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Extraordinary Rendition in International Law: Criminalising the Indefinable?

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Extraordinary Rendition in International Law: Criminalising the Indefinable? Extraordinary rendition in international law: criminalising the indefinable? by Jeanne-Mari Retief Submitted in fulfilment of the requirements for the degree LLD in the Faculty of Law, University of Pretoria January 2015 Supervisor: Professor CJ Botha Annexure G University of Pretoria Declaration of originality This document must be signed and submitted with every essay, report, project, assignment, mini-dissertation, dissertation and/or thesis . Full names of student: Jeanne-Mari Retief Student number: 04346386 / 24100049 Declaration 1. I understand what plagiarism is and am aware of the University’s policy in this regard. 2. I declare that this thesis (eg essay, report, project, assignment, mini-dissertation, dissertation, thesis, etc.) is my own original work. Where other people’s work has been used (either from a printed source, Internet or any other source), this has been properly acknowledged and referenced in accordance with departmental requirements. 3. I have not used work previously produced by another student or any other person to hand in as my own. 4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work. Signature of student:....……………………………………………………………………………...... Signature of supervisor:………………......………………………………………………………….. ACKNOWLEDGEMENTS I would like to thank my supervisor, Professor Christo Botha, for believing in this topic as much as I did. Thank you for the unwavering support and for sharing the passion toward extraordinary rendition. This thesis is dedicated to you. I would also like to thank my husband for his support, the late night debates, and for encouraging me when I doubted myself and the strength of my arguments. TABLE OF CONTENTS List of abbreviations .......................................................................................................... iii Summary ............................................................................................................................. v Introduction ......................................................................................................................... 1 Chapter 1: Traditional methods of expulsion and rendition under international law ..... 8 1.1 Extradition ................................................................................................................. 11 1.1.1 Factors that obstruct extradition .......................................................................... 15 1.1.2 Human rights considerations in cases of extradition ............................................ 23 1.1.3 Issues related to extradition ................................................................................ 25 1.2 Deportation ................................................................................................................ 26 1.3 Other legal methods of expulsion ............................................................................... 28 1.3.1 Military rendition .................................................................................................. 28 1.3.2 Asylum ................................................................................................................ 32 1.4 Conclusion ................................................................................................................. 34 Chapter 2: Extraordinary rendition as opposed to other illegal expulsion methods ... 35 2.1 Extraordinary rendition ............................................................................................... 38 2.2 History and evolution of extraordinary rendition ......................................................... 41 2.3 Other forms of illegal expulsion and/or rendition ........................................................ 47 2.3.1 Disguised extradition ........................................................................................... 48 2.3.2 Abduction ............................................................................................................ 54 2.3.3 Responsibility of the state in matters of illegal expulsion and/or rendition............ 61 2.4 Conclusion ................................................................................................................. 62 Chapter 3: Issues created by extraordinary rendition .................................................... 66 3.1 Disrespect for the rule of law ..................................................................................... 67 3.2 Secret facilities and arbitrary detention ...................................................................... 75 3.3 Lack of accountability and transparency .................................................................... 80 3.4 Violation of state sovereignty ..................................................................................... 86 3.5 Torture and other forms of cruel, inhuman and degrading treatment or punishment .. 89 3.5.1 Case studies ....................................................................................................... 97 3.6 Conclusion ............................................................................................................... 103 Chapter 4: Legal regimes applicable to extraordinary rendition ................................. 106 4.1 International Humanitarian Law ............................................................................... 107 4.1.1 International armed conflict ............................................................................... 109 4.1.2 Non-international armed conflict ........................................................................ 112 4.1.3 Special consideration of “unlawful combatants” in the Global War on Terror ..... 115 4.1.4 Special debate on detention in IHL and IHRL .................................................... 124 i 4.2 International Human Right Law ................................................................................ 125 4.2.1 Customary International Law ............................................................................. 129 4.2.2 International Human Rights Treaties ................................................................. 134 4.2.3 Convention on Enforced Disappearances ......................................................... 141 4.4 Conclusion ............................................................................................................... 143 Chapter 5: Is the Global War on Terror a new type of war? ......................................... 146 5.1 Introduction .............................................................................................................. 146 5.2 New type of war? ..................................................................................................... 149 5.3 Is there a gap in IHL? .............................................................................................. 150 5.4 Expanding the traditional parameters of warfare ...................................................... 152 5.4.1 Asymmetrical warfare ........................................................................................ 152 5.5 Conclusion ............................................................................................................... 167 Chapter 6: Criminalising extraordinary rendition ......................................................... 169 6.1 Introduction .............................................................................................................. 169 6.2 The International Criminal Court .............................................................................. 171 6.2.1 Jurisdiction of the ICC ....................................................................................... 172 6.2.2 Immunity to criminal liability before the ICC ....................................................... 178 6.3 The right of the victim to redress .............................................................................. 180 6.4 The special issue of criminal responsibility incurred by states .................................. 183 6.5 US concerns regarding the Rome Statute of the International Criminal Court .......... 189 6.6 International crimes in terms of the ICC Stature ....................................................... 192 6.6.1 Jus cogens norms and erga omnes obligations................................................. 192 6.6.2 Categories of international crimes in terms of the ICC Statute .......................... 193 6.7 Alternative international tribunals ............................................................................. 197 6.7.1 Inter-American Court of Human Rights.............................................................. 197 6.7.2 International Court of Justice ............................................................................. 198 6.8 Foreign government responsibility for extraordinary rendition .................................. 199 6.9 Conclusion ............................................................................................................... 208 Conclusion ...................................................................................................................... 211 Bibliography .................................................................................................................... 221 ii LIST OF ABBREVIATIONS AUMF Authorisation to Use Military Force CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 ECE European
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