Torture, Rendition, and International Law

By JOANNE MARINER
Monday, May. 05, 2008

In September 2001, five days after the terrorist attacks that shocked the nation, Vice-President Dick Cheney announced on "Meet the Press" that the US government would need to start working "the dark side."

"We've got to spend time in the shadows in the intelligence world," he explained. "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 it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

In the months and years that followed, the public got occasional glimpses of Cheney's shadowy, no-holds-barred world. Even though, as Cheney promised, that world was shrouded in secrecy, journalists and human rights activists sometimes managed to see into it.

Maher Arar, a Canadian-Syrian telecommunications engineer, gave the public a detailed picture of that world in November 2003, when he told the story of his rendition to torture. Arar was detained at JFK Airport in September 2002, and then sent by the United States to Syria, via Jordan. He was held there in a dark, coffin-like cell, and brought out to be beaten with electrical cables.

"The cable is a black electrical cable, about two inches thick," Arar explained in a narrative of his experiences. "They hit me with it everywhere on my body."

Convention Against Torture

More stories like Arar's have since emerged. We now know that the CIA rendered people to several countries that practice torture as a matter of routine—countries that include Egypt, Jordan, Libya and Syria.

These renditions are and were illegal under international law. In particular, they violate U.S. obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified in 1994.

According to the Convention against Torture, torture is "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," when it is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." States violate the Convention against Torture not only by directly inflicting torture, but also, under article 3, when they "expel, return ('refouler') 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."

Rendition to torture is thus a clear violation of the prohibition against torture. Indeed, in a 2006 report, the UN Committee against Torture, the international expert body responsible for monitoring state compliance with the Convention against Torture, condemned U.S. use of the practice. It specifically found that the U.S. government's "rendition of suspects, without any judicial procedure, to States where they face a real risk of torture" violated the treaty.

The committee called upon the United States to "cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture."

Diplomatic Assurances

U.S. officials have tried to justify the CIA rendition practices by arguing that, where necessary, the CIA obtains assurances from the receiving country that detainees will not be tortured. Yet Human Rights Watch and other groups have shown, as an empirical matter, that such assurances are unreliable and do not provide effective protection against torture.

In a number of documented cases, people who have been returned to their home countries on the basis of such assurances have faced torture and other abuses.

One such case involves two suspects, Ahmed Agiza and Muhammad al-Zery, who were rendered by the United States to Egypt in December 2001. In a ruling on the case, the Committee against Torture rejected the claim that diplomatic assurances from the Egyptian government were sufficient to protect against torture. As the Committee emphasized, the "procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk."

Apology and Redress

International human rights law recognizes that victims of rights violations should be granted effective remedies, and the Convention against Torture specifically provides that torture victims have a right of access to the courts in order to obtain fair and adequate compensation.

To date, however, the US courts have proven hostile to victims of rendition, dismissing a lawsuit brought by a group of rendition victims that included Ahmed Agiza, as well as an earlier suit brought by Maher Arar. While the Canadian government acknowledged wrongdoing and compensated Arar for his suffering, the U.S. government did neither.

In choosing the dark side over compliance with the law, this administration has been unapologetic.


Joanne Mariner is a human rights lawyer based in New York and Paris. Her previous columns on U.S. "war on terror" practices are available in FindLaw's archive.

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