Problem II.D.4.:

     Habré’s legal saga continues. In 2006, the Committee of Eminent African Jurists reported that “[s]ince Habré is within its territory Senegal should exercise jurisdiction over him. As a State party to the Convention Against Torture, Senegal is under an obligation to comply with all its provisions." On July 2, 2006 the African Union heads of state called on Senegal to prosecute Hissène Habré "on behalf of Africa," and Senegal’s President declared that Senegal would do so.   

     During 2007 and 2008, Senegal passed legislation and amended its constitution to provide that its courts could prosecute genocide, crimes against humanity and war crimes committed in the past. Thereafter, Senegal indicated that a trial would require significant financial resources which it “would be unable to raise without assistance from the international community.” Although Belgium, France, the Netherlands, Switzerland and the European Union all stated that they would provide financial assistance to Senegal for the trial, no prosecution has commenced.

     In 2000 and 2001, several victims filed proceedings against Habré in Belgian courts. Thereafter, Belgium addressed numerous writs for judicial investigations to Senegal and an international arrest warrant. However, Senegal did not cooperate with the Belgian requests and, in February 2009, Belgium instituted proceedings against Senegal before the ICJ. Belgium alleges that Senegal has violated its obligation, under the Torture Convention, to prosecute or extradite Habré. More information on the ICJ proceeding can be found here.

Problem III:

     Courts continue to confront cases involving irregular renditions with some regularity. Ocalan v Turkey involved the arrest of the leader of the Workers’ Party of Kurdistan. In 1998, Ocalan was expelled from Syria, where he had lived for many years. He flew to Greece, but his request for political asylum was denied and he was asked to leave the country. After short stops in Russia and Italy, Ocalan was taken to Kenya. He was met by officials from the Greek Embassy and stayed at the ambassador’s residence. Kenya alleged that he entered the country improperly, and that his presence in the country constituted a major security risk. As Kenyan officials were driving Ocalan to the airport, his car left the convoy and he was taken to an aircraft where Turkish officials were waiting for him. He was then arrested and flown to Turkey, where he was convicted of terrorist acts by a national security court. The Court determined that

The Kenyan authorities did not perceive the applicant's arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty. In sum, neither aspect of the applicant's detention – whether his interception by the Kenyan authorities before his transfer to the airport, or his arrest by the Turkish officials in the aircraft – led to an international dispute between Kenya and Turkey or to any deterioration in their diplomatic relations. The Kenyan authorities did not lodge any protest with the Turkish government on these points or claim any redress from Turkey, such as the applicant's return or compensation.

As a result, the arrest and transfer to Turkish agents did not violate the European Convention on Human Rights. The Court’s opinion can be found here.

     The international criminal tribunals have been reluctant to dismiss indictments due to allegedly unlawful arrests. For example, in Prosecutor v. Tolimir, IT-05-88/2-PT, the defendant alleged that he was abducted from his apartment in Serbia, transported into Republicka Srpska and then surrendered to an official from the ICTY’s Office of the Prosecutor and flown to The Hague. The Trial Chamber noted that the only “irregular aspect of the arrest” was the removal from his apartment and no evidence suggested the involvement of either NATO or the Prosecution in that phase of the arrest. The court concluded that the facts alleged “[did] not amount to a human rights violation of such a serious nature so as to require that the exercise of jurisdiction be declined.”

     In Kajelijeli v. Prosecutor, ICTR-98-44A-A (23 May 2005), the International Tribunal for Rwanda adopted the Nikolic standard. In that case, defendant was arrested in Benin even though no arrest warrant has been issued. Moreover, he was held for 85 days before being advised of the charges against him and brought before a judge, in violation of rights under the ICTR statute and international human rights law. However, the Appeals Chamber found that dismissing the case for lack of jurisdiction “would be disproportionate.” Instead, the Appeals Chamber found that a reduction in the accused’s sentence would be “an appropriate remedy.”

     Extraordinary renditions give rise to legal issues other than the appropriateness of exercising jurisdiction over an accused. For example, during the Bush Administration, controversy arose over U.S. renditions of suspected terrorists to states widely believed to employ harsh interrogation techniques, including torture. Article 3 of the Convention Against Torture provides that parties shall not render an individual to another state “where there are substantial grounds for believing that he would be in danger of torture,” although the U.S. State Department has taken the position that this provision does not apply extraterritorially. Section 2242 of the the Foreign Affairs Reform and Restructuring Act of 1998, provides that, subject to certain exceptions, U.S. policy is “not to expel . . . or otherwise effect the involuntary return of any person to a county in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” P.L. 105-277 at sec. 2242(a). Under applicable regulations, a person can be transferred to a state that provides diplomatic assurances that the person will not be tortured if removed there. 8 C.F.R. Sec.208.16-18. In December 2005, Secretary of State Condoleezza Rice stated that “the United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.”

     The practice of relying upon diplomatic assurances has proven controversial. A U.N. Special Rapporteur stated that while diplomatic assurances “should not be ruled out a priori,” they should be coupled with a system to monitor the treatment of transferred individuals to ensure that they are not treated inhumanely. In 2006, the Committee against Torture made a non-binding recommendation that the United States should only rely on “diplomatic assurances in regard to States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case. The State party should establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangments.” In a series of reports, available here, the Council of Europe also criticized U.S. rendition policy.

     Individuals who were transferred to third states have had limited success pursuing claims in U.S. courts. For example, in El-Masri v. United States, 479 F.3d. 296 (4 thCir.), cert. denied, 128 S.Ct. 373 (2007), a German citizen of Lebanese descent brought claims stemming from injuries allegedly received during his detention under the Central Intelligence Agency's “extraordinary rendition” program. The government defended the suit on the basis of the state secrets privilege. El-Masri countered that the state secrets privilege did not require dismissal because the CIA's program had been widely discussed in the press and in public fora, and acknowledged by administration officials. The Fourth Circuit upheld the government's assertion of the state secrets privilege and dismissed the action, reasoning that, to prevail, El-Masri would be required to produce “evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations.” The full opinion can be found here.

     Another high profile case involved Maher Arar, who was apprehended in September 2002 by U.S. official while in transit from Tunisia through New York to Canada. After holding Arar for nearly two weeks, U.S. authorities flew him to Jordan, where he was driven across the border and transferred to Syrian officials. Arar was held in Syrian custody for 10 months, and alleges that he was repeatedly beaten and tortured during this time. The U.S. government claimed that it received diplomatic assurances from Syria that Arar would not be subject to torture. After his release, Arar filed suit in U.S. courts. The government argued that the suit should dismissed because litigation would “necessitate disclosure of classified information.” In a lengthy opinion, the Second Circuit concluded that Arar has not adequately established federal subject matter jurisdiction over his claim that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture. Arar v. Ashcroft, 532 F.3d. 157 (2d Cir. 2008), cert denied, The full opinion can be accessed here.

     On January 22, 2009, President Obama issued a series of Executive Orders concerning the treatment of individuals apprehended by the United States in connection with armed conflicts or counterterrorism operations. One of the orders creates a special interagency task force charged with reviewing

the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, of with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

The executive order can be accessed here.