LEGAL OPINION:How and why did European states willingly engage in processes that involved torture and breached the most clear and absolute of international laws?
THE MORE WE learn about the past decade of extraordinary rendition, the clearer it becomes that it would not have been possible without active engagement by European states.
Adopted in earnest by the Bush administration in the wake of the September 11th attacks, “extraordinary rendition” was a programme of irregularly transferring individuals across borders for the purposes of interrogating them while they were being held incommunicado without access to legal counsel or any means of challenging the detention.
Reports suggest that people were “snatched” from locations as diverse as their bedrooms in Bosnia Herzegovina, market squares in Pakistan, and city streets in Milan. They were bundled into cars, blindfolded, transferred on airplanes (often chartered civilian aircraft), and subjected to prolonged periods of interrogation and abuse, including torture, in their destinations. Extraordinary rendition was and is clearly and unquestionably illegal under international law as a breach, among other things, of the absolute prohibition of torture.
Initial reports of extraordinary rendition suggested that the participating states were mostly those where torture was known to have been a widespread tactic of state forces. Thus, we heard of transfers to Egypt, Syria and Uzbekistan among others. However, we now know that European states – members of the European Union and signatories to the 60-year-old European Convention on Human Rights – were also intimately involved in extraordinary rendition.
This included blanket over-flight approval by NATO member states for all US military flights said to be involved in counter-terrorism, as well as bilateral over-flight agreements with non-NATO states. Furthermore stopover and refuelling agreements in European states – including Ireland – almost certainly facilitated extraordinary rendition, even if at the time they were within the airspace and territory of the state in question there was no prisoner on board the aircraft.
Even more directly, some European states allowed for the establishment of what are known as CIA “black sites” in their territories where so-called “High Value Detainees” were held, interrogated and almost certainly tortured. In recent weeks it has been revealed that the UK identified people for rendition and provided details of their locations to the CIA in order for them to be captured. There is no question but that Europe’s involvement in extraordinary rendition was anything but casual; it was deep, committed, purposeful and covert. It was also illegal.
It is vital that we now put in place accountability processes that would seek an understanding of European states’ abandonment of the continental constitutional commitment to the prohibition of torture and cooperation – directly
and by means of indirect facilitation – in extraordinary rendition. Accountability processes have begun across Europe.
For example. the Council of Europe has long since concluded an influential reporting process on rendition in and through Europe criticising many states’ involvement (including Ireland’s); the former head of Polish intelligence, Zbigniew Siemiatkowski, has been charged with “unlawfully depriving prisoners of their liberty” because of his alleged involvement in helping the CIA establish a secret prison in northeastern Poland; and the European Parliament has announced that two parliamentary committees will join forces to report on European complicity in rendition.
However, important as these ex post facto accountability processes are, they are unlikely to get to the core question that we must grapple with if we really are to be a “Europe of rights”: How and why did European states willingly engage in processes that involved torture and breached the most clear and absolute of international laws?
For over 60 years the European Convention on Human Rights, now signed by 47 countries and soon also to be binding formally on the European Union, has enshrined a very simple principle in its Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” If we are to ensure true accountability for rendition in Europe, and to match our rhetorical commitment to human rights with a behavioural equivalent, we must get to the bottom of our apparent abandonment of this absolute and unassailable commitment.
Dr Fiona de Londras is a lecturer in UCD
School of Law and author of Detention in the War on Terror: Can Human Rights Fight Back? (2011: Cambridge University Press)