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Über dieses Buch

This book explores the potential of international human rights law to resolve one of the gravest human rights violations to have surfaced post 9/11: extraordinary rendition. Although infamously deployed as a counter-terrorism technique, substantial evidence confirms that European states colluded in the practice by facilitating the transportation of suspects through their airspace or airports and in some cases, secret detention on their territories. Despite recent findings of the European Court of Human Rights, difficulties persist in holding many European States accountable for the role they played both at the domestic and international level. Distinguishing between various forms of accountability and interrogating the evolving parameters of international human rights law, this volume will fill gaps in extraordinary rendition literature and influence the policies of European States.



Chapter 1. The Concepts

Extraordinary rendition involves the extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment. It is a practice that is primarily identified with the CIA’s Detention and Interrogation Programme which was implemented in the aftermath of 9/11 with the active and passive cooperation of many States in Europe. In recent years, there have been widespread demands for “accountability” on the part of European States for their “complicity” in extraordinary rendition. This chapter highlights how accountability can take different forms and how the concept of “complicity” itself is also a complex concept requiring consideration of multiple factors. It points to the focus of the book as an effort to determine when States can be held legally accountable for complicity in extraordinary rendition. “Legal accountability” is understood as a concept that demands an assessment of whether a State is responsible for a breach of the law and crucially the provision of redress or acknowledgement of state responsibility. The focus on legal accountability is justifiable on the basis that a finding of legal responsibility in the context of a legal accountability process inevitably increases the odds of political accountability for complicit States.
Suzanne Egan

Chapter 2. The Dynamics of Extraordinary Rendition: Past, Present and Future

This chapter provides a comprehensive account of the evidence gathered to date regarding the direct and indirect participation of European States in the CIA’s Detention and Interrogation Programme. It focuses in particular, on the numerous high-level investigations and reports of international organisations as well as non-governmental organisations, documenting a “spider’s web” 1 of illegal transfers and secret detention during the Bush era. The chapter also draws the reader’s attention to the litany of efforts made by victims and civil society groups to hold the USA and European States accountable in domestic settings for breaches of rights’ protections; and how the spectre of extraordinary rendition and similar practices have not necessarily been ruled out as available policy options by the USA in its continued efforts to curtail international terrorism.
Suzanne Egan

Chapter 3. Investigative Obligations: Is There a Right to the Truth?

One specific challenge that has dogged efforts to establish State accountability for participation in the CIA’s Detention and Interrogation Programme has been that of procuring definitive proof that particular States facilitated the USA, either directly or indirectly, in extraordinary rendition under that programme. Following initial revelations regarding complicity in the rendition operations carried out under the programme, European States came under increasing pressure to establish investigations or public inquiries into their involvement and to provide adequate redress and compensation to victims wherever complicity was ascertained. Not surprisingly, progress in instigating and following through on inquiries, however, has been slow, mostly on account of the persistent invocation by States of national security concerns as an impediment to establishing full inquiries. This chapter analyses, therefore, the extent to which international human rights law mandates a duty of investigation on States to conduct an official investigation into allegations of involvement in extraordinary rendition and reveals how a limited “right to the truth” as regards serious violations of human rights is emerging in the jurisprudence.
Suzanne Egan

Chapter 4. Mapping State Responsibility for Complicity in Extraordinary Rendition

In addition to the difficulties involved in establishing the facts of complicity in extraordinary rendition, a further challenge encountered by victims and human rights groups has been that of establishing legal responsibility on the part of European States for facilitating implementation of the CIA’s Detention and Interrogation Programme. In seeking to understand the applicable legal principles, the chapter first explores the rules of State responsibility for complicity in wrongful acts as they have been framed within the overarching context of international law (ARSIWA) and in international human rights law. It concludes that human rights bodies, in particular the ECtHRts, have begun to apply an imputational, risk-based rule of State responsibility for complicity that is clearly wider than the traditional approach expressed in ARSIWA.
Suzanne Egan

Chapter 5. The Shelter of Diplomatic Assurances

The widespread practice of European States in relying on diplomatic assurances from the US government to the effect that prisoners were not being transported through their territories has exerted a challenge in establishing accountability for complicity in extraordinary rendition on the part of those States. In contrast to the overwhelming body of opposition to the usage of diplomatic assurances in removal cases expressed by human rights monitors and experts, the UN treaty bodies and the ECtHRts have refused to rule out a priori the usage of diplomatic assurances in such cases. Accordingly, the possibility of reliance on such assurances constitutes a regrettable loophole in the efforts to deter extraordinary rendition and complicity in such practices in the future.
Suzanne Egan

Chapter 6. Conclusion

This chapter summarises the main conclusions of the book regarding the extent to which international human rights bodies, and in particular, the ECtHRts in interpreting the ECHR, have helped to address outstanding challenges in holding European States accountable for complicity in the CIA’s Detention and Interrogation Programme. Positive developments highlighted include the evolution of a right to the truth on the part of victims of extraordinary rendition; and the development of an imputational, risk-based principle of State responsibility, applicable not only to direct forms of complicity but potentially also to more indirect forms. These positive trends are unfortunately undermined by the tendency of human rights bodies to admit the relevance of diplomatic assurances in evaluating the existence of a substantial risk of torture or ill-treatment. Overall, however, the quest for legal accountability in cases concerning complicity in extraordinary rendition has been successful not only in securing concrete outcomes for victims, but in increasing our understanding of complicity as a matter of international human rights law and in securing political accountability for complicit States more broadly.
Suzanne Egan
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