Extraordinary Rendition

Addressing the Challenges of Accountability

Elspeth Guild, Didier Bigo, Mark Gibney

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815387800
• eBook ISBN: 9781351172868
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

The US led programme of extraordinary rendition created profound challenges for the international system of human rights protection and rule of law. This book examines the efforts of authorities in Europe and the US to re-establish rule of law and respect for human rights through the investigation of the program and its outcomes.

The contributions to this volume examine the supranational and national inquiries into the US CIA-led extraordinary rendition and secret detention programme in Europe. The book takes as a starting point two recent and far-reaching developments in delivering accountability and establishing the truth: First, the publication of the executive summary of the US Senate Intelligence Committee (Feinstein) Report, and second, various European Court of Human Rights judgments regarding the complicity of several state parties and the incompatibility of those actions with the European Convention of Human Rights and Fundamental Freedoms (ECHR).

The collective volume provides the first stock-taking review of the state of affairs in the quest for accountability, and identifies significant obstacles in going even further -- as international law demands. It will be vital reading for students and scholars in a wide range of areas, including international relations, international law, public policy and counter-terrorism studies.

Part I

The Feinstein Report and its broader implications

1 The US Senate Select Intelligence Committee report (Feinstein Report) on the CIA extraordinary rendition programme

Perspectives from Europe

Elspeth Guild

Introduction

The close relationship between the European Union (EU) and the US is a matter of substantial pride in policy circles, both for the US¹ and EU² as well as for individual states.³ While there are issues where there is competition,⁴ oftentimes this apparent friction is simply the result of increased familiarity, which brings with it greater knowledge of divergences.⁵ The EU has an impressive range of agreements with the US – around 65 according to the Council’s treaties website. These range in form from exchanges of letters⁶ – a rather light form of agreement – to fully fledged conventions.⁷ The subject matter of these forms of cooperation also vary greatly, ranging from the Importation of Beef from Animals Not Treated with Certain Growth-Promoting Hormones to the processing and transference of financial messaging data from the EU to the US for the purposes of the Terrorist Finance Tracking Programme (so-called TFTP). Most of these agreements date from the 1990s onwards, following the trajectory of the EU as an international actor.

The extent, form and variety of EU–US agreements reveal the complexity of the web of relations and interdependencies between the two. In addition, many deal with issues of great sensitivity to various member states and the US. For example, the use of growth hormones in cattle has been highly politically sensitive in the EU, giving rise to friction in the World Trade Organization (WTO). The exchange of information on the tracking of financial transactions has been equally sensitive and has given rise to challenges before the Court of Justice of the European Union (CJEU).⁸ All the agreements depend on a high degree of trust and confidence among the parties that they will correctly apply the provisions of the agreements in good faith. States do not normally make agreements with countries they do not trust. The greater the variety of subject matters which the EU and US consider appropriate for agreements, the deeper the trust must be. Some areas of EU–US relations are well acknowledged as ones where common agreement is not possible. The example usually provided for this is the death penalty – prohibited in Europe and the subject of its own protocol to the European Convention on Human Rights, but a regular feature of the criminal justice system in the US. The continuing use of the death penalty by the US has been the subject of a challenge by Germany before the International Court of Justice (the LaGrand case 1999).⁹ The language of the Council of Europe regarding the human rights obligation of all states to abolish the death penalty is exceedingly strong.¹⁰ That the Council of Europe has de facto been a death-penalty-free zone since 1997 is very important to the human rights identity of the region. On the other hand, in the US the death penalty is considered normal and not a challenge to its identity as a liberal state, although there is a vocal (and growing) minority voice against the penalty even in the US.¹¹

This profound disagreement about the nature of human rights had to be brokered if the US and EU were to cooperate in the field of criminal justice. As a result, the EU–US extradition agreement recognises the difference of view between the two and makes provision for it in order to attempt to reduce friction over the subject. EU states cannot hand over suspects or prisoners to the US unless there are binding criminal justice assurances that the individuals will not be subject to the death penalty. As a result, the EU–US extradition agreement is able to be applied (as are the bilateral extradition agreements which a number of EU states have with the US). So far as those watching the issue are aware, US authorities have been scrupulous in respecting the agreements in this regard. No one extradited from the EU to the US has been subject to the death penalty. Should such an action take place though, the trust which has developed around the correct application of the extradition agreements would likely be disrupted, and national judges would be much less willing to agree to the extradition of suspects and prisoners to the US.

I have spent some time in this introduction on the death penalty issue as it provides a background to how EU–US relations, even on highly sensitive issues, can be resolved in favour of cooperation on surrounding subjects in ways which do not offend European sensibilities about human rights protection. However, for such an approach to work, there needs to be strict observance of the rule of law and full transparency so that everyone – the state authorities, the parties and civil society – are fully informed and aware of the compliance by all parties with the human rights undertakings of the authorities on both sides of the Atlantic. No prisoner or suspect transferred from Europe to the US can be subjected to the death penalty there without full transparency regarding the trial, sentence and outcome.

This chapter is about an area of cooperation where no such agreement or negotiation has taken place. It engages one of the most profound human rights in the universal panoply: the prohibition on torture.¹² Ensuring that there is no breach of this prohibition is of paramount importance to European countries. However, they have been found in breach of this prohibition, including in circumstances where they have sent a person to a friendly foreign country without ensuring first that the person would be protected from torture or inhuman or degrading treatment or punishment. There is an extensive case law of the European Court of Human Rights (ECtHR) on this obligation to ensure that people are not sent to a country where there is a real risk they will suffer torture or even to a country where there is a real risk they will be expelled onwards to a third country where such a risk exists.¹³ In this area, the ECtHR has occasionally accepted assurances from foreign states that they will refrain from torturing a person who is subject to an expulsion order from a European country. But the robustness of such assurances is always in question, and the mechanisms for real supervision and enforcement are put under the microscope. In the field of intelligence operations, the transparency necessary for confidence that a foreign country will comply with assurances given by their authorities is rarely there.¹⁴

Elsewhere in this book, the decisions of the ECtHR regarding member states of the Council of Europe that participated in the CIA extraordinary rendition programme are examined and assessed.¹⁵ So far, all of these cases have led to a condemnation of the relevant state for its actions in assisting the programme. European states must not participate, encourage or otherwise engage with torture. Indeed, they are prohibited from making use of information where there is a risk that it was obtained through torture in any court proceedings except for the purposes of a prosecution of the person alleged to have committed the act.¹⁶ There is no question of reaching agreement with other countries if torture is an issue. In light of this absolute prohibition on torture in Europe, how should we understand the findings of the majority of the US Senate Intelligence Committee established to investigate the CIA extraordinary rendition programme?

From a European perspective, the findings of the Senate Committee are chilling. There are many aspects which raise concerns, and a detailed analysis follows below. However, a culpable degree of complicity of various European authorities is now fully established. As Bigo covers later in this volume, within the Senate Committee the minority has been very vocal in diminishing the report and the knowledge it creates, suggesting alternative readings of the findings which cast a less problematic light on the programme itself. Moreover, the president-elect in 2016 has openly supported the CIA programme, leading to the difficult question about what this means for EU–US relations.¹⁷

Many of the EU–US agreements and all of the agreements which have counterterrorism among their objectives are based on the assumption of shared values between the EU and the US. For instance, the EU–US passenger name records agreement of 2011 states in its recital (3) that parties are “CONVINCED that information sharing is an essential component in the fight against terrorism and serious transnational crime and that in this context, the processing and use of passenger name records (PNR) is a necessary tool that gives information that cannot be obtained by other means” and, in recital (4), that they are “DETERMINED to prevent and combat terrorist offences and transnational crime, while respecting fundamental rights and freedoms and recognising the importance of privacy and the protection of personal data and information”. The problem, following the extraordinary rendition programme and its outcomes, is that the US approach to the “fight against terrorism” does not necessarily take place in a context where European human rights obligations are respected. While the PNR agreement permits the US authorities access to all airlines passenger name records in respect of flights to and over the US, it also permits these authorities the copying, retention and exchange/transmission of this personal data with all law enforcement authorities in the US. While the recitals provide comfort regarding respect for privacy,¹⁸ there is nothing about avoiding the use of PNR data for purposes which lead to torture. Yet in the light of the Feinstein Report, such a recital would be well justified. Even the assurances about privacy sound rather hollow after the fissures which have appeared between EU and US legal appreciations of privacy in the Schrems affair against Facebook’s use of personal data.¹⁹

The impact of the CIA extraordinary rendition programme does not end with the cessation of that specific programme by the president. One can well deplore the fact that not one victim of the programme has been able to make a claim for compensation in the US against those who tortured him (they were all men as far as the report indicates).²⁰ It also has a lasting impact on all cooperation between the EU and the US that deals with sensitive issues of the individual’s rights and his/her protection. Unlike the EU–US extradition agreement, which recognises a profound difference of appreciation between the two regarding human rights and provides protection for individuals that is consistent with the obligations of European states, no agreement can ‘legalise’ participation in torture for EU states. For fairly obvious reasons, bilateral agreements which prohibit torture of a specific person or even in general would be politically unpalatable. It would be most odd if the US and EU, both parties to the UN Convention Against Torture, should enter into agreements in specific areas which prohibit torture. The suggestion in an agreement of such limited scope is the a contrario argument – if torture is only prohibited in these circumstances, does that mean it is overlooked in others? The substantive difference between law enforcement activities such as extradition and intelligence operations that go ‘live’, like the extraordinary rendition programme, is that the rules of...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• List of contributors
• Introduction
• PART I: The Feinstein Report and its broader implications
• PART II: Achieving accountability?
• PART III: (Re-)establishing the rule of law
• Index