New York University Public Law and Legal Theory Working Papers

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COUNTER-TERRORISM AND INTERNATIONAL LAW: MEETING THE CHALLENGES (van den Herik & Schrijver, eds., forthcoming 2010)


The practice of rendition - the involuntary 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. Although such renditions have been controversial in human rights circles, they have been celebrated by many as crucial in the fight against impunity for grave crimes and are sometimes called “rendition to justice.”

The administration of former U.S. President George W. Bush was criticized for the new practice of “extraordinary rendition” - the transfer of suspects to countries known for the systematic use of torture. U.S. officials at the time defended the practice, relying on justifications developed to support “rendition to justice” and arguing that the practice was legal. Despite these justifications, international human rights bodies and intergovernmental bodies 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 the context of counter-terrorism efforts.

This article fills the void in the literature by examining the legal norms governing such transfers and setting out a minimum standard that must be upheld whenever a state transfers an individual. As a threshold matter, formal processes for transfer may not be intentionally bypassed and the transferring state must have a valid legal basis for apprehending the individual in contemplation of transfer. Substantive rules protect individuals against transfer to a real risk of: torture or cruel, inhuman or degrading treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedural rules guarantee the individual the ability to challenge the basis for his or her apprehension/detention in advance of transfer before an independent decision-maker on the grounds provided for in international law. Where diplomatic assurances are used, they must be accompanied by rigorous safeguards including judicial review and effective post-return monitoring by the transferring state.

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