Academic

Satterthwaite on Rendition

By Lawrence Solum

Margaret L. Satterthwaite (New York University - School of Law) has posted From Rendition to Justice to Rendition to Torture: Informal Transfer under International Law and the Prospects of Enforcement in U.S. Courts on SSRN.  Here is the abstract:

The practice of international rendition--the transfer of an individual across borders without recourse to extradition or deportation proceedings - is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos "the Jackal" (Ilich Ramirez Sanchez) from Sudan to France. Such renditions have been celebrated as crucial in the fight against impunity for grave crimes.

In the United States, "rendition to justice," in which a suspect is apprehended and transferred to the United States for criminal prosecution, was approved and formalized by President Reagan and expanded by President George H.W. Bush. U.S. courts approved of the practice in a series of cases that culminated in the 1992 Supreme Court case U.S. v. Alvarez-Machain. President Clinton altered the practice by initiating the transfer of suspects from one country to another, placing them into foreign legal processes rather than bringing them into the U.S. legal system. Since 9/11, the administration of President George W. Bush has been citicized for the new practice of "extraordinary rendition" - the transfer of suspects to countries known for the systematic use of torture. Secretary of State Condoleezza Rice and CIA Director Michael Hayden have defended the practice, relying on justifications developed to support "rendition to justice" and arguing that the practice is legal. Despite these justifications, international human rights bodies and intergovernmental bodies including the European Union and the United Nations have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the U.S. legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited.

Despite this clear consensus, there is no similar agreement concerning the practice of informal transfers - renditions of the non-"extraordinary" kind - more generally. In part this lack of consensus comes from the varied contexts in which informal transfers occur: one state may seek custody of a suspect for a regular criminal trial, while another seeks an individual solely for intelligence-gathering purposes, and yet another seeks to transfer an individual to an international tribunal despite its failure to enact domestic legislation regulating the hand-over. To provide a firm grounding for legal analysis, the first section of this article develops a taxonomy of rendition and examines the range of justifications for informal transfers. Examining the authority of states and international tribunals to prescribe and enforce criminal law across borders, the article identifies instances in which informal transfers may be the only acceptable policy option. The article concedes that such renditions may, in a limited set of circumstances where states harbor suspects or refuse to engage in international cooperation, be necessary to ensure that fugitives do not enjoy impunity. This is especially the case in the age of terrorism and grave international crimes such as genocide.

The second section of the article examines the handful of rendition cases decided by international criminal tribunals and regional human rights courts, as well as comparative jurisprudence from Canada, Israel, South Africa, and the United Kingdom, as well as the international legal literature on the topic. The article uncovers a gap in the legal reasoning behind rendition: the human rights of the individual transferred are rarely analyzed; instead, questions of sovereignty and jurisdiction dominate.

The third section of the article seeks to fill the gap in the literature by identifying the basic protections that must be extended to all individuals facing informal transfer - no matter their destination - and providing the basis of those protections in international law. Drawing on emerging norms as well as existing rules governing formal transfers accomplished through extradition and deportation, the article sets out basic substantive and procedural rights that should be afforded to all individuals facing transfer.

The final section of the paper considers practical solutions to the argument that affording transferees procedural rights is impossible in the context of the "War on Terror." Examinnig the U.S. context, this section presents an analysis of the recent Supreme Court decisions in Boumediene v. Bush and Munaf v. Geren/Geren v. Omar to determine what procedural vehicles may exist under U.S. law for individuals facing transfer who seek to enforce the rights guaranteed to them by international law.

Full post as published by Legal Theory Blog on July 11, 2008 (boomark / email).