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Transnational Injustices National Security Transfers and International ISBN 978-92-9037-253-0 Transnational Injustices National Security Transfers and International Law Transnational Injustices Transnational Law and International National Security Transfers ICJ Commission Members September 2017 (for an updated list, please visit www.icj.org/commission) Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes Acting President: and protects human rights through the Rule of Law, by using Prof. Robert Goldman, United States its unique legal expertise to develop and strengthen national and international justice systems. Vice-President: Established in 1952 and active on the fi ve continents, the ICJ Justice Michèle Rivet, Canada aims to ensure the progressive development and eff ective implementation of international human rights and international Executive Committee: humanitarian law; secure the realization of civil, cultural, economic, Prof. Carlos Ayala, Venezuela political and social rights; safeguard the separation of powers; Justice Azhar Cachalia, South Africa and guarantee the independence of the judiciary and legal Prof. Andrew Clapham, UK profession. Ms Imrana Jalal, Fiji Ms Hina Jilani, Pakistan Justice Radmila Dragicevic-Dicic, Serbia ® Transnational Injustices: National Security Transfers and Mr Belisário dos Santos Júnior, Brazil International Law Other Commission Members: © Copyright International Commission of Jurists Prof. Kyong-Wahn Ahn, Republic of Korea Justice José Antonio Martín Pallín, Spain Justice Adolfo Azcuna, Philippines Prof. Juan Méndez, Argentina Graphic Design: Eugeny Ten Mr Muhannad Al-Hasani, Syria Justice Charles Mkandawire, Malawi Mr Abdelaziz Benzakour, Morocco Mr Kathurima M’Inoti, Kenya Justice Ian Binnie, Canada Justice Yvonne Mokgoro, South Africa The ICJ permits free reproduction of extracts from any of its publications provided that due acknowledgment is given Sir Nicolas Bratza, UK Justice Sanji Monageng, Botswana and a copy of the publication carrying the extract is sent to Mr Reed Brody, United States Justice Tamara Morschakova, Russia its headquarters at the following address: Prof. Miguel Carbonell, Mexico Justice Egbert Myjer, Netherlands Justice Moses Chinhengo, Zimbabwe Justice John Lawrence O’Meally, Australia International Commission of Jurists Ms Roberta Clarke, Barbados–Canada Justice Fatsah Ouguergouz, Algeria P.O. Box 91, Justice Elisabeth Evatt, Australia Dr Jarna Petman, Finland 33, Rue des Bains, Mr Roberto Garretón, Chile Prof. Mónica Pinto, Argentina Geneva, Prof. Jenny E. Goldschmidt, Netherlands Prof. Victor Rodriguez Rescia, Costa Rica Switzerland Prof. Michelo Hansungule, Zambia Mr Alejandro Salinas Rivera, Chile Ms Gulnora Ishankanova, Uzbekistan Prof. Marco Sassoli, Italy–Switzerland Mr Shawan Jabarin, Palestine Justice Ajit Prakash Shah, India Justice Kalthoum Kennou, Tunisia Justice Kalyan Shrestha, Nepal Prof. David Kretzmer, Israel Mr Raji Sourani, Palestine Prof. César Landa, Peru Justice Philippe Texier, France Justice Ketil Lund, Norway Justice Stefan Trechsel, Switzerland Justice Qinisile Mabuza, Swaziland Prof. Rodrigo Uprimny Yepes, Colombia Transnational Injustices National Security Transfers and International Law 2 TRANSNATIONAL INJUSTICES: NATIONAL SECURITY TRANSFERS AND INTERNATIONAL LAW CONTENTS I. INTRODUCTION ........................................6 1.1 What is an international transfer?. .7 1.2 What is a national security threat?. 7 1.3 Conclusions. 9 II. INTERNATIONAL HUMAN RIGHTS LAW APPLICABLE TO ALL TRANSFERS ............................................10 2.1 International law and counter-terrorism . .10 2.2 The principle of non-refoulement. 11 2.3 Refugee status under international law. 16 2.4 Other forms of international protection. 17 2.5 The right to privacy and the right to family life . 18 2.6 Procedural rights . .20 2.7 The role of international law in domestic law. 22 III. EXTRADITION .......................................25 3.1 The international framework of criminal justice cooperation and extradition . 26 3.1.1 Extradition in UN criminal justice cooperation . 26 3.1.2 Extradition within the Council of Europe . 27 3.1.3 Criminal cooperation within the CIS: the Shanghai Cooperation Organization . 28 3.2 Extradition treaties in Europe and the CIS. 31 3.3 Scope and general principles of extradition . 36 3.3.1 When is extradition allowed?. 36 3.3.2 The rule of specialty. 37 3.3.3 The double criminality principle. 38 3.4 Obstacles to extradition . 38 3.4.1 The political offence exception. 38 3.4.2 Human rights grounds barring extradition. 41 3.4.2.1 Discrimination and persecution. 41 a) International extradition law . 41 b) National laws and practices. 42 3.4.2.2 Death penalty. 42 3.4.2.3 Other human rights obstacles. 43 a) International extradition law . 43 b) National law of CIS States. 44 c) National law of EU States. 44 3.4.3 Conflicting jurisdiction and procedural rules. 45 3.4.3.1 Extradition of nationals . 45 3.4.3.2 Trial in absentia and respect for the right to a fair trial . 45 3.4.3.3 CIS-specific obstacles to extradition. 46 3.4.4 Conclusion. 46 TRANSNATIONAL INJUSTICES: NATIONAL SECURITY TRANSFERS AND INTERNATIONAL LAW 3 3.5 Procedures to request extradition. 48 3.5.1 Domestic procedures to request extradition. 48 3.5.2 The place and role of INTERPOL regarding requests for extraditions 49 3.5.2.1 The organization. 49 3.5.2.2 Restrictions and safeguards . 50 3.5.3 The CIS Information System. 54 3.5.4 Conclusions. 56 3.6 Procedures to execute extradition requests. .58 3.6.1 International human rights law. 58 3.6.2 International law on extradition. 58 3.6.3 National laws and practices. 59 3.6.4 Practice in selected CIS states. 61 3.6.5 Diplomatic assurances . 64 3.6.6 Comparative assessment. 68 3.7 Detention pending extradition . 69 3.7.1 International human rights law. 69 3.7.2 International extradition law . 71 3.7.3 National Laws and practices. 72 3.7.3.1 The Russian Federation . 72 3.7.3.2 Kazakhstan. 74 3.7.3.3 Kyrgyzstan. 75 3.7.3.4 Tajikistan . 76 3.7.3.5 Turkmenistan . 76 3.7.3.6 Uzbekistan. 77 3.7.3.7 National laws and practices of European Countries. 77 3.7.4 Conclusions. 79 3.8 Conclusions. .79 IV. EXPULSIONS ........................................81 4.1 Introduction. .81 4.2 International law . .82 4.2.1 What is an expulsion?. 82 4.2.2 Human rights safeguards . 83 4.2.2.1 Decision in accordance with law . 83 4.2.2.2 Right to submit reasons against expulsion . 84 4.2.2.3 Right to legal representation. 84 4.2.2.4 Right to an appeal. 84 4.2.2.5 Public order and national security limitations . 85 4.3 The use of expulsion in national security cases in the CIS. .87 4.3.1 The Russian Federation. 87 4.3.2 Central Asian States. 88 4.3.3 Conclusion. 89 4 TRANSNATIONAL INJUSTICES: NATIONAL SECURITY TRANSFERS AND INTERNATIONAL LAW 4.4 Grounds for expulsion. 91 4.4.1 National security grounds . 91 4.4.2 Expulsion on other grounds. 92 4.4.2.1 The Russian Federation and Central Asian States. 92 4.4.2.2 Selected EU States . 93 4.5 Obstacles to expulsion in the selected countries . .95 4.5.1 The Russian Federation and Central Asian States. 95 4.5.2 Selected EU States. 96 4.5.3 Conclusions. 98 4.6 Expulsion procedures . 98 4.6.1 The Russian Federation and Central Asian States. 98 4.6.2 Selected EU States. 102 4.7 Remedies against expulsion decisions. 105 4.7.1 The Russian Federation . .106 4.7.2 Central Asian States. .107 4.7.3 Selected EU States. 107 4.8 Detention pending expulsion. 109 4.8.1 The Russian Federation. .109 4.8.2 Central Asian States. .110 4.8.3 Selected EU States. 111 4.9 Conclusions. 112 V. INTERNATIONAL PROTECTION .........................115 5.1 Exclusion. 115 5.2 Non-refoulement . 116 5.3 Procedure. 117 5.4 International protection, exclusion and national security in the EU. 118 5.5 Conclusions. 119 VI. RENDITION OPERATIONS .............................120 6.1 What are renditions?. 120 6.1.1 Defining renditions. 120 6.1.2 What are renditions for? . 121 6.2 International law and renditions. 122 6.2.1 Renditions and international human rights law. .122 6.2.2 Renditions as enforced disappearances. 123 6.2.3 State responsibility, complicity and renditions. .124 6.2.4 Accountability and remedies for renditions . .126 6.2.4.1 The duty to investigate and prosecute. .127 6.2.4.2 The right to the truth and State secrets. 128 6.3 US-led renditions. 129 6.4 Accountability and impunity: comparative experiences. 133 6.4.1 The United States. .133 TRANSNATIONAL INJUSTICES: NATIONAL SECURITY TRANSFERS AND INTERNATIONAL LAW 5 6.4.1.1 Non-repetition. 133 6.4.1.2 The duty to investigate and prosecute. 134 6.4.1.3 The efforts of the victims to seek remedy and reparation. 134 6.4.1.4 The US Senate Report’s Executive Summary. 138 6.4.2 Italy. 139 6.4.3 Poland . 141 6.4.4 The former Yugoslav Republic of Macedonia. .144 6.4.5 United Kingdom. 145 6.4.6 Sweden. 147 6.5 “Rendition” operations in the CIS countries. 148 6.5.1 Direct responsibility: Case Examples. 149 6.5.2 Complicity by facilitation. 152 6.5.3 Kazakhstan. 154 6.5.4 Protection measures. 154 6.5.5 Accountability and remedy . 157 6.6 Conclusions. 160 VII. CONCLUSIONS .....................................162 6 TRANSNATIONAL INJUSTICES: NATIONAL SECURITY TRANSFERS AND INTERNATIONAL LAW I. Introduction Today’s world is characterized by increased global connectivity. People move much more than they did 50 or 100 years ago. Certain competences and legal regulations relating to migration and asylum, formerly exclusively overseen by individual States, have been assumed by international or supranational organiza- tions, while international treaties, including in the area of human rights law and refugee law, have placed constraints on State behaviour.
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