Illegal renditions and improper treatment: an obligation to provide refugee remedies pursuant to the Convention Against Torture.

• Author: Parsad, Krishma C.

1. INTRODUCTION

   The state of International Law has been significantly influenced in recent years by the terrorist attacks which took place on United States soil on September 11, 2001. Since that time, in an effort to combat terrorism, the United States has engaged in a number of questionable practices in relation to the treatment of suspected terrorists. Specifically, suspected terrorists are rendered to third countries where they are subject to torture and cruel, inhuman and degrading treatment (CIDT).

   Not only are these acts prima facie violations of international law to which the United States has obligated itself, but they disrupt the lives of innocent civilians who are unlawfully detained and improperly interrogated. Often times those accused of acts of terrorism are denied re-entry into their home countries because they are stigmatized as terrorists or are denied refugee status in the United States due to stringent application of these international conventions which seek to protect individuals from torture and CIDT. The conventions to which the United States has bound itself which are applicable in this context include the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (CAT) (1), the International Covenant on Civil and Political Rights (ICCPR) (2), and the 1951 Geneva Convention Relating to the Status of Refugees (Refugee Convention) (3). Instead of adhering to its obligations pursuant to these conventions, the United States application of these obligations has the effect of subjecting individuals to indefinite and improper detention within the United States or leading to the removal of individuals to countries where they are subject to torture and CIDT.

   Thus, this paper seeks to explore the manner in which the United States has interpreted and applied international law when it renders persons to countries where they will be tortured and subject to CIDT and evaluates the legal obligations that the United States has under international law--whether or not those persons are considered terrorists. As all other countries which are signatories to international human rights conventions and which are bound to comply with customary international law, the United States must too adhere to extraterritorial application of international obligations and provide proper remedy to those likely to be subject to improper treatment under all circumstances.

2. "EXTRAORDINARY" RENDITION, NON-REFOULEMENT, TORTURE, AND TERRORISM DEFINED

   1. Rendition, Extradition, and "'Extraordinary" Rendition

      Notions of rendition and extradition are not new to international discourse and international law jurisprudence. Renditions occur when persons are abducted from their home countries without administrative process. (4) Such renditions may be found to be in and of themselves violations of international law norms because they constitute violations of state sovereignty. (5) Extraditions generally take place between two countries that have an extradition treaty and occur when one country requests that its citizen who is residing in another country be returned for criminal prosecution. (6)

      In recent years, international law scholars have also been confronted with the notion of "extraordinary rendition" which does not have a definition under international law. (7) The term extraordinary rendition is generally used to refer to the situation where a person is taken to a third country in a manner such that he or she does not know where he or she is and is subject to torture or CIDT. (8) These individuals are transferred before they enter United States borders to negate any constitutional protections they might have received had they been transferred directly from U.S. soil. (9) These acts have caused controversy over whether or not the United States, as a party to the CAT, violates principles of non-refoulement, or improper return, by engaging in these practices. (10)

   2. The Customary International Law Principle of Non-Refoulement

      Non-refoulement is a principle of customary international law by which a person may not be returned to a country where he or she may face persecution or be subject to torture or CIDT. (11) The concept of non-refoulement has taken many forms in treaties of international human rights law. Those which are pertinent here include the non-refoulement provision within the Refugee Convention and the non-refoulement provision embodied in both the CAT and the ICCPR.

      The Refugee Convention provides that a person who will likely be subject to persecution on the basis of race, nationality, political opinion, religion or membership in a particular social group may not be returned, or refouled, to the country where he or she faces such persecution. (12) The standard under the CAT and the ICCPR has a broader range of applicability. The provision for non-refoulement in the CAT is distinguished from the non-refoulement provision of the 1951 Convention relating to the Status of Refugees on the basis that there are no exceptions to the provision under the CAT as there are under the Convention. (13) In this regard, the non-refoulement provision is non-derogable and "[t]he nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention." (14)

      The principle of non-refoulement has been widely held a norm of customary international law such that all states are bound by this principle whether or not they are parties to any of the aforementioned conventions. (15) Thus, there are two bases of international law by which a state may be bound by the obligation of non-refoulement: 1) by treaty, or 2) by customary international law. Each form constitutes a separate binding obligation for states, such as the United States, which are parties to these conventions. (16)

   3. Torture as a Jus Cogens Norm of International Law

      Torture is defined at Article 1 of the CAT which provides that:

      [T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (17) The prohibition of torture has been widely held as a jus cogens norm (18), or a preemptory norm of international law from which no derogation is permitted. (19) Thus, no state is permitted to engage in acts of torture at any time. Likewise, no state is permitted to subject persons to torture via refoulement. (20)

      The scope of acts which constitute torture is not limited. (21) To establish torture, there must be intent to carry out a "prohibited" purpose. (22) Such prohibited purposes include inhuman treatment for obtaining information, imposing punishment or discrimination for any reason. (23) Regardless of who imposes the torture, states have the obligation to impose legislation that prohibits torture by either public officials or private individuals. (24) A state may be responsible for acts of torture where it engages in torture or does not prevent torture from occurring. (25)

      Torture is distinguished from CIDT on the basis of the severity of the treatment. (26) A number of factors such as "physical or mental condition of the victim, the effect of the treatment and, ... age, sex, state of health and position of inferiority" may be considered in determining whether the conduct arises to the required level of severity. (27) Examples of conduct which have been found to constitute torture include: beating, falanga, extraction of nails, burns, electric shock, sexual violence, deprivation of senses, and threats. (28)

   4. The Definition of Terrorism under International Law

      The international community has not adopted a uniform definition of terrorism. Instead, a number of treaties concerning terrorism have been adopted over the years which embody several varying definitions of terrorism. (29) While the Security Council of the United Nations has recognized terrorism as an important issue in international law, it too declined to affirmatively define terrorism in its most prominent resolution concerning the issue. (30) In addition to condemning acts of terrorism, the Security Council used its United Nations Charter Chapter VII powers to prohibit Member States from providing "safe haven" to those who commit or who aid in the commission of terrorist acts. (31)

      Even so, the Security Council has passed resolutions to remind the international community of its obligations pursuant to non-refoulement in assessing treatment of alleged terrorists. For example, Security Council Resolution 1624 calls upon states to comply with non-refoulement as articulated in the Refugee Convention and comply with international standards of human rights and refugee law. (32) The United Nations Human Rights Committee which evaluates Member State implementation of the ICCPR has also emphasized the need to comply with treaty provisions in implementing Security Council Resolution 1373 by stressing, in particular, the prohibition on torture and CIDT. (33)

3. TORTURE AND ITS RELATIONSHIP TO EXTRAORDINARY RENDITION

   The primary legal reasons for condemning renditions which result in improper treatment include 1) the manner in which persons are abducted from their home countries without administrative process; 2) the treatment that these persons are subject to once they are detained in third countries; and 3) the validity of the jurisdiction a court has in trying these...