International law - prohibition on refoulement - remedies - Maher Arar v. John Ashcroft.

• Author: Ryan, Daniel

The prohibition on refoulement is a fundamental human right enshrined in both customary international law and treaty law. (1) In Arar v. Ashcroft, (2) the Court of Appeals for the Second Circuit considered plaintiff Maher Arar's claim for, inter alia, damages under the Torture Victims Prevention Act (T.V.P.A.) arising from his extraordinary rendition to Syria. (3) Arar alleged that the defendants, all U.S. government officials, rendered him to Syria with the knowledge or intention that he would be tortured and interrogated by Syrian authorities. (4) The Second Circuit held that Arar failed to state a claim under the T.V.P.A. and dismissed the case. (5)

On September 26, 2002, authorities at John F. Kennedy airport in New York detained Arar, a dual citizen of Syria and Canada, while he was in transit from Tunisia to Canada. (6) Arar was told that he was inadmissible to the United States because the U.S. government had determined he was a member of al Qaeda. (7) Pursuant to this determination, Director of the Regional Office of the I.N.S.J. Scott Blackman, authorized Arar's removal from the United States without further process. (8) Although Arar designated Canada as the country to which he wished to be sent, U.S. officials instead allegedly flew him to Jordan where he was handed over to Syrian officials, driven to Syria and placed in detention. (9)

In Syria, Arar was allegedly held in an underground cell six feet long and three feet wide for approximately twelve months. (10) During his detention, Arar claimed that he was subjected to "physical and psychological torture," including regular beatings and threats of severe physical harm. (11) Arar further alleged that the defendants provided Syrian authorities with information about him, suggested subjects for interrogation, and received "all information coerced from [Arar] during interrogations." (12)

Following his release from Syrian detention, Arar filed a civil action in 2004 against numerous individuals, including: former U.S. Attorney General John Ashcroft; Federal Bureau of Investigations (F.B.I.) Director Robert Mueller; Secretary of Homeland Security Tom Ridge; former Immigration and Naturalization Service (I.N.S.) Commissioner James W. Ziglar; Regional Director of the Regional Office of the I.N.S. J. Scott Blackman; and several other named and unnamed employees of the F.B.I. and I.N.S. (13) Arar alleged, inter alia, that the defendants "acted in concert with Jordanian and Syrian officials, and under color of Syrian law, to conspire and/or aid and abet in violating his right to be free from torture" in violation of the T.V.P.A. (14) Arar requested compensatory and punitive damages under the T.V.P.A. for violations of his international human rights. (15) The District Court dismissed Arar's complaint in August 2006. (16) On appeal, the Second Circuit Court of Appeals upheld the District Court dismissal of Arar's claims. (17)

The Alien Tort Statute (A.T.S.) grants the federal district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the "law of nations" or a treaty of the United States. (18) Torts in violation of the law of nations include, inter alia, torture, extrajudicial killing, war crimes, disappearance, and arbitrary detention. (19) To gain jurisdiction under the A.T.S., the plaintiff must show that the treaty is either self-executing and provides for a private right of action or, if the treaty is non-selfexecuting, that it has been implemented through domestic legislation. (20) Where a tort violates both "the law of nations" prong of the A.T.S. and the "treaty of the United States" prong of the statute, plaintiffs are not barred from raising claims under either prong of the A.T.S. (21)

Under customary law, the principle of non-refoulement prohibits States from rejecting, returning, removing, or expelling an individual to a country where there is a substantial risk of facing torture, cruel, inhuman or degrading treatment, or persecution. (22) The principle of non-refoulement is absolute, meaning a state may not derogate from the law under any circumstance. (23) The absolute prohibition on refoulement is a corollary to the jus cogens prohibition on torture. (24) Accordingly, some scholars assert that the customary prohibition on refoulement, like torture, is a jus cogens norm of international law. (25)

Under treaty law, the prohibition on refoulement is codified in Article 3 of the Convention Against Torture (C.A.T.), which provides "no State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." (26) As with the absolute prohibition on refoulement under customary law, derogation from article 3 of the C.A.T. is not permitted. (27)

The United States signed the C.A.T. on April 18, 1988 with the declaration that articles one through sixteen are not self-executing. (28) The United States has since implemented article three of the C.A.T. through section 2242(a) of the Foreign Affairs Reform and Restructuring Act (F.A.R.R.A.) of 1988, which states "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture...." (29)

F.A.R.R.A. does not provide an express statutory civil remedy for violations of the prohibition on refoulement. (30) Nonetheless, a plaintiff may bring suit under the A.T.S. for a violation of the prohibition on refoulement under the "violation of the law of nations" prong of the A.T.S., rather than as a violation of the C.A.T., as implemented by F.A.R.R.A., under the "treaty of the United States" prong. (31) Notwithstanding this apparent cause of action for victims of refoulement, the Government may still assert the state secrets privilege in cases involving extraordinary rendition to protect national security and strip the court of subject matter jurisdiction. (32)

Although Arar did not plead a theory of liability for refoulement under the A.T.S., the Second Circuit should have held, sua sponte, that defendants' alleged rendition of Arar to Syria with the knowledge or intent that Syrian officials interrogate him under torture states a prima facie claim of refoulement. (33) The court should have conducted an inquiry into the status of refoulement under international law and found that the C.A.T., state practice, opinio juris, domestic and international judicial decisions, and the writings of jurists establish the prohibition on refoulement as a rule of customary international law, if not a jus cogens norm. (34) Accordingly, the court should have held that a claim of refoulement is a tort in violation of the law of nations cognizable under the Alien Tort Statute. (35) The court should have noted that neither the absence of an express civil remedy under F.A.R.R.A., nor the non-self-executing nature of the C.A.T., bar a claim of refoulement provided the claim is based on a theory of liability under the "violation of the law of nations" prong of the A.T.S. rather than under the "violation of a ... treaty of the United States" prong. (36) Following this discussion of law, the Second Circuit should have remanded the case to the District Court to establish the facts and determine whether Arar is entitled to damages under the A.T.S. (37) On remand, however, it is foreseeable that the U.S. government would intervene in the case and assert the state secrets privilege to deprive the court of jurisdiction and bar Arar from proceeding with the case. (38)

In conclusion, the case of Arar v. Ashcroft (39) provided the Second Circuit an opportunity to check the executive branch's wartime powers by holding that extraordinary rendition amounts to refoulement in violation of the law of nations and therefore a remedy for victims of refoulement is available under the Alien Tort Statute. (40) Such a precedent might persuade the executive branch to end the practice of extraordinary rendition and begin to prosecute the war on terror according to the law of armed conflict and with respect for human rights. (41) Instead, the court dismissed Arar's claim and gave the executive branch free reign to continue the practice of refoulement through extraordinary rendition in violation of the law of nations. (42)

(1) SIR ELIHU LAUTERPACHT & DANIEL BETHLEHEM, THE SCOPE AND CONTENT OF THE PRINCIPLE OF NON-REFOULEMENT IN REFUGEE PROTECTION IN INTERNATIONAL LAW--UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION, 87-177, 163 (Erika Feller, Volker Turk and Frances Nicholson eds., Cambridge University Press 2003) [hereinafter LAUTERPACHT & BETHLEHEM] (defining customary prohibition refoulement). Lauterpacht and Bethlehem define the customary norm of refoulement as:

No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he...