerous factual allegations made concerning the use
of UK airports and airspace in what are sometimes referred to
as "renditions" and sometimes "extraordinary renditions",
including details of some of the aircraft used, destinations,
alleged terrorist suspects which could have been on the planes,
and other such matters. For example—, frequent reference
has been made to a "Gulfstream V" used for "extraordinary
renditions" which has visited British airports on several
occasions along with a Boeing 737 which was said to have been
hired by American agents; [432]movements
of the Gulfstream V coincided with various incidents of "extraordinary
rendition"; aircraft apparently involved in these operations
have flown into the UK over 200 times since September 11 2001,
involving 19 British airports and RAF bases, in particular, Prestwick,
Glasgow; [433]the
case of Saad lqbal Madni, seized by Indonesian Intelligence Agents
on 9 January 2002 and flown by the Gulfstream V to Cairo, is raised,
it having been alleged that the aircraft then left Cairo on 15
January 2003, stopping at Prestwick airport before returning to
Washington. However, no hard evidence has yet emerged that any
particular aircraft carried any particular individual through
the UK in the course of "extraordinary rendition."
SUMMARY OF
THESE SUBMISSIONS
7. These submissions will focus on the legality
of "renditions" and "extraordinary renditions"
under UNCAT. The submissions explain:
— The practice of "rendition"
and its legality under human rights law.
— How "renditions" may involve
torture or ill treatment and thus be in breach of UNCAT.
— That "renditions" to secret
detention centres may constitute the crime of enforced disappearances
and may be tantamount to torture or ill treatment.
— How the UK has an obligation to ensure
that its airspace and airports are not used in connection with
practices of "rendition" in possible violation of UNCAT,
including transfers to secret or regular detention centres and/or
to countries where there are substantial grounds for believing
that the individual will be tortured even if there is an arrest
warrant or court order against the individual.
— That the use of UK airspace and the
refuelling in UK airports of flights carrying out "rendition"
operations involving torture or ill treatment, is contrary to
the UK obligations under UNCAT and might constitute aiding and
abetting in torture giving rise to State responsibility and individual
criminal responsibility.
— That the UK therefore has an obligation
under UNCAT to investigate the allegations of "renditions"
promptly and impartially.
— That the UK is under an obligation
to review its existing laws, practices and mechanisms to prevent
these acts, and if such allegations are confirmed, to implement
effective guarantees of non-repetition.
THE PRACTICE
OF "RENDITIONS"
Renditions to justice
8. The United States has long acknowledged
the practice of "renditions to justice" as necessary
to combat transnational crime. This practice consists of transferring
individuals outside legal procedures for prosecution or trial
in the US or in other countries through forcible abductions or
other forms of irregular renditions such as luring or arbitrary
deportations. [434]In
a recent statement, the US Secretary of State, Condoleezza Rice,
acknowledged that the US has been using "renditions"
for decades to transport terrorist suspects from the country where
they where captured to their home country or to other countries
where they can be questioned, held or brought to justice. It is
not clear from this statement whether the US considers this practice
to be lawful, as it only describes "renditions to justice"
as permissible under international law. [435]In
any case this practice seems to go further to what the US and
in some cases US courts, had acknowledged to be within the boundaries
of international law. [436]
9. Even if a "rendition" does
not infringe upon the sovereignty of the host State (e g., the
abduction is performed with its consent) and is carried out with
the purpose of sending the individual to stand trial, it would
still constitute an arbitrary detention/expulsion and a breach
of the individual's fair trial rights. [437]
10. This has been recognised by international
courts and human rights bodies. For example, the Inter-American
Juridical Committee highlighted the "incompatibility of the
practice of extraterritorial abduction with the rights of due
process to which every person is entitled, no matter how serious
the crime they are accused of, a right protected by international
law." [438]
11. Similarly the European Court of Human
Rights (ECtHR) has recognised the principle that all transfers
whether described as expulsion, extradition, deportation or otherwise,
need to comply with the minimum procedural guarantees prescribed
under domestic and international law. In Bozano v France[439]
the Court determined that legal procedures affect not only the
validity of the transfer but also the legality of holding the
individual under detention for the purpose of the removal.
12. Bosnia and Herzegovina's Human Rights
Chamber also analysed the legality of transfers under the European
Convention on Human Rights (ECHR) in Bensayah against Bosnia and
Herzegovina, [440]a
case involving the illegal surrender to US custody of a Yemeni
terrorist suspect. The Human Rights Chamber explained that Protocols
Four and Seven of the ECHR specifically recognise the absolute
prohibition of expulsion of nationals (art 3 of the Fourth Protocol)
and the prohibition of arbitrary expulsion of aliens that is,
expulsions not based on "a decision reached in accordance
with the law" (art I of the Seventh Protocol). It concluded,
therefore, that if local authorities cooperate with the surrender
of an individual(s) to the authorities of another State for the
purpose of "rendition", it is a breach of the ECHR.
13. This view has also been echoed by the
UN Human Rights Committee. [441]
Rendition to interrogations and/or detention and
"extraordinary renditions"
14. As described in the Background (above),
reports by journalists, non-governmental organisations and international
bodies contain credible allegations that the US is conducting
an "off the record" practice of inter-State transfers
of terrorist suspects to third countries and/or to secret detention
centres outside of US territory where there is substantial likelihood
that the detainees may suffer torture or ill treatment. This practice
has been labelled "extraordinary renditions".
15. Regardless of the method employed to
transfer individuals (off or on the record renditions) and the
jurisdictions involved, the detention of individuals outside of
any legal process is a breach of their right to liberty and to
be free from arbitrary detention. Moreover, if the location of
the person is kept secret, it can also constitute an enforced
disappearance, which is a crime under international law. [442]
16. As has been established by international
courts and human rights bodies, "disappearances" can
constitute a form of torture or ill treatment to the victim as
well as to his/her family. [443]
Additionally, it has been widely recognised
that disappearances, unofficial detention centres, arbitary and/or
incommunicado detention, not only can constitute torture and ill
treatment but also put the individual at high risk of torture
or other forms of ill treatment. [444]
THE UK AND
"RENDITIONS"
17. The UK has an obligation to ensure that
its airspace and airports are not used in connection with practices
of rendition in possible violation of UNCAT, including transfers
to secret detention centres; to other detention centres for the
purposes of questioning (ie Guantanamo Bay); or to countries where
there are substantial grounds for believing that the individual
will be tortured (despite existing arrest warrants or court orders).
UNCAT PROHIBITS "RENDITIONS"
INVOLVING TORTURE
18. Torture and other cruel, inhuman or
degrading treatment or punishment (ill treatment) are prohibited
by UNCAT. Article I defines "torture" and although UNCAT
does not contain a definition of ill treatment, Article 16 establishes
an obligation to prevent it and specifies that:
"In particular, the obligations contained
in articles 10, 11, 12 and 13 shall apply with the substitution
for references to torture or references to other forms of cruel,
inhuman or degrading treatment or punishment."
These Articles refer to, among others, interrogations
rules; the obligation to undertake an effective investigation;
the individual right to complain; and the right to an effective
remedy and adequate reparation.
19. It is important to note that although
Article 3 of UNCAT specifically prohibits the expulsion, return
or extradition of a person to a State where there are substantial
grounds for believing that he/she would be in danger of being
subjected to torture (or at risk of subsequent transfer to a risk
of torture), [445]and
does not cover other forms of ill treatment, nonetheless the UK
is bound under the International Covenant on Civil and Political
Rights (ICCPR) [446]and
the ECHR[447]
not to transfer anyone where there is a risk of either torture
or ill treatment.
UNCAT'S NON-REFOULEMENT
OBLIGATION AND
"RENDITIONS"
20. The principle of non-refoulement
contained in Article 3 of UNCAT is also a principle under
customary international law[448]
which applies to legal procedures of extradition, deportation
or expulsion of individuals from the jurisdiction of one State
to another. A breach of this principle gives rise to State responsibility.
Mutatis mutandis, all transfers, including those outside
legal procedures, need to comply with this principle or otherwise
the transferring State would be committing an additional international
wrongful act.
21. In this context, it has been suggested
that both the sending State and the transit State may be exonerated
from liability under international law if diplomatic assurances
are obtained from officials of the receiving State that persons
transferred into their jurisdiction will not be subject to torture
or ill treatment. REDRESS has already indicated in its previous
submission (dated 14 October 2005) that diplomatic assurances
are incapable of ascribing legality to transfers to locations
where there is a real risk of torture in violation of the principle
of non-refoulement (see Chahal v. United Kingdom (1996) 23 EHRR
413). It would be even more objectionable if such assurances were
used to ascribe legality in an extrajudicial transfer, or in a
transfer to a secret detention facility.
22. Article 16 of the "Draft articles
on Responsibility), of States for internationally wrongful acts"
adopted by the International Law Commission (ILC) in 2001 provides:
"A State which aids or assists another State
in the commission of an internationally wrongful act by the latter
is internationally responsible for doing so if:
a) That State does so with the knowledge
of the circumstances of the internationally wrongful act; and
b) the act would be internationally
wrongful if committed by that State".[449]
23. If an official aided or abetted in the
perpetration of torture, they may be criminally responsible for
the underlying offence. [450]Article
4 of UNCAT requires States to ensure that all forms of torture
are offences under their criminal laws, including all acts that
constitute participation in, complicity in, or an attempt to commit
torture. Article 5 specifies that States should exercise their
criminal jurisdiction even when the acts are committed outside
their territory.
24. J. Burgers and H. Danelius, who were
actively involved in the drafting of the UN Convention against
Torture, and have written one of the leading commentaries, emphasized:
"It is important, in particular, that different
forms of complicity or participation are punishable, since the
torturer who inflicts pain or suffering often does not act alone,
but his act is made possible by support or encouragement which
he receives from other persons. In many cases the torturer is
merely a tool in the hands of someone else (|) the person or persons
who instructed him should also he punished".[451]
UNCAT REQUIRES THE
UK TO INVESTIGATE
ALLEGATIONS OF
"RENDITIONS" WITHIN
ITS JURISDICTION
THAT MIGHT
HAVE INVOLVED
TORTURE OR
ILL TREATMENT
25. As stated by Lord Bingham in the recent
House of Lords' decision of A (FC) and Others v Secretary of
State for the Home Department UNCAT prohibits torture and
ill treatment and establishes an obligation to investigate allegations
promptly and impartially. [452]
26. Credible information suggesting that
individuals are being transported by officials of another State,
via the United Kingdom, to detention facilities for interrogation
under torture or are being tortured and ill treated while transported,
would imply a breach of UNCAT and must be investigated effectively.
THE UK IS
UNDER AN
OBLIGATION UNDER
UNCAT TO ESTABLISH
EFFECTIVE SAFEGUARDS
TO PREVENT
UK PARTICIPATION IN
"RENDITIONS" INVOLVING
TORTURE OR
ILL TREATMENT
27. Under Article II of UNCAT:
"Each State Party shall keep under systematic
review interrogation rules, instructions, methods and practices
as well as arrangements for the custody and treatment of persons
subjected to any form of arrest detention or imprisonment in any
territory under its jurisdiction, with a view to preventing any
cases of torture."
In other words, the UK should examine whether
it has in place sufficient safeguards to prevent acts as have
been alleged.
28. In addition to the duty to refrain from
committing acts of torture and ill treatment, States have a positive
obligation to protect individuals by ensuring that they are not
subjected to conduct constituting a violation of international
law. This positive duty requires States to investigate allegations
of torture that may have occurred on their territory, including
allegations of complicity or participation in torture, and to
establish guarantees of non repetition. [453]
29. If an official investigation confirms
these allegations, the UK is under an obligation to review its
legislation, methods and practice regulating civil aviation (including
measures for the identification of flights that might be transporting
detainees exposed to the risk of torture or other ill treatment),
to make sure that such acts are not repeated.
22 December 2005
430 The Guardian revelations on 12 and 13 September
2005 were not the first media reports linking CIA flights to UK
airports. The UK Sunday Times referred to the link in a
report on 14 November 2004. Back
431
See interview with investigative journalist Stephen Grey which
refers to the case, available at http://www.democracynow.org/article.pl?sid=05/12/07/1519249. Back
432
Sunday Times November 2004. Back
433
Guardian 12 and 13 September 2005. Back
434
See Torture by Proxy: International and Domestic Law Applicable
to "Extraordinary Renditions" (New York: ABCNY and
NYU School of Law, 2004) page 15. See also Extraterritorial Abductions,
footnote 1. Back
435
See footnote 8. Back
436
See footnote 5. Back
437
See Transcript: Secretary of State Rice's Remarks Prior to
Departing for European Trip http://www.washingtonpost.com/wp-dyn/content/article/2005/12/05/AR2005120500462_pf.html.
The statement by Rice included the following "One of history's
most infamous terrorists, best known as `Carlos the Jackal,' had
participated in murders in Europe and the Middle East. He was
finally captured in Sudan in 1994. A rendition by the French government
brough him to justice in France, where he is now imprisoned. Indeed,
the European Commission of Human Rights Rejects Carlos' claim
that his rendition from Sudan was unlawful." The case
to which she referred is Illich Sanchez Ramirez v France,
Application No 28780/95, Commission Decision of 24 June 1996.
Her assertion that this case is authority for "renditions"
being lawful is an over-simplification. The application was "essentially|about
the deprivation of [Ramirez's] liberty by the French authorities"
(page 161), the Commission stating that "in so far as the
application concerns the circumstances in which the applicant
was allegedly deprived of his liberty in the Sudan, it is outwith
the jurisdiction of the Commission, ratione personae, since
the European Convention on Human Rights does not bind that State,
and would, therefore, have to be rejected as being incompatible
with the provisions of the Convention." (ibid). Back
438
Inter-American Juridical Committee, Legal Opinion Regarding
the Decision of the Supreme Court of the United States of America
C.J.I./RES/11/15/91. Back
439
Bonzano v. France (1986) 9 EHRR 297. Back
440
Bensayah against Bosnia and Herzegovina (4 April 2003,
case no. CH/02/9499). Back
441
See Cleberti de Caariego v Uruguay Communication No R13/56, 29
July 1981; Lopez v Uruguay Communication No R12/52, 29 July 1981;
Gury v Dominican Republic, UN Doc CCPR/C/39/D/193/1990, Decision
of 20 July 1990. Back
442
According to the Declaration on the Protection of All Persons
from Enforced Disappearance, proclaimed by the General Assembly
in its resolution 47/133 of 18 December 1992, an enforced disappearance
occurs when "persons are arrested, detained or abducted against
their will or otherwise deprived of their liberty by officials
of different branches or levels of Government, or by organised
groups, or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government,
followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation
of their liberty, which places such persons outside the protection
of the law." Article 7 of the ICC Rome Statute, establishes
that widespread or systematic enforced disappearances of persons
is a "crime against humanity" and falls withing the
jurisdiction of the Court. Rome Statute of the International Criminal
Court, U.N. Doc. 2187 U.N.T.S. 90, entered into force 1
July 2002. Back
443
According to the Working Group on Enforced Disappearances, a "disappearance
itself constitutes ipso facto torture or other prohibited ill-treatment.
"The very fact of being detained as a disappeared person,
isolated from one's family for a long period is certainly a violation
of the right to humane conditions of detention and has been represented
to the Group as torture." (see UN doc. E/CN.4/1983/14, para
131). "Disapperances" are a form of torture as regards
the relatives of the "disappeared" person and potentially
as regards the "disappeared persons." See: U.N. Declaration
on Enforced Disappearances (Art. I): "Any act of enforced
disappearance|constitutes a violation of the rules of international
law guaranteeing, inter alia|the right not to be subjected to
torture and other cruel, inhuman or degrading treatment or punishment."
The UN Human Right Committee has taken several decisions on individual
petitions which indicate that "disappearances" amount
to torture. See: Quinteros v Uruguay, (107/1981, para 4);
also El-Megreisi v Libya (Report of the Human Rights Committee,
Vol.II, GAOR, 49th Session, Supplement 40 (1994), Annex IX T,
paras 2.1-2.5); Mojica v. Dominican Republic (449/1991,
para 5.7). See also European Court of Human Rights (Kurt v.
Turkey, Eur.Ct.Hum.Rts, Case No.15/1997/799/1002, 25 May 1998,
para.134); The Inter-American Court of Human Rights, Vela«squez
Rodriguez Case, Judgement of 29 July 1988, Series C No 4,
para.187). Back
444
Idem. Back
445
According to the UN Committee Against Torture, "the Phrase
`State' in article 3 refers to the State which the individual
concerned is being expelled, returned or extradited, as well as
to any State to which the author may subsequently be expelled,
returned or extradited"-General Comment No. 01: Implementation
of article 3 of the Convention in the context of article 22:.
21/11/97.A/53/44, annex IX, CAT General Comment No. 01. (General
Comments) Back
446
The Human Rights Committee has interpreted Articl7 of the ICCOR
prohibiting torture and ill treatment as implicitly prohibiting
refoulement. See HRC General Comments No. 20 (1990, at
§ 9), and No. 31 (2004 § 12). For individual communications,
see e.g. Chitat Ng v. Canada, (1994, § 14.1); Cox
v. Canada (1994); G.T. v. Australia (1997). Back
447
In Soering and in subsequent cases, the ECtHR identified
non-refoulement as an "inherent obligation" under
Article 3 of the Convention in cases where there is a "real
risk of exposure to inhuman or degrading treatment or punishment."
Soering v. UK (1989, § 88). Back
448
See E. Lauterpacht and D. Bethlehem (2001) An Opinion on the Scope
and Content of the Principle of Non-Refoulement, available on
the UNHCR website (Global Consultations page, 196-216). Back
449
http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm. Back
450
See Article 25 (3)(c) of the International Criminal Court Statute
and Article 7(1) of the Statute of the International Criminal
for the Former Yugoslavia. This provision was interpreted in the
Furundzija decision of the ICTY, where it was held that
"to be guilty of torture as an aider or abettor, the accused
must assist in some way which has substantial effect on the prepetration
of the crime and with knowledge that torture is taking place."
ICTY Furundzija judgment (1998, 257). Back
451
Burgers and Danelius, supra at p. 130. See also Human Rights
Committee, General Comment No. 20, "The prohibition of
torture and cruel treatment or punishment (Article 7)";
10 March 1992, UN Doc. HRI/GEN/1/Rev.7, at Para. 13. Back
452
A Committee against Torture was established under article 17
of the Torture Convention to monitor compliance by member states.
The Committee has recognised a duty of states, if allegations
of torture are made, to investigate them: PE v Frances, 19 December
2002, CAT/C/29/D/193/2001, paras 5.3, 6.3; GK v Switzerland, 12
May 2003, CAT/C/30/D/219/2002), para 6.10" A (FC) and Others
v. Secretary for the Home Department, [2005] UKHL 71, para
34 (Lord Bingham of Cornhill). Back
453
As Lord Bingham stated "| the jus cogens erga omnes nature
of the prohibition of torture requires member states to do more
than eschew the practice of torture." See footnote 425,
para 34 (Lord Bingham of Cornhill). See also UN Basis Principles
and Guidelines on the Right to a Remedy and Reparation, General
Assembly A/C.3/60/L.24, 24 October 2005. Back
|
