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Briefing Library European Parliament Library Briefing Library of the European Parliament 18/01/2012 Extraordinary rendition of terrorism suspects The EU Member States' alleged assistance to the CIA SUMMARY Following 9/11, the Bush In this briefing: Administration established an "extraordinary Context rendition" system, whereby terrorism suspects were transferred, secretly detained and Human rights issues interrogated outside the US. Obstacles to investigation There has been growing evidence of EU Inquiries in Member States suspected of Member States' (MS) collaboration with the secret detention US, allegedly including stopovers by US aircraft at European airports and the setting European Parliament's position up of secret detention sites in three MS. This Main references would arguably amount to serious violations of international human rights law. Context The European Parliament and the Council of Europe (CoE) have investigated those The term “extraordinary rendition” denotes allegations and initiated judicial and the extra-judicial transfer of a suspect parliamentary investigations in individual MS. between countries, in contrast to the However, the investigators' work was hindered formalised process of extradition, i.e. the by the refusal of both the US and European universally accepted form of rendition governments to disclose information, in most regulated by bilateral agreements.1 cases on grounds of "state secrecy". In November 2005, Human Rights Watch No criminal proceedings against agents (HRW), the Washington Post and ABC televi- involved in extraordinary rendition could be sion reported that, following 9/11, the CIA initiated in the US. Those in the EU have not led had been running an extraordinary to the extradition of American agents. rendition programme for terrorism suspects Amongst the EU institutions, the European outside the US. These allegations were soon Parliament has been the major proponent of corroborated by other disclosures by press holding MS accountable for their participation and NGOs. In September 2006, President in irregular rendition. It severely criticised the George W. Bush confirmed the existence of Council and MS governments for not doing such a programme. enough to shed light on the actions of their Secret transfers secret services. The US programme involved illegally abducting or arresting individuals in one state and transferring them by military or CIA flights to the Guantánamo facility or to ”black sites” (secret prisons) located in third countries, many of them with no legal protection against torture. The suspects were typically held in secret and “incommunicado” detention (the authorities denied or refused to confirm the Image Copyright Stephanie Swartz, 2012. Used under licence from Shutterstock.com detention, and detainees had no access whatsoever to the outside world, including to family, judicial authorities and legal Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 1 of 6 Library Briefing Extraordinary rendition of terrorism suspects counsel). Those “ghost detainees” were also Poland, Romania, and subsequently also subjected to practices referred to by Lithuania, evidence was found of the President Bush as “enhanced interrogation existence of secret detention sites set up for techniques“ or “an alternative set of proce- use by the CIA. Moreover, officials of some dures“, some of which are widely believed to MS allegedly interrogated prisoners at amount to torture. Guantánamo and other secret detention facilities. MS' alleged complicity Whilst MS governments have consistently If these allegations are true, it would mean denied such allegations, there has been that several MS have seriously breached growing evidence of MS' cooperation with their obligations as regards the protection of the US authorities in extraordinary rendition. human rights stemming from both As early as 2006 and 2007, the CoE Special international and EU law. Such a conclusion Rapporteur, Dick Marty, and the European would be given further weight by the fact Parliament issued reports providing a that some of the detainees were EU citizens detailed account of this cooperation. Further or individuals legally resident in the EU. evidence was presented in the 2010 UN Joint Study on Global Practices in Relation to Secret Detention and two other CoE Human rights issues reports.2 Several elements of the extraordinary The evidence gathered strongly suggests rendition programme raise doubts as to MS' that, between the end of 2001 and the end compliance with international human rights of 2005, at least 1 245 flights operated by instruments. This seems particularly the case the CIA and an unspecified number of with respect to the way suspects were military flights entered European airspace or abducted, their ill-treatment in detention, stopped over at airports in MS and some and their transfer to countries in which they other European countries. were likely to be subjected to torture. The MS concerned were Austria, Belgium, The norms of human rights law which could Cyprus, Denmark, Germany, Greece, Ireland, be applied with respect to extraordinary Italy, Lithuania, Poland, Portugal, Romania, renditions include the prohibition of: Spain, Sweden and the UK. With respect to Figure 1 - The global "spider's web" of secret detention and unlawful inter-state transfers Stopover points Pick-up points Staging points Detainee transfer / drop-off points Prestwick Stockholm Shannon Frankfurt Szymany Prague Ramstein Timisoara Bangor Aviano Tuzla Bucharest Rome Skopje Tashkent Palma de Mallorca Baku Incirlik Washington Athens Santa Maria Larnaca Baghdad Algiers Kabul Rabat Amman Cairo Islamabad Guantanamo Banjul Source: Council of Europe Parliamentary Assembly, 2006. Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 2 of 6 Library Briefing Extraordinary rendition of terrorism suspects inhuman or degrading treatment The 2007 International Convention torture for the Protection of All Persons from Enforced Disappearance. refoulement (transfer to a country where a risk of torture exists), and There are no mechanisms however to enforced disappearances (depriv- guarantee the enforcement of these ation of liberty, followed by the conventions. concealment of the detainee's fate or The Council of Europe whereabouts and placing them EU MS are all members of the CoE, and so outside the protection of law). the European Convention on Human Rights The fact that MS agents were not directly applies to them. Therefore, non-compliance involved in most of the alleged acts would with Articles 2, 5 and 6, and, most not appear to waive their responsibility for importantly, Article 3 ECHR may lead to breaches of human rights which reportedly cases before the European Court of Human occurred. Rights (ECtHR) These provisions are enforceable however only to the extent that In this connection, it is widely held that in CoE members are willing to implement the case of surrender of a person, ECtHR judgements. diplomatic assurances of the US position on extraordinary receiving state are insuffi- rendition and international law Several detainees have cient to guarantee the filed cases before the Following 9/11, the US argued that ECtHR (e.g. Al Nashiri v. sending state's compliance neither the traditional instruments of Poland, Othman (Abu with human rights law. criminal law nor the laws of war Moreover, it is argued that (including the Geneva Conventions) Qatada) v. the UK, Babar the activities of foreign intel- applied to terrorism. The category of Ahmad and others v. the ligence services operating in "unlawful enemy combatant" was UK, and Abu Zubaydah v. the EU may be subject to less introduced with respect to terrorism Lithuania). The applicants stringent legal provisions suspects who could thus be detained claim the responsibility of than those of the MS and for indefinite time without any access MS for participation in to the US judicial system. Moreover, should thus be monitored. violations of human rights the US consistently held that human This was not the case for and for failure to conduct rights conventions only apply to the effective investigations. American military bases territory of the ratifying state and 3 located in the EU. therefore cannot be invoked in EU law and human International law respect of the programme operating rights instruments outside the US. The Lisbon Treaty has The UN instruments changed the human Relevant UN instruments include: rights architecture of the EU, by giving the EU Charter of Fundamental Rights binding Convention against Torture and force equal to the Treaties. Its provisions Other Cruel, Inhuman or Degrading may therefore be enforced by the Court of Treatment or Punishment, and in Justice of the European Union (CJEU). particular Article 3 which prohibits the transfer of individuals to states This does not however open the door for where they would be in danger of individuals to hold MS accountable for their being subjected to torture. past actions in the area of secret services' cooperation, which is outside EU International Covenant on Civil and competence. Political Rights, and in particular Article 7 prohibiting torture and cruel or degrading treatment. Author: Piotr Bąkowski 120256REV1 E-mail: [email protected] Tel: 41131 Page 3 of 6 Library Briefing Extraordinary rendition of terrorism suspects Obstacles to investigation position to determine the scope of a parliamentary investigative mandate. In the MS concerned, various state
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