The Legal Regime Governing Transfer of Persons in the Fight against Terrorism
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Description
Crimes of terrorism are frequently committed by individuals and groups in countries other than those they target. Even when ‘home-grown’ terrorists are responsible for violent acts, they often flee across borders to evade justice. States seeking to punish acts of terrorism therefore regularly need to obtain custody of individuals accused of committing such acts. They may do so by requesting the extradition or deportation of a suspect from a state where the individual is found. States also directly apprehend suspected terrorists in other countries and deliver them to justice before their own or third states’ courts through ‘rendition to justice’. Finally, when terrorism occurs in the context of armed conflict, states may move suspects from one state to another through wartime processes such as the transfer of prisoners of war. In short, states use both formal and informal processes when transferring individuals suspected of terrorist crimes. The practice of rendition—the involuntary transfer of an individual across borders without recourse to extradition or deportation proceedings—is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos ‘the Jackal’ (Ilich Ramirez Sanchez) from Sudan to France. Although such renditions have been controversial in human rights circles, they have been celebrated by many as crucial in the fight against impunity for grave crimes and are sometimes called ‘rendition to justice’. The administration of former US President George W. Bush was criticized for the new practice of ‘extraordinary rendition’—the transfer of suspects to countries known for the systematic use of torture. US officials at the time defended the practice, relying on justifications developed to support ‘rendition to justice’ and arguing that the practice was legal. Despite these justifications, international human rights bodies and intergovernmental bodies including the Council of Europe, the European Union and human rights bodies of the United Nations have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the US legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited. Despite this consensus, the United States is not the only country that appears to have used the practice in the context of counter-terrorism. Reports indicate that governments in East Africa and the Horn of Africa have conducted extraordinary renditions in recent years. Ethiopia has been criticized for allegedly ‘abducting terrorism suspects from other countries’ and subjecting them to torture and secret detention, and Kenya has been accused of abducting and transferring suspects to the custody of Uganda, Somalia and Ethiopia, where they have been subjected to torture or cruel, inhuman or degrading treatment. There is no consensus concerning the practice of informal transfers—renditions of the non-‘extraordinary’ kind—more generally in the context of counter-terrorism efforts. In part this lack of consensus comes from the varied contexts in which informal transfers occur. Such transfers include the movement of individuals captured on the battlefield in Afghanistan to the detention facility at Guantánamo, the transfer of individuals captured in a variety of settings to secret offshore detention centres, the transfer of individuals detained by one state to the custody of their own state of nationality (sometimes for trial, but often simply for detention), and the transfer of individuals to the territory of the transferring state to stand trial before a regular criminal court. Soon after US President Barack Obama was inaugurated in January 2009, he promised to end the most severe human rights violations carried out by the US government in the name of fighting terrorism, including the use of torture and secret detention facilities. Although he signed Executive Orders ending the use of such practices, he did not order the cessation of rendition, defined as the transfer of an individual without the benefit of judicial or administrative proceedings. Instead, he formed a Task Force to examine the issue and to compile recommendations about how the process could be brought back in line with US law and international obligations. In July 2009, this Task Force recommended some improvements in the use of diplomatic assurances—promises from countries receiving detainees upon which the United States has relied when transferring individuals to states where they may face a risk of torture. However, the Task Force did not recommend any significant reform of rendition itself. The US practice of rendition has continued, and along with it controversy over the practice, since many governments have critiqued the US use of rendition while failing to formulate clear policies for their own actions in connection with the transfer of terrorism suspects.
Source Publication
Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges
Source Editors/Authors
Larissa van den Herik, Nico Schrijver
Publication Date
2013
Recommended Citation
Satterthwaite, Margaret L., "The Legal Regime Governing Transfer of Persons in the Fight against Terrorism" (2013). Faculty Chapters. 1795.
https://gretchen.law.nyu.edu/fac-chapt/1795
