Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states
AS/Jur (2006) 16 Part II
7 June 2006
Committee on Legal Affairs and Human Rights
Draft report – Part II (Explanatory memorandum)
Rapporteur: Mr Dick Marty, Switzerland, ALDE
C. Explanatory memorandum
by Mr Dick Marty, Rapporteur
10. Legal perspectives
10.1. The point of view of the United States
265. In May 2006 the United States sent its first state delegation to the United Nations Committee against Torture (UN CAT) since the Bush Administration came to power. The delegation was headed by the Chief Legal Advisor to the Department of State, Mr John Bellinger.
266. Mr Bellinger oversaw the presentation of a 184-page submission to UN CAT, in which the United States set out its ‘exhaustive written responses’ to most of the Committee’s list of issues. The United States should certainly be commended for this level of engagement, notwithstanding that its policy regarding secret detentions and intelligence activities remained, for the most part, at a firm “no comment”230.
267. There can have been few more opportune times at which to engage Mr Bellinger on discussion of pertinent legal issues than in the week of his return from the UN CAT to Washington, DC. In a briefing lasting about one hour231, Mr Bellinger and his colleague Dan Fried, Assistant Secretary of State for European Affairs, provided us with a range of valuable perspectives, which I think it worthwhile to reflect fully in this report as the best contemporary first-hand portrayal of the US legal position.
268. Mr Bellinger made clear on several occasions that a programme of renditions remains a key strand of United States’ foreign policy: “As Secretary Rice has said, we do conduct renditions, we have conducted renditions and we will not rule out conducting renditions in the future.”
269. He was very decisive, however, in drawing a distinction between the original meaning of rendition and the popular, media-driven notion of Extraordinary Rendition:
“To the extent that extraordinary rendition – as I have seen it defined – means the intentional transfer of an individual to a country, expecting or intending that they will be mistreated, then the United States does not do extraordinary renditions to begin with.
The United States does not render people to other countries for the purpose of being tortured, or in the expectation that they will be tortured.”
270. Dan Fried used the briefing to explain some of the underlying considerations for the United States in pursuit of its ’war on terror’:
“We are attempting to keep our people safe; we are attempting to fight dangerous terrorist groups who are active and who mean what they say about destroying us. We are trying to do so in a way consistent with our values and our international legal obligations.
Doing all of those things in practice is not easy, partly because – as we’ve discovered as we’ve gotten into it – the struggle we are in does not fit neatly either into the criminal legal framework, or neatly into the law of war framework.”
271. With regard to the question of fitting into legal frameworks, I find it particularly noteworthy that the United States does not see itself bound to satisfy anyone’s interpretation of international law but its own. Mr Bellinger continually expressed this view:
“We have to comply with our legal obligations. None of this can be done in an illegal way. We think from our point of view that we comply with all the legal obligations we have.”
272. Similarly, in one of his longer explanations, Mr Bellinger defended the United States’ record in the eyes of its European partners:
“For those who say we’re not following our international obligations in certain cases, I have to say that sometimes it comes down to a disagreement on what the obligation is.
With regard to Article 3 of CAT, this is a technical issue. The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States.
So we think that Article 3 of the CAT is legally binding upon us with respect to transfers of anyone from the United States; but we don’t think it is legally binding outside the United States.
Similarly the Senate of the United States and our courts for more than ten years have taken a position that the words ’substantial grounds’ means ’more likely than not’. If we transfer a person from one point outside the United States to another point outside the United States then, as a policy matter, if we think there are substantial grounds to believe that the individual will be tortured or mistreated, we follow the same rules. I think it is a reasonable position for our courts to have set – that ’substantial grounds’ means ‘more likely than not’.
What I can say, though, is that there are different legal regimes between the European Court of Human Rights and our courts, and you can’t ‘beat up’ our courts and our Senate based on some things that they said ten years ago as how they interpret the law.
You may wish that the ECtHR interpretation of the CAT was the same position that we have here, but it is not. We do, though, take our legal obligations seriously. And there needs to be a recognition that there may be different interpretation of the terms, but nonetheless the United States still takes our legal obligations seriously – and we do that.”
Mr Bellinger’s interpretation also serves to explain why a detention facility like Camp Delta is situated at Guantanamo Bay, in Cuba, and not in the desert of Arizona. The United States’ formalistic and positivist approach shocks the legal sensibilities of Europeans, who are rather influenced by ‘teleological’ considerations. In other words, the European approach is to opt for an interpretation that affords maximum protection to the values on which the legal rule is based.
273. Mr Bellinger was predictably reluctant to discuss the legal issues surrounding any of the cases of rendition that are alleged to have occurred, including the case studies treated in this report. He cited a considered policy on the part of the US Government to refrain from commenting:
“We have thought seriously about whether we can answer specific questions publicly and say that there were one, two, or three renditions and where they went through. But we have concluded that, due to the nature of intelligence activities, we simply cannot get into the business of confirming or denying specific questions – as much as we would like to. I’m not going to confirm or deny whether there have been any renditions that have gone through Europe at all.”
274. The United States Government is always prepared, however, to explain the “hard choices” it feels it has to make to protect its citizens232. Mr Bellinger, for his part, described a hypothetical “policy dilemma” based loosely on a real-life scenario, where a member of Al-Qaeda is captured at the Kenyan border, “trying to enter the country but the Kenyans don’t want him there”. The captive is known to be wanted by “some other country such as Egypt, Pakistan or Jordan” and the United States has an aircraft it could use to render him back. Mr Bellinger concluded his briefing by characterising the choice:
“If the choice is between letting a person go who’s suspected of involvement in terrorism, or taking them back to their country of nationality, or some other country where they’re wanted – then that’s your choice, because there’s no extradition treaty and you obviously don’t want us to put more people in Guantanamo.
If the choice is whether the person will disappear and be let go, or the country of his nationality or some other country wants him back, and the US is able to provide that – what should be done? That’s your choice.
The United States says there are cases where in fact rendition might make sense.”
10.2. The point of view of the Council of Europe
10.2.1. The European Commission for Democracy through Law (Venice Commission)
275. The legal issues raised by the facts examined in this report, from the point of view of the Council of Europe, have been set out clearly and precisely by the Venice Commission, whom the Committee on Legal Affairs and Human Rights had asked for a legal opinion in December 2005233.
276. In its conclusion, the Venice Commission stresses the responsibility of the Council of Europe’s member States to secure that all persons within their jurisdiction enjoy internationally agreed fundamental rights (including the right to security of the person, freedom from torture and right to life), even in the case of persons who are aboard an aircraft that is simply transiting through its airspace234. The Venice Commission also confirms that the obligations arising out of the numerous bilateral and multilateral treaties in different fields such as collective self-defence, international civil aviation and military bases, “do not prevent States from complying with their human rights obligations”235.
277. In reply to the specific questions asked by the Committee on Legal Affairs and Human Rights, the Venice Commission has drawn the following conclusions:
“As regards arrest and secret detention
a) Any form of involvement of a Council of Europe member State or receipt of information prior to an arrest within its jurisdiction by foreign agents entails accountability under Articles 1 and 5 of the European Convention on Human Rights (and possibly Article 3 in respect of the modalities of the arrest). A State must thus prevent the arrest from taking place. If the arrest is effected by foreign authorities in the exercise of their jurisdiction under the terms of an applicable Status of Forces Agreement (SOFA), the Council of Europe member State concerned may remain accountable under the European Convention on Human Rights, as it is obliged to give priority to its jus cogens obligations, such as they ensue from Article 3.
b) Active and passive co-operation by a Council of Europe member State in imposing and executing secret detentions engages its responsibility under the European Convention on Human Rights. While no such responsibility applies if the detention is carried out by foreign authorities without the territorial State actually knowing it, the latter must take effective measures to safeguard against the risk of disappearance and must conduct a prompt and effective investigation into a substantiated claim that a person has been taken into unacknowledged custody.
c) The Council of Europe member State’s responsibility is engaged also in the case where its agents (police, security forces etc.) co-operate with the foreign authorities or do not prevent an arrest or unacknowledged detention without government knowledge, acting ultra vires. The Statute of the Council of Europe and the European Convention on Human Rights require respect for the rule of law, which in turn requires accountability for all form of exercise of public power. Regardless of how a State chooses to regulate political control over security and intelligence agencies, in any event effective oversight and control mechanisms must exist.
d) If a State is informed or has reasonable suspicions that any persons are held incomunicado at foreign military bases on its territory, its responsibility under the European Convention on Human Rights is engaged, unless it takes all measures which are within its power in order for this irregular situation to end.
e) Council of Europe member States which have ratified the European Convention for the Prevention of Torture must inform the European Committee for the Prevention of Torture of any detention facility on their territory and must allow it to access such facilities. Insofar as international humanitarian law may be applicable, States must grant the International Committee of the Red Cross permission to visit these facilities.
As regards inter-state transfers of prisoners
f) There are only four legal ways for Council of Europe member States to transfer a prisoner to foreign authorities: deportation, extradition, transit and transfer of sentenced persons for the purpose of their serving the sentence in another country. Extradition and deportation proceedings must be defined by the applicable law, and the prisoners must be provided appropriate legal guarantees and access to competent authorities. The prohibition to extradite or deport to a country where there exists a risk of torture or ill-treatment must be respected.
g) Diplomatic assurances must be legally binding on the issuing State and must be unequivocal in terms; when there is substantial evidence that a country practices or permits torture in respect of certain categories of prisoners, Council of Europe member States must refuse the assurances in cases of requests for extradition of prisoners belonging to those categories.
h) The prohibition to transfer to a country where there exists a risk of torture or ill-treatment also applies in respect of the transit of prisoners through the territory of Council of Europe member States: they must therefore refuse to allow transit of prisoners in circumstances where there is such a risk.
As regards overflight
i) If a Council of Europe member State has serious reasons to believe that an airplane crossing its airspace carries prisoners with the intention of transferring them to countries where they would face ill-treatment in violation of Article 3 of the European Convention on Human Rights, it must take all the necessary measures in order to prevent this from taking place.
j) If the state airplane in question has presented itself as a civil plane, that is to say it has not duly sought prior authorisation pursuant to Article 3 c) of the Chicago Convention, the territorial State must require landing and must search it. In addition, it must protest through appropriate diplomatic channels.
k) If the plane has presented itself as a state plane and has obtained overflight permission without however disclosing its mission, the territorial State cannot search it unless the captain consents. However, the territorial State can refuse further overflight clearances in favour of the flag State or impose, as a condition therefor, the duty to submit to searches; if the overflight permission derives from a bilateral treaty or a Status of Forces Agreement or a military base agreement, the terms of such a treaty should be questioned if and to the extent that they do not allow for any control in order to ensure respect for human rights.
l) In granting foreign state aircraft authorisation for overflight, Council of Europe member States must secure respect for their human rights obligations. This means that they may have to consider whether it is necessary to insert new clauses, including the right to search, as a condition for diplomatic clearances in favour of State planes carrying prisoners. If there are reasonable grounds to believe that, in certain categories of cases, the human rights of certain passengers risk being violated, States must indeed make overflight permission conditional upon respect of express human rights clauses. Compliance with the procedures for obtaining diplomatic clearance must be strictly monitored; requests for overflight authorisation should provide sufficient information as to allow effective monitoring (for example, the identity and status (voluntary or involuntary passenger) of all persons on board and the destination of the flight as well as the final destination of each passenger). Whenever necessary, the right to search civil planes must be exercised.
m) With a view to discouraging repetition of abuse, any violations of civil aviation principles in relation to irregular transport of prisoners should be denounced, and brought to the attention of the competent authorities and eventually of the public. Council of Europe member States could bring possible breaches of the Chicago Convention before the Council of the International Civil Aviation Organisation pursuant to Article 54 of the Chicago Convention.
n) As regards the treaty obligations of Council of Europe member States, the Commission considers that there is no international obligation for them to allow irregular transfers of prisoners or to grant unconditional overflight rights, for the purposes of combating terrorism. The Commission recalls that if the breach of a treaty obligation is determined by the need to comply with a peremptory norm (jus cogens), it does not give rise to an internationally wrongful act, and the prohibition of torture is a peremptory norm. In the Commission’s opinion, therefore, States must interpret and perform their treaty obligations, including those deriving from the NATO treaty and from military base agreements and Status of Forces Agreements, in a manner compatible with their human rights obligations.”
10.2.2 The Secretary General of the Council of Europe (Article 52 ECHR)
278. The Secretary General has made use of his power of enquiry under Article 52 ECHR as rapidly and as completely as possible. In his report dated 28 February 2006236, the Secretary General takes a clear position as regards member States’ responsibilities:
“The activities of foreign agencies cannot be attributed directly to States Parties. Their responsibility may nevertheless be engaged on account of either their duty to refrain from aid or assistance in the commission of wrongful conduct, acquiescence and connivance in such conduct, or, more generally, their positive obligations under the Convention. 5 In accordance with the generally recognised rules on State responsibility, States may be held responsible of aiding or assisting another State in the commission of an internationally wrongful act. 6 There can be little doubt that aid and assistance by agents of a State Party in the commission of human rights abuses by agents of another State acting within the former’s jurisdiction would constitute a violation of the Convention. Even acquiescence and connivance of the authorities in the acts of foreign agents affecting Convention rights might engage the State Party’s responsibility under the Convention. Of course, any such vicarious responsibility presupposes that the authorities of States Parties had knowledge of the said activities.”237
As regards the result of the Secetary General’s request for information, the report of 28 February concludes in a preliminary fashion that “all forms of deprivation of liberty outside the regular legal framework need to be defined as criminal offences in all States Parties and be effectively enforced. Offences should include aiding and assisting in such illegal acts, as well as acts of omission (being aware but not reporting), and strong criminal sanctions should be provided for intelligence staff or other public officials involved in such cases. However, the most significant problems and loopholes revealed by the replies concern the ability of competent authorities to detect any such illegal activities and take resolute action against them. Four main areas are identified where further measures should be taken at national, European and international levels:
- the rules governing activities of secret services appear inadequate in many States; better controls are necessary, in particular as regards activities of foreign secret services on their territory;
- the current international regulations for air traffic do not give adequate safeguards against abuse. There is a need for States to be given the possibility to check whether transiting aircraft are being used for illegal purposes. But even within the current legal framework, States should equip themselves with stronger control tools;
- international rules on State immunity often prevent States from effectively prosecuting foreign officials who commit crimes on their territory. Immunity must not lead to impunity where serious human rights violations are at stake. Work should start at European and international levels to establish clear human rights exceptions to traditional rules on immunity;
- mere assurances by foreign States that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanisms need to be set out in agreements and national law in order to protect ECHR rights.”238
279. In this context, the Secretary General, referring to my information note of 21 January 2006, was worried about the fact that some countries have not replied, or have not replied completely, to his question concerning the involvement of any public official in such deprivation of liberty or transport of detainees, and whether any official investigation is under way or has been completed. Consequently, the Secretary General has asked additional questions to some countries. The replies are not yet in the public domain.
231 Detailed notes of the meeting with Mr Bellinger and transcripted comments are on file with the Rapporteur.
232 See Secretary Rice’s remarks upon her departure for Europe, Andrews Air Base, 5 December 2005: “Protecting citizens is the first and oldest duty of any government. Sometimes these efforts are misunderstood. I want to help all of you understand the hard choices involved, and some of the responsibilities that go with them.”
233 Opinion on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, adopted by the Venice Commission at its 66th Plenary Session (Venice, 17-18 March 2006) on the basis of comments by Mssrs Iain Cameron (Substitute Member, Sweden), Pieter van Dijk (Member, the Netherlands), Olivier Dutheillet de Lamothe (Member, France), Jan Helgesen (Member, Norway), Giorgio Malinverni (Member, Switzerland) and Georg Nolte (Substitute Member, Germany) – opinion no. 363/2005, CDL-AD(2006)009.
234 cf. Opinion cited above, paras. 143-146.
235 ibid., para. 156. See EU Network of Independent Experts on Fundamental Rights, Opinion No. 3-2006 on “The Human Responsibilities of the EU Member States in the Context of the CIA Activities in Europe (‘Extraordinary Renditions’), 25 May 2006, at page 7. The Network reaches the same conclusion on the basis of Article 6(1) EU.
236 SG/Inf (2006)5, available at the Council of Europe’s website (http://www.coe.int)
237 ibid., para. 23 ; see also the excellent analysis of the case law of the European Court of Human Rights regarding member States’ “positive obligations” in paras. 24-30
238 Ibid., p. 1 (non-official executive summary)