Arianna Vedaschi and Chiara Graziani
University of Genoa
Before the outbreak of the terrorist threat in 2001, Blackstone’s claim that “every right when withheld must have a remedy, and every injury its proper redress” could be considered as a well-established certainty in democratic countries. Yet the practice of extraordinary renditions (ERs) shows that international terrorism puts even such an apparently self-evident principle under stress.
ERs mean the abduction of a suspect terrorist carried out by US intelligence jointly with the secret services of other democratic countries in which the target is based. The aim of this operation is to bring the suspect terrorist to the territory of countries where torture can be legally used as a technique of interrogation. There, the target is tortured with the purpose of obtaining useful information on terrorist networks and/or on potential attacks. Hence, ERs are a full-fledged “outsourcing” of torture. It is worth noting that ERs are not aimed at prosecuting and trying the suspect terrorist before a court.
A wide range of violations of basic guarantees are intrinsic in ERs, spanning from the prohibition of torture to fair trial principles. This is even more worrying if one considers that quite a few of these operations were admittedly the results of mistaken identities – as the names of victims are very similar to those of people actually linked to terrorism (e.g. el-Masri confused with al-Masri).
Given this scenario, what remedies are available to victims of ERs? Accountability of perpetrators – in this case, government agents – before courts would be the most obvious answer, according to a Western legal tradition-influenced approach. However, facts have demonstrated that, even in “mature” democracies, this outcome is not so straightforward.
As a matter of fact, a couple of arguments often prevented judges (including high court judges) from adjudicating cases of ERs and holding culprits accountable. On the one side, secrecy surrounding these operations entailed state secret claims, which acted as a procedural shield to the scrutiny of these cases’ merits. On the other side, state immunity was frequently invoked by governments.
Two landmark examples of the use of secrecy as a barrier to accountability are the El-Masri and the Abu Omar cases, at least if one looks at their judiciary paths before domestic courts – US and Italian ones, respectively.
In El-Masri, US judges refused to rule over the case of a Lebanese-born German citizen who was mistakenly abducted in Skopje (Macedonia), due to the similarity of his name to that of a member of the Hamburg cell, and subsequently flown to Kabul (Afghanistan), where he was tortured in local prisons. Both the District Court for the Eastern District of Virginia and the Court of Appeals for the Fourth Circuit, misinterpreting the doctrine of state secrets privilege by conflating the Reynolds and Totten precedents, dismissed the case, in a blatant denial of justice that was confirmed by the US Supreme Court, when it denied certiorari.
In Abu Omar, an Egyptian-born imam, kidnapped in Milan and transferred to Egypt to be tortured, eventually saw its claim for justice rejected after a long and complex judiciary path. Although the Tribunal of Milan, the Milan Court of Appeal and the Supreme Court of Cassation convicted US agents involved in the matter, two deferential judgments of the Italian Constitutional Court, by asserting the legitimacy of the invocation of secrecy by the President of the Council of Ministers, forced the Court of Cassation to acquit previously condemned state agents and dismiss the case.
In relation to both El-Masri and Abu Omar, the only glimpse of hope as to judicial remedies came from the European Court of Human Rights (ECtHR), with two judgments rendered in 2012 and 2016. The ECtHR firmly condemned Macedonia and Italy for complicity with the US in El-Masri’s and Abu Omar’s renditions, respectively, and for the abuse of state secrecy. In both decisions, a firm stance against the use of torture, even in national security-related cases, was embraced by condemning the ERs practice. This approach was then reiterated in Al Nashiri v. Poland and Abu Zubaydah v. Poland in 2014 as well as in Al Nashiri v. Romania and Abu Zubaydah v. Lithuania in 2018.
Canada collaborated with the US in ERs programs, too. The Arar affair involved a Canadian citizen deported to Syria by US and Canadian agents during a flight from Tunisia to Canada. As a consequence, the target was interrogated and tortured in Syria for over one year. Even in this case, there had been a mistake. When Arar sought justice before US courts, his case was dismissed due to the US government’s claim of state secrets privilege and to the courts’ argument that a Bivens claim could not be filed when national security was at stake. Arar had no better luck before Canadian courts, either, the only difference being that Canadian judges relied on foreign officials’ immunity – Arar had previously sued the Syrian government – in order to reject his claim.
However, if the judicial path seems uncertain and often ineffective, it appears that “alternative” means of redress are emerging. In many cases of ERs, after unsuccessful judiciary proceedings, governments admit to their responsibility and pay monetary compensations to the victims and to their families, frequently along with public apologies for the wrongs suffered. For instance, in the Arar affair, the Canadian government publicly apologized and paid $ 10.5 million as pecuniary compensation. In 2010, the UK government paid compensation to Binyam Mohamed. In May 2018, the UK government also apologized to Abdelhakim Belhaj and his wife for the UK intelligence service’s role in their abduction to Libya, where they were held in prison for six years and tortured by al-Qaddafi’s troops.
Interestingly, a few weeks after the UK government’s apologies to Belhaj, the UK Parliamentary Intelligence and Security Committee issued two reports on the UK’s involvement in ERs which, if, on the one hand, shocked the public opinion, on the other hand, came as no surprise to those who had followed the developments of Binyam Mohamed, Belhaj and many other cases. The “apology path” was chosen again in 2017 by the Canadian government for the rendition of Khadr and, in 2018, by the Macedonian government for the kidnapping of El-Masri.
Therefore, ERs are undoubtedly among the most used – and disputed – post 9/11 counter-terrorism measures. Probably, due to their intrinsic secrecy, they are applied even more than we are aware of. After a series of cases in which national courts – with few exceptions – proved deferential to the executive power, and supranational courts’ “lessons” that went mostly unheeded, the “alternative justice” solution seems the preferred one.
However, can we be sure that admission of culpability, apologies and pecuniary compensation, which marginalizes judiciary scrutiny, are the best way to deal with such serious violations? Does this solution meet the Blackstone’s standard mentioned at the beginning? We are not convinced. From our perspective, the most “natural” forum would be the domestic judiciary one, ensuring enforceability of measures and expressing state sovereignty. Even the ECtHR may not have the necessary “authority” to ensure concrete punishment, since its judgments can condemn states to the payment of monetary redress, but they cannot convict individuals for their criminal conducts. In addition, the US, which has led ER programs, is outside the jurisdictional reach of the Strasburg Court.
This background has therefore paved the way for “alternative justice” (as recent trends demonstrate). Yet this approach presents some major and worrying drawbacks: first, the case is “silenced” and the lack of accountability persists; second, ERs, i.e. serious violations of human rights, become highly politicized issues.
Hence, along with government apologies, what would be desirable in the first place is a reversal of domestic courts’ trend, which should give up their deferential approach.
Arianna Vedaschi is Full Professor of Comparative Public Law at Bocconi University, Milan (Italy), http://faculty.unibocconi.eu/ariannavedaschi/
Chiara Graziani is a Ph.D. Candidate in Comparative Constitutional Law at the University of Genoa (Italy), https://lingue.academia.edu/ChiaraGraziani
Suggested citation: Arianna Vedaschi and Chiara Graziani, ‘Extraordinary Renditions: Old Story, New Trend’ IACL-AIDC Blog (2 November 2018) https://blog-iacl-aidc.org/blog/2018/11/2/extraordinary-renditions-old-story-new-trend