Introduction
“Extraordinary rendition” is not a term of international law, but rather refers to an extrajudicial procedure used to transport terrorist suspects from one country to another for the purposes of interrogation or imprisonment in circumstances where there is a real risk of torture or cruel, inhuman or degrading treatment. 1 It is an offshoot of the practice of “rendition to justice” which is again a covert technique used to apprehend and transfer criminal suspects from abroad to the jurisdiction of the rendering state for trial, in circumstances where extradition is not possible. 2 The accumulation of evidence of its usage as a counter-terrorism technique by the USA in the context of the Central Intelligence Agency’s (CIA’s) Detention and Interrogation Programme 3 post-9/11 gave rise to a plethora of high-level investigations in Europe which concluded that many European States had colluded in the practice by facilitating the transportation of suspects through their airspace or airports. These sensational findings generated some degree of political accountability for the States involved and contributed to persistent demands from victims and civil society groups that legal consequences should follow, i.e. that complicit States in Europe should be held legally accountable for their actions or omissions at the domestic and international level. The concept of “accountability” thus became a powerful rallying cry in campaigns aimed at securing redress for victims and countering the prospect of extraordinary rendition being used as a counter-terrorist technique in the future. 4
However, the road to securing legal accountability has proved to be hard won. Numerous obstacles have been encountered both by victims and human rights organisations in many States in achieving what would seem to be an obviously meritorious goal. Chief amongst these has been the resolute denials by many States of the allegations of complicity made against them (let alone legal responsibility for same) and an outright refusal or resistance, usually on the basis of protecting national security, to conduct official investigations into whether their airports and airspace had been used for the purpose of extraordinary rendition. When attempts to secure accountability in domestic settings are spurned, attention inevitably turns to international bodies as forums of last resort for achieving accountability for victims as well as delineating bright-line legal principles to guide State responses in the future. As the book will show, significant progress has undoubtedly been made, particularly in recent years, in holding certain European States accountable under international human rights law for the role they played in supporting the Detention and Interrogation Programme. However, there can be little doubt but that the quest to hold many others accountable remains unfinished business. Further, and not surprisingly, there is still a degree of uncertainty about the scope and application of the legal principles arising.
At this remove, some may be tempted to regard concern about this issue as redundant and the phenomenon itself as a barbaric historical anachronism, borne of moral panic and unrestrained impulses for revenge by an administration grappling with the shock of 9/11. Indeed, the fact that the possibility of resort to extraordinary rendition by the USA was consistently downplayed (though never categorically ruled out) during the years of President Obama’s administration helped to diminish the spotlight on torture and extraordinary rendition for most of his term. The election of Donald Trump as President in 2017, however, and the ensuing appointment of many officials associated with the CIA’s Detention and Interrogation Programme to key positions of influence in his administration in recent months, has prompted renewed speculation that resort to torture and extraordinary rendition might resurface as “legitimate” counter-terrorist measures on the part of his administration. Moreover, there is certainly evidence that extraordinary rendition and similar practices are currently being deployed by other regimes, including the Russian Federation. 5 In this politically volatile climate, the case for pursuing accountability and transparency regarding the CIA programme has intensified rather than diminished.
With this new context in mind, this book seeks to contribute to existing analysis on the prospects of achieving accountability at the international level on the part of European States for complicity in extraordinary rendition. It aims to do so by seeking to understand what the main stumbling blocks have been in establishing legal accountability for all European States accused of complicity in the CIA’s Detention and Interrogation Programme and to provide a coherent account of the main principles emerging from the case law in this area. At the outset, the book seeks to distinguish between the various forms of accountability that may be sought in respect of extraordinary rendition and to explain how the process of establishing “legal accountability” within the framework of international law and international human rights law differs from (yet potentially contributes to) more diverse ways of establishing political accountability. Further, it seeks to illuminate how the term “complicity” is likewise a complex phenomenon for which different meanings and consequences flow, depending on the context in which it is being interpreted. In this respect, the book aims to illuminate how accusations of complicity at the political level are arguably easier to sustain than arguments that a State is complicit, and hence responsible, for facilitating extraordinary rendition as a matter of international human rights law. By seeking to unravel the conceptual confusion arising from these terms, as well as the discernible lines of legal reasoning in the case law, the ultimate aim of the book is to determine whether international human rights law is capable of rising to the expectations set for it to resolve impunity for extraordinary rendition and to deter the practice in the future.
Defining “Extraordinary Rendition”
Before commencing the journey, it is worth pausing to reflect on the precise meaning and scope of “extraordinary rendition”. First, it is a practice that must be distinguished from other forms of obligatory transfer of individuals by sovereign states, such as the traditional methods of extradition and deportation. These latter methods of removal normally take place within the framework of an international treaty and/or domestic law, thus providing a regulatory structure through which the legality of the transfer can be challenged, if needs be on human rights law grounds. 6 One step removed from these more orthodox methods of transfer is the so-called practice of “ordinary rendition” or “rendition to justice” which involves the apprehension by a State of an individual on foreign territory (with or without the cooperation of the host State) in order to bring them to trial in another State outside the normal channels of extradition law. 7 Domestic courts differ on the legal effects of ordinary rendition 8 and the lawfulness of its usage as a matter of international law as well as international human rights law is not entirely clear. 9 It may be deduced, for example, that ordinary rendition does not necessarily breach international law where the foreign state aids in or acquiesces in the abduction. 10 The author of arguably the most damning investigatory report on European States’ complicity in extraordinary rendition, for example, has suggested that “rendition” may not per se constitute a breach of international human rights law, provided that its purpose is to bring a terrorist suspect within a recognised judicial process which respects human rights. 11 In this respect, the judgment of the European Court of Human Rights (ECtHRts) in Öcalan v Turkey provides a qualified imprimatur for Contracting States to the European Convention on Human Rights (“ECHR”) in regard to rendition-like activities. 12 The Court in that case held that the extraterritorial arrest and detention of a terrorist suspect by a Contracting State, provided it complies with the domestic law of the Contracting State and is effected in a manner that is not inconsistent with the sovereignty of the host state, may not breach Article 5(1) of the Convention. 13 Thus, the arrest by the Contracting State must be “in accordance with a procedure prescribed by law” both domestic and international, to comply with the Convention, thereby taking it out of the realm of unlawful rendition sensu stricto. 14
According to the Council of Europe’s Venice Commission, the term “extraordinary rendition”, as opposed to ordinary rendition, appears to be used “…[w]hen there is little doubt that the obtaining of custody over a person is not in accordance with the existing legal procedures applying in the State where the person is situated at the time”. 15 Elsewhere it has been defined as “…the transfer of an individual, with the involvement of the United States or its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture, cruel, inhuman, or degrading treatment”. 16 These definitions emphasise different elements of what appears in substance to be a multifaceted breach of human rights. A more encompassing definition of the practice was first articulated by the ECtHRts in the case of Ahmad and Others v United Kingdom...