rendition the “extraordinary rendition” program

7/31/2019 Rendition the extraordinary rendition program

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Rendition: The Need to Obtain Vital Intelligence Information and To

Transfer Suspected Terrorists to Countries That Practice Interrogational

Torture

By: Wael Lafi

Introduction

Rendition is the extra-legal way to bring people to justice.1

The original term of rendition to

justice means: The return of a fugitive from one state to the state where the fugitive is accused

or was convicted of a crime.2 What was once known as rendition has become known as

extraordinary rendition, which means:

The transfer, without formal charges, trial, or court approval, of a person suspected of

being a terrorist or supporter of a terrorist group to a foreign nation for imprisonmentand interrogation on behalf of the transferring nation. When an innocent person is

subjected to extraordinary rendition, it is also termed erroneous extradition. When a

transfer is made to a nation notorious for human-rights violations, it may be colloquially

termed torture by proxy or torture flight.3

The extreme concern with Al Qaida attacks was behind the creation of the extraordinary

rendition program, operated by the CIA in 1995 during the Clinton administration.4

At this time

Clinton signed an executive order that expanded the CIAs ability to render terrorists from

1Alan W. Clarke, RENDITION TO TORTURE: A CRITICAL LEGAL HISTORY, RUTGERS LAW REVIEW, at 5(February, 7,

2012, 4:00 pm),http://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdf.

2 Black's Law Dictionary (9th ed. 2009), rendition.

3Id.

4Peter Johnston, LEAVING THE INVISIBLE UNIVERSE: WHY ALL VICTIMS OF EXTRAORDINARY RENDITION NEED A

CAUSE OF ACTION AGAINST THE UNITED STATES, Journal of Law & Policy

2007, at 3. 16 J.L. & Pol'y 357.
http://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdfhttp://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdfhttp://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdfhttp://pegasus.rutgers.edu/~review/vol62n1/Clarke_v62n1.pdf


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abroad.5

This order stated: If we do not receive adequate cooperation from a state that harbors a

terrorist whose extradition we are seeking, we shall take appropriate measures to induce

cooperation. Return of suspects by force may be affected without the cooperation of the host

government.6

Michael F. Scheuer, former CIA Chief of the Bin Laden Unit, stated that the goals of the

program were to take men off the street who were planning, or had been involved in, attacks on

the US or its allies and to seize hard-copy or electronic documents in their possession when they

were arrested, things that Americans were never expected to read. 7 Under the Clinton

administration, interrogation was never the goal of this program for several reasons. This would

have been a foreign intelligence or security service without the CIA present or in control, and the

information, filtered by the foreign intelligence holding the individuals would never have been

complete. In addition, torture would have been used to obtain information, and therefore, it might

simply have been what an individual thought the CIA wanted to hear.8

5Presidential Decision Directives, Memorandum from President Clinton to the Vice President and Others, THE

WHITE HOUSE WASHINGTON, U.S. Policy on Counterterrorism, June 21, 1995. Last visit on feb, 7, 2012,6:00pm

available athttp://www.fas.org/irp/offdocs/pdd39.htm.

6Id, at 1.

7A Statement by Michael F. Scheuer Former Chief, Bin Laden Unit CIA, Extraordinary Rendition in U.S. Counter

terrorism Policy The Impact on Transatlantic Relations, Statement before the House Committee on Foreign Affairs,

Subcommittee on International Organizations, Human Rights, and Oversight Subcommittee on Europe.(2007)

available athttp://foreignaffairs.house.gov/110/sch041707.htm.

8Id.
http://www.fas.org/irp/offdocs/pdd39.htmhttp://www.fas.org/irp/offdocs/pdd39.htmhttp://www.fas.org/irp/offdocs/pdd39.htmhttp://foreignaffairs.house.gov/110/sch041707.htmhttp://foreignaffairs.house.gov/110/sch041707.htmhttp://foreignaffairs.house.gov/110/sch041707.htmhttp://foreignaffairs.house.gov/110/sch041707.htmhttp://www.fas.org/irp/offdocs/pdd39.htm


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This does not mean that during the Clinton administration no one was sent to countries where

they were likely to have faced torture. For example, Talaat Fouad Qassem was kidnaped by CIA

agents in Croatia and sent to face torture in Egypt in 2003.9

After the September 11, 2001 attacks, the program of extraordinary rendition changed. After

9/11 the gloves came off.10

After the Al Qaida attacks, President Bush expanded the rendition

process and extended CIA power to this program.11 From 2001 to 2005, thousands of individuals

were subjected to rendition12

by transferring individuals for interrogation to countries with a

record of using torture, such as Jordan, Uzbekistan, Morocco, Syria, and Egypt, all countries the

U.S. had criticized for practicing torture.13

The key to winning the counter terrorism war is to obtain information to prevent future attacks

from terrorist organizations. To obtain information, nearly 3,000 suspected Al Qaeda members

9Supra, not 1, at 23.

10Supra, not 4.

11Press Release, Am. Civil Liberties Union, CIA Finally Acknowledges Existence of Presidential Order on Detention

Facilities Abroad (Nov. 14, 2006) last visit feb, 7, 2012, 7:30 pm. available at

http://www.aclu.org/safefree/torture/27382prs20061114.html.

12Margaret L. Satterthwaite, The Story of ElMasri v. Tenet: Human Rights and Humanitarian Law in the War on

Terror, New York University Public Law and Legal Theory Working Papers. (12-22-2008). at 544. Last visit

feb,7,2012, 7:30 pm. Available at http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-

redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%252

0satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A

%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A

%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22marg

aret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22

13Report by Amnesty international U.S.A, Amnesty International is concerned by the practice of extraordinary

renditions, 2005. Last visit feb,7,2012, 9:00 pm. Available at

http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.1387629/k.F4A8/Extraordinary_Renditions__US_outsourci

ng_Torture.htm.
http://www.aclu.org/safefree/torture/27382prs20061114.htmlhttp://www.aclu.org/safefree/torture/27382prs20061114.htmlhttp://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://lsr.nellco.org/cgi/viewcontent.cgi?article=1109&context=nyu_plltwp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmargaret%2520l.%2520satterthwaite%252C%2520the%2520story%2520of%2520el%25E2%2580%2593masri%2520v.%2520tenet%253A%2520human%2520rights%2520and%26source%3Dweb%26cd%3D2%26ved%3D0CCoQFjAB%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1109%2526context%253Dnyu_plltw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e%253D1109%2526context%253Dnyu_plltwp%26ei%3D6L0xT72iJuHf0QHPsInHBw%26usg%3DAFQjCNGMExBy_5nAmRIvL0mEHAkeMoDkdA#search=%22margaret%20l.%20satterthwaite%2C%20story%20el%E2%80%93masri%20v.%20tenet%3A%20human%20rights%22http://www.aclu.org/safefree/torture/27382prs20061114.html


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and their supporters have been detained worldwide since Sept. 11, 2001,14

and thousands have

been arrested and held with U.S. assistance in countries known for the brutal treatment of

prisoners.15

The necessity to force captives to disclose information caused the CIA to do this,

and this rendition raised tremendous criticism against the U.S.16According to one official who

has been directly involved in rendering captives into foreign hands, the understanding is, We

don't kick the [expletive] out of them. We send them to other countries so they can kick the

[expletive] out of them. Some countries are also known to use mind-altering drugs, such as

sodium pentathol.17

This study is not an attempt to address all forms of rendition used by the U.S. such as rendering

terrorists to Guantanamo, Iraq or Afghanistan. In Part I, this study will explore the practice of

extraordinary rendition from the testimony of those who have endured this practice. In Part II, it

will explore extraordinary rendition in relation to international human rights law. In Part III, this

study will demonstrate that, by operating the extraordinary rendition program, the United States

is in violation of its obligations under international human rights law.

14Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations; 'Stress and Duress' Tactics Used

on Terrorism Suspects Held in Secret Overseas Facilities, Washington Post, 26 December 2002. Last visit

feb,8,2012. 8:50,pm. Available at,http://www.hartford-hwp.com/archives/27a/092.html.

15Id.

16Id.

17Id.
http://www.hartford-hwp.com/archives/27a/092.htmlhttp://www.hartford-hwp.com/archives/27a/092.htmlhttp://www.hartford-hwp.com/archives/27a/092.htmlhttp://www.hartford-hwp.com/archives/27a/092.html


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I. Testimony from Individuals Who Have Endured Extraordinary Rendition.For a long time, the US administration and almost all officials in the United States denied that

the United States has been involved in or was practicing rendition to torture, 18 but the existence

of the program has been documented through the first-hand testimony of post detainees.19

Also,

many journalists have recorded the testimony of victims, such as Binyam Mohamed,20

Hassan

Mustafa Osama Nasr,21and Khaled El-masri.22 This paper will analyze their testimony.

A- Binyam Mohamed:

Binyam Mohamed is a British resident, originally from Ethiopia, who applied for asylum in

Great Britain in 1994.23 In May 2001 he flew to Islamabad, using money he had saved. Because

his Ethiopian passport had expired, and as an asylum seeker, he did not have a British one, he

borrowed a British passport from a friend and changed the photo.24 A few weeks after his arrival

in Islamabad, he went to Kabul where he learned about the 9/11 attacks while he was in the

18In the National Security Adviser to George W. Bush in 2001, and served as the 66th Secretary of State of the

United States from January 2005 As Condoleezza Rice declared. Outlawed: Extraordinary Rendition, Torture and

Disappearances in the "War on Terror, documentary film, Google videos. Available at,

http://video.google.com/videoplay?docid=3080182736973832540#.

19USA: Torture and secret detention: Testimony of the 'disappeared' in the 'war on terror', Amnesty International,

3 August 2005, last visit feb, 9, 2012, 5:00 pm, available at

http://www.amnesty.org/en/library/info/AMR51/108/2005/en

20Seven Years of Torture: Binyam Mohamed Tells His Story, Andy Worthington, Investigative journalist, author,

filmmaker and Guantanamo expert, last visit, feb, 9, 2012, 5:22 pm available at,

http://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/

21ELISABETTA POVOLEDO, MARK MAZZETTI, RACHEL DONADIO, News about Hassan Mustafa Osama Nasr,

including commentary and archival articles published in The New York Times. Last visit feb, 9, 2012, 5:30 pmavailable at

http://topics.nytimes.com/topics/reference/timestopics/people/n/hassan_mustafa_osama_nasr/index.html.

22Supra, not 18.

23Supra, not 20.

24Supra not 20.
http://video.google.com/videoplay?docid=3080182736973832540http://video.google.com/videoplay?docid=3080182736973832540http://www.amnesty.org/en/library/info/AMR51/108/2005/enhttp://www.amnesty.org/en/library/info/AMR51/108/2005/enhttp://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/http://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/http://topics.nytimes.com/topics/reference/timestopics/people/n/hassan_mustafa_osama_nasr/index.htmlhttp://topics.nytimes.com/topics/reference/timestopics/people/n/hassan_mustafa_osama_nasr/index.htmlhttp://topics.nytimes.com/topics/reference/timestopics/people/n/hassan_mustafa_osama_nasr/index.htmlhttp://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/http://www.amnesty.org/en/library/info/AMR51/108/2005/enhttp://video.google.com/videoplay?docid=3080182736973832540


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hospital.25

He decided to return to London via Pakistan, but he was turned back by officials as

he tried to board a flight on April 3, because his passport looked wrong.26 A week later, when

he tried again, he was detained by the authorities and taken to Landi prison.27

His nightmare

began.28 He refused to talk to the FBI agent, who introduced himself to Binyam as Chuck, until

they brought his lawyer.29

Chuck told him that there was no lawyer, and the law had changed.

You can cooperate with us the easy way or the hard way, ifyou dont want to talk we are going

to send you to Jordan, we cant deal with you here, the Arabs can deal with you.30 Binyam

stated:

For at least ten days, I was deprived of sleep. Sometimes the Pakistanis chained me from thetop of the gate to the cell by my wrists from the end of one interrogation to the start of the

next for about 22 hours. If I shouted, sometimes I would be allowed to use a toilet. Other

times, they wouldnt let me go and I would piss myself. They had a thick wooden stick, like a

kind of paddle, which they used to beat me while I was chained. Theyd beat me for a fewminutes, then stop, then start again. They also carried out a mock execution. A guard put a

gun to my head and said he was going to pull the trigger. They were saying, This is what the

Americans want us to do.31

Binyam was then subjected to extraordinary rendition, and, as flight logs confirm, was flown

from Islamabad to Rabat, Morocco on July 21, 2002.32

He endured eighteen months of torture at

25Id.

26Id.

27Id.

28 Id.

29Supra not 18.

30Id.

31Supra, not 20.

32Id


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the hands of the American proxy torturers in Morocco, who regularly cut his penis with a razor

blade.33

In January 2004, Binyam was rendered to Afghanistan, to the CIAs Dark Prison near Kabul,

from which dozens of prisoners ended up in Guantnamo.34

After being moved to the US prison

at Bagram Airbase, where he spent another four months, Binyam arrived at Guantnamo on a

flight with nine other prisoners who had been subjected to extraordinary rendition and torture

in September 2004.35

On Feb 23, 2009, Binyam Mohamed was released from Guantanamo and

was sent back to the UK.36 Binyam was the first detainee released under the Obama

administration.37

B- Khaled El-MasriKhaled El-Masri is a Kuwaiti national of Lebanese decent who moved to Germany in 1985 and

became a German citizen in 1995.38

He was arrested by Macedonian authorities while crossing

33'One of them made cuts in my penis. I was in agony', The Guardian, Monday 1 August 2005 19.55 EDT

Article history, last visit feb, 9,2012 6:30 pm available at

http://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights1

34Supra, not 20.

35Id.

36Binyam Mohamed arrives back in the UK after detention in Guantanamo Bay Cuba. you tube. Last visit

4/29/12(9:23 AM) available athttp://www.youtube.com/watch?v=8dZoN2vBRXU&feature=related

37Former U.S. Detainee Alleges British Complicity in Torture, Kevin Sullivan, Washington Post, Monday, March 9,

2009. Available athttp://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.html

38El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), at 533.
http://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights1http://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights1http://www.youtube.com/watch?v=8dZoN2vBRXU&feature=relatedhttp://www.youtube.com/watch?v=8dZoN2vBRXU&feature=relatedhttp://www.youtube.com/watch?v=8dZoN2vBRXU&feature=relatedhttp://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/03/08/AR2009030801201.htmlhttp://www.youtube.com/watch?v=8dZoN2vBRXU&feature=relatedhttp://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights1


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the border between Serbia and Macedonia; they interrogated him and held him in a hotel room

for twenty-three days.39

El-Masri learned that he was an al Qaeda terrorist suspect, and was told that, if he confessed to

his involvement with al Qaeda, he would be returned to Germany.40

El-Masri refused. Later, El-

Masri was blindfolded and driven to an airstrip, where he was stripped, beaten, sodomized, and

then photographed.41 When he regained his sight from the flash of the cameras, he saw seven

or eight men dressed in black and wearing black ski masks.42

El-Masri alleges that these men

dressed him in a diaper, a tracksuit, and earmuffs, and that he was then blindfolded, shackled,

and dragged to an airplane where his captors injected him with a sedative that rendered him

nearly unconscious.43 El-Masri was flown to Kabul, Afghanistan, where he was kept in a prison

that he claims was a CIA-run facility known as the Salt Pit.44

El-Masri made repeated demands throughout his detention to contact his family, his government,

and legal counsel, but such requests were always denied.45

After 27 days without food, El-Masri

states he was brought before two unmasked persons he believes were CIA agents in charge of the

Salt Pit.46

These men refused to accede to El-Masri's demands to release him, to charge him

with a crime, or to allow him to contact a German official.47

Although the American official

39Id.

40Id.

41Id

42Id.

43Id.

44Id.

45Id.

46Id.

47Supra not 18.


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denied these requests, El-Masri contends that the official conceded to El-Masri that El-Masri's

detention was a mistake, but that he could not agree to El-Masri's release without permission

from Washington. At this point, El-Masri states he was returned to his cell where he continued

his hunger strike. After ten more days without nourishment, El-Masri asserts his captors fed him

forcibly by inserting tubes into his nose and his mouth through which they pumped liquid

sustenance. El-Masri was held in the Afghani prison until May 28, 2004, at which point he was

flown to Albania and left on the side of an empty road in the middle of the night.48

C- Hassan Mustafa Osama NasrHassan Mustafa Osama Nasr, an Egyptian citizen also known as Abu Omar, had been living in

Milan, Italy with his family when he was reportedly abducted by the Central Intelligence Agency

CIA on February 17, 2003.49

The Italian government granted Abu Omar political asylum. At

the time of his abduction, the Italian government had Abu Omar under investigation for possible

terrorism-related offenses.50

The Abu Omar case become known after Italian judicial authorities issued arrest warrants against

CIA agents for their responsibility in his abduction.51

The warrants, which charged the agents

48Id

49The judge presiding over preliminary investigation, tribunal de Milan, At 2, case no. 10838/2005 R.G.N.R.

available at http://www.washingtonpost.com/wp-srv/world/documents/milan_warrants.pdf

50Id.

51Id.
http://www.washingtonpost.com/wp-srv/world/documents/milan_warrants.pdfhttp://www.washingtonpost.com/wp-srv/world/documents/milan_warrants.pdfhttp://www.washingtonpost.com/wp-srv/world/documents/milan_warrants.pdf


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with kidnapping, included detailed evidence gathered from cell phone records traced to the

alleged agents, flight records, wiretap evidence, and witness statements.52

The case began with Abu Omar walking one kilometer from his home to the Viale Jenner

Mosque in Milan on February 17, 2003.53

According to an eyewitness who was present at the

time of the kidnapping, a bearded, Arab-looking man was walking down Via Guerzoni toward a

Western-looking man in sunglasses, near a light-colored van that had parked in such a way that it

obstructed the sidewalk.54

After passing the men, the witness stopped with her children on the

opposite side of the street, then crossed and heard a loud sound like the slamming of a door

behind her.55 According to her statement, made less than ten days after the event, when the

witness turned around, she saw that the Arab man and the Western man were gone, and the van

was speeding away.56

On March 2003, the Italian investigator received a communication from the American

authorities, stating that Abu Omar had been relocated to an unknown Balkan location.57

The

Italian authorities made little progress investigating the kidnapping until the spring of 2004,

when investigators, looking into Abu Omar's potential links to terrorism, intercepted several

phone calls he placed from Egypt to his wife and a colleague. In these phone calls, Abu Omar

described what happened on the day of his abduction. He was stopped on the street by Italian-

52

CIA on Trial - 16 minute documentary trailer, journeymanpictures on Apr 8, 2010,

http://www.youtube.com/watch?v=ZZ53MotCoVk&feature=related

53 Id.54

Id.55

Supra, not 49, at 3.

56Id.

57Id, at 26.
http://www.youtube.com/watch?v=ZZ53MotCoVk&feature=relatedhttp://www.youtube.com/watch?v=ZZ53MotCoVk&feature=relatedhttp://www.youtube.com/watch?v=ZZ53MotCoVk&feature=related


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speaking men claiming to be police officers whom, after demanding his identification, sprayed

chemicals into his face and forced him into the van. 58 The abductors then drove him, his mouth

taped shut, for about five hours to a U.S. airbase. In a call to his colleague, Abu Omar described

being beaten, tortured, and repeatedly questioned about his connections to al Qaeda, his

relationship to Albanian radical Islamists, and whether he was involved in recruiting volunteers

to fight against the United States in Iraq.59

The following morning, Abu Omar was placed on a military aircraft and flown to another U.S.

military base, later identified as Ramstein Airbase in Germany, where he was placed on a

Gulfstream executive jet and flown to Egypt.60 Egyptian officials blindfolded him and took him

to a secret service building in Cairo for interrogation.61 When he refused to act as an informer, he

was transported to another building and was tortured; electric shocks were administered to his

genitals, and he was hung upside down.62

Abu Omar received at least 16 court orders for his release; his detention order was repeatedly

renewed by the Egyptian Minister of Interior under emergency legislation. In February 2007,

Abu Omar was released from his prison in Egypt.63

As mentioned previously, extraordinary rendition is the transfer or even abducting of a person

suspected of being a terrorist or supporter of a terrorist group, from State A to State B without

58Id, at 26, 27, 28, 29,30,31,32.

59 Id.60

Id.61

Id.62

Id.

63Document - Italy: The Abu Omar case, AMNESTY INTERNATIONAL MEDIA BRIEFING, 4 November 2009. Last visit

feb, 16, 2012. At 5:16 pm. Available athttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-

a31f-40b6-85e0-acaad4606277/eur300122009en.html
http://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.htmlhttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.htmlhttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.htmlhttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.htmlhttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.htmlhttp://www.amnesty.org/en/library/asset/EUR30/012/2009/en/90188bdf-a31f-40b6-85e0-acaad4606277/eur300122009en.html


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formal charges, trial, or court approval, for interrogation by State B on behalf of State A

using interrogational torture.64 This was a violation of international law as we will explain in the

next section of this study.

II. Extraordinary Rendition in Relation to International Law

The motive behind the creation of the extraordinary rendition program was, in addition to

enabling U.S agencies to question suspected terrorists, to circumvent the U.S legal system.65

The

U.S legal system prohibits detaining suspects in secret prisons and using enhanced interrogation

tactics on U.S. territory,66

The United States circumvented its on legal system even though

international human rights law prohibits the practice of torture through several international

treaties that the United States had ratified.This section will examine this practice through the

provisions of international instruments that prohibit both torture and the transfer of individuals to

states where they will be in danger or at risk of torture.

A. The Universal Declaration of Human RightsThe Universal Declaration of Human Rights (UDHR) is the basis for civil and political rights,

including the right to life, the security of ones person, the right to a fair trial, the right to a

nationality, freedom of movement, and freedom of religion and expression.67

The UDHR is an

aspirational declaration but also pronounces a wide variety of basic civil and political rights,

64Supra not 2.

65Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post Staff Writer The Washington Post

Wednesday, November 2, 2005; Front Page A-1. Last visit 3/7/2012(10:48 AM) available at

http://www.danapriestfansite.com/writings/priest01.html

66Id.

67The Universal Declaration of Human Rights, G.A Res. 217 (III), U.N. Duc. A/777 (Dec.10, 1948).
http://www.danapriestfansite.com/writings/priest01.htmlhttp://www.danapriestfansite.com/writings/priest01.htmlhttp://www.danapriestfansite.com/writings/priest01.html


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although governments originally intended the UDHR to serve only as an intermediate step

toward the preparation of a binding international human rights treaty.68

Article 3 of the Universal Declaration pledges the right of life, liberty and the security of

person.69

Article 5 forbids torture and cruel, inhuman or degrading treatment or punishment.70

Article 6 emphasizes that everyone has the right to recognition everywhere as a person before

the law.71 Denying a detainee access to judicial procedures for extradition violates Article 6, as

does denying him the right to communicate with a lawyer. Also, Article 8 states that everyone

has the right to an effective remedy by the competent national tribunals for acts violating the

fundamental rights granted him by the constitution or bylaw.72 Article 9 prohibits arrests

without charges or with fake charges when it says: No one shall be subjected to arbitrary arrest,

detention or exile.73

Extraordinary renditions also violate theright to equality and fair and

public hearing by an independent and impartial tribunal, ofcriminal charge.74

Also,

extraordinary rendition violates Article 11s principle ofthe right to be presumed innocent until

proved guilty according to the law75

It also violates the right to freedom of movement and

68Infra not 80, at 410,422.

69Supra not 67, article 3.

70Id, article 5.

71 Id, article 6.

72Id, article 8.

73Id, Article 9.

74Id, Article 10.

75Id, Article 11.


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the right to leave any country from Article 13,76

and the right to seek and enjoy in other

countries asylum.77

A. The International Covenant on Civil and Political Rights:The Universal Declaration of Human Rights establishes a common standard of achievement for

all peoples and all nations.78

The International Covenant on Civil and Political Rights (ICCPR)

79closely takes after the first half of the UDHR.

80However, there are significant differences

between ICCPR and UDHR, with the most important for our topic being that the Covenant is a

formally binding treaty and the UDHR is just an aspirational declaration.81

Therefore, Article

2(1) from ICCPR importantly states that each state party to the present Covenant undertakes to

respect and to ensure to all individuals within its territory and subject t o its jurisdiction82

The

language of this article recommends that a state partys obligations under this convention are

only on its own territory. This theory is not absolute, however, because the Human Rights

Committee has stated that a state party has obligations toward persons within its power or

effective control. As the Committee stated in its general comment: This means that a State party

must respect and ensure the rights laid down in the Covenant to anyone within the power or

76Id, Article 13.

77Id, Article 14.

78Supra, not 67, at preamble.

79The International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 177, 6 ILM 368.

80Dunoff, Ratner, Wippman. International Law Norms, Actors, Process A Problem-Oriented Approach.412.

(Wolters Kluwer. Third Edition. 2010)

81Id.

82Supra not,79, Article 2.


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effective control of that State Party, even if not situated within the territory of the State Party.83

Therefore, states that operate extraordinary rendition programs through arrests and rendering

persons to other countries shall offer all the rights to those prisoners according to the provisions

of ICCPR. Article 2(1) and Article 7 specifically prohibit torture or cruel treatment as well as

inhuman or degrading treatment or punishment.84

The Human Rights Committee mentioned that

a state party should not extradite or expel or deport any person from its territory where there is

real risk and substantive ground to believe that there will be irreparable harm or when the

country knows that the person will be tortured.85

Also, Article 9 prohibits arbitrary arrest or

detention on the grounds that everyone has the right to liberty and security, and no one should be

deprived of his liberty.86

Article 10 requires a state party to treat its prisoners with humanity and

with respect for the inherent dignity of the human person.87 The Human Rights Committee in

Mansour Ahani v. Canada88

stated that The Committee emphasizes that, as with the right to life,

the right to be free from torture requires not only that the State party not only refrain from torture

but take steps of due diligence to avoid a threat to an individual of torture from third parties.89

83United Nations, Human Rights Committee, General Comment 31, Nature of the General

Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

Last visit March 7, 2012 (7:30 pm) available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElement

84Supra not, 79, Article 7.

85Supra note 83 12.

86 Supra not 79, Article 9.

87Id, Article 10.

88Ahani v. Canada, United Nations, Human Rights Committee, 80th Sess., Comm. No. 1051/2002, U.N. Doc.

CCPR/C/80/D/1051/2002. (06/15 / 2004). Last visit March 7, 2012 ( 8:30pm) available at

http://www.unhchr.ch/tbs/doc.nsf/0/34e53fc64eba40aec1256eb50027226d

89Id, at 10.7
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElementhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElementhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElementhttp://www.unhchr.ch/tbs/doc.nsf/0/34e53fc64eba40aec1256eb50027226dhttp://www.unhchr.ch/tbs/doc.nsf/0/34e53fc64eba40aec1256eb50027226dhttp://www.unhchr.ch/tbs/doc.nsf/0/34e53fc64eba40aec1256eb50027226dhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElementhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/419/56/PDF/G0441956.pdf?OpenElement


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The UN special report on torture states:90

no circumstances whatsoever, whether a state of war

or a threat of war, internal political instability or any other public emergency, can be invoked as

a justification of torture.91

It also states: A comprehensive review of interrogation methods is

required to ensure that they comply with international human standards prohibiting torture and

ill-treatment.92

Article 13 states that an alien lawfully in the territory of a state party to the present covenant

may be expelled therefrom only in pursuance of a decision reached in accordance with law93

This means that an alien, according to the second part from Article 13, has the right in the case of

expulsion to have a competent authority review the case. Hence, extraordinary rendition violates

Article 13 because this decision was not reached in accordance with the law, and because it does

not provide adequate review.94

Article 14 illustrates that the extraordinary rendition program

violates the ICCPRs requirement that all persons shall be equal before the courts and

tribunals.95 The detainees are not allowed to come before the courts, and in Clause (2), there

90The UN Special Rapporteur on Torture criticizes the undermining of the non-refoulement principle and the use of

Terrorism as a pretext to justify torture. State watch report. Delivered to the General Assembly, U.N. Doc.

A/59/324 (Sept. 1, 2004) last visit March 7, 2012(8:40 pm) available at

http://www.statewatch.org/news/2004/nov/un-torture.pdf

91Id, at 1.

92 Supra not 88, at 3.

93Supra, not 79 article 13.

94Supra not 88, 10.6.

95Supra not 79 article 14.
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exists the presumption of innocence and a fair hearing.96

Interrogations that take place after

transfer likely violate Article 14(g).97

According to Article 4, a states party in time of public emergency may take measures

derogating from their obligations under the pursuant covenant.98

This license, however, is not

absolute, and the covenant does state that no derogation from articles 6, 7, 8(paragraph 1 and 2),

11, 15, 16 and 18 may be made under this provision.99

B. The International Covenant on Economic, Social, and Cultural Rights:

The ICCPR and the International Covenant on Economic, Social, and Cultural Rights100

(ICESCR) are in some respects similar.101Both of the covenants preambles were based on the

UDHR, unlike the ICCPR and the ICESCR, which do not contain any clear jurisdictional

limitation.102 Article 11 illustrates the right to an adequate standard of living for all persons and

their families.103

This means that when a state party operates an extraordinary rendition, the state

96Id.

97Id.

98Supra not 79, Article 4.

99Id.

100International Covenant on Economic, Social and Cultural Rights, entered into force Jan. 3, 1976, 993 U.N.T.S. 3.

101Supra, not 80, at 453.

102Supra not 79, 83.

103Supra, not 98, article 11.


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violates Article 11 and violates apersons economic, social and cultural rights as well as Article

12, which protects the rights of physical and mental health.104

C. The Convention Against Torture and Other Cruel, Inhuman, or DegradingTreatments or Punishment:

Article 1 from The Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT) defines torture105

as: torture means any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or a third person information or a confession.106

The

condition in this definition is that such pain or suffering should be inflicted by or at the

instigation of or with the consent or acquiescence of public official or other person acting in an

official capacity.107

Article 3 prohibits a state party from expel[ing] and return[ing] or

extradite[ing] a person to another state where there are substantial grounds for believing that he

would be in danger of being subjected to torture.108

Therefore, competent authorities [must]

take into account all relevant considerations,109

for the purpose of determining whether there are

grounds to believe that the person might be tortured. The United Nations Advisory Committee

when it wrote The History of the Drafting of the Convention against Torture noted that Article 3

104Id, article 12.

105Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

1465 U.N.T.S. 85 (entered into force June 26, 1987)

106Id, article 1(1).

107Id.

108Id, article 3(1).

109Id, 3(2)


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is based on Article 33 of the 1951 Geneva Convention relating to the statute of refugees.110

The

drafters of the convention noted that a reservation or a declaration to Article 3 of the convention

would be legally permissible.111

Importantly, the drafters of the convention discussed the

situation where a state party has the obligation to extradite a person to another country according

to a bilateral or multilateral agreement for the purpose of criminal prosecution.112

However, the

drafters admitted that such a situation would be considered a conflict between the present

convention and existing extradition treaties. Therefore, the drafters noted that where the

obligations under these treaties are so absolute that they allow of no exception even in the special

circumstances envisaged in article 3.

113

Article 2 provides that there is no ground for the justification of torture114in any circumstances,

whether it be a state of war or another public emergency.115

Article 4 provides that a state party

shall ensure that all acts of torture are criminalized.116

Also, Articles 5 and 7 require each state

party to extradite or prosecute accused torturers who are present in any territory under its

jurisdiction.117

Moreover, Article 16 requires that Each State Party shall undertake to prevent in any territory

under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishments which

110Convention Relating to the Status of Refugees, entered into force Apr. 22, 1954, 19 U.S.T. 6223,

189 U.N.T.S. 150.111

J. Herman Burgers and Hans Danelius, the united nation convention against torture, a handbook on the

convention against torture or degrading treatment or punishment, 127,( Martinus Nijhoff, 1st

eds, 1988).

112 Id, at 126.113

Id.114

Supra not ,105, article 2(3)115

Id, 2(2).

116Supra not,105 article 4(1).

117Supra not 105, article 5,7.


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do not amount to torture as defined in article 1118

According to the convention drafters, this

article corresponds basically to the general obligations in Article 2 Paragraph 1.119

D. The Vienna Convention on Consular Relations:According to Article 36 (1) (b) The Vienna Convention on Consular Relations

120(VCCR), any

person taken into custody by competent authorities of a member state shall without delay inform

the detainee about his right to consular access.121

This convention is responsible for the

protection of diplomats,122 and also assures consular access to individuals not located in their

country of nationality according to Article 36.

Clearly, extraordinary rendition violates the provisions of this convention. Even an occupying

power is obliged by the language of Article 36.123

E. Geneva Convention Relative to the Treatment of Prisoners of War:Article 1 of The Geneva Convention Relative to the Treatment of Prisoners of War

124(POWs)

illustrates that [T]he High Contracting Parties undertake to respect and to ensure respect for the

present Convention in all circumstances,125 and to protect prisoners of war detained as

118Supra, not 105, article 16(1)

119Supra, not 111, at 149.

120Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 100-1, 596 U.N.T.S. 261.

121 Id, article 36 (1)(b).122

Id, article 3135, 4043.123

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT, PROTECTED PERSON STATUS IN OCCUPIED

IRAQ UNDER THE FOURTH GENEVA CONVENTION, 11, March 18, 2004. Last visit March 8, 2012 (4:25 pm).

Available athttp://www.justice.gov/olc/2004/gc4mar18.pdf

124Geneva Convention Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, 6 U.S.T. 3316, 75

U.N.T.S. 135.125

Id , article 1.
http://www.justice.gov/olc/2004/gc4mar18.pdfhttp://www.justice.gov/olc/2004/gc4mar18.pdfhttp://www.justice.gov/olc/2004/gc4mar18.pdfhttp://www.justice.gov/olc/2004/gc4mar18.pdf


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a consequence of international armed conflict.126

Article 4 defines prisoners of war as members

of the armed forces members of militias127 or volunteer corps, and those of organized

resistance movement.128

However, these prisoners in order to be eligible for protection must

comply with four additional requirements: being commanded by a person responsible for his

subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly;

conducting their operations in accordance with the laws and customs of law.129

If prisoners do

not meet these qualifications, the POW Convention does not apply to them, and they

automatically acquire protected person status under the Geneva Convention Relative to the

Protection of Civilian Persons in Time of War.

130

Article 5 states: If there was doubt that a

persons referred to article 4 having committed a belligerent act and was arrested they shall enjoy

the protection of present convention and their status determined by a competent tribunal.131

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to

the Convention and after the Detaining Power has satisfied itself of the willingness and ability of

such transferee Power to apply the Convention. When prisoners of war are transferred under


127Supra, not 124, article 4(1).

128Supra, not 124, article 4(2)

129Id, at 4(2) a.b.c.d.

130Commentary, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva,

12 August 1949. PARAGRAPH 4. -- PERSONS PROTECTED BY OTHER CONVENTIONS, International HumanitarianLaw - Treaties & Documents, ICRC, last visit March 8, 2012(5:50 pm) available at

http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument

http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocumenthttp://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocumenthttp://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument


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such circumstances, responsibility for the application of the Convention rests on the Power

accepting them while they are in its custody.132

Article 13 illustrates that prisoners of war must at all times be humanely treated.133 Any act by

a detaining power causing death or seriously endangering the health of prisoners is regarded as a

breach of the convention,134

and any act such as torture or inhuman treatment and injury to the

body or health of prisoners is considered a grave breach of the convention.135

As mentioned previously, extraordinary rendition is the transfer of an individual, with the

involvement of the U.S. or its agents, to a foreign State in circumstances that make it more likely

than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment.

All the international conventions and covenants have set out several relevant obligations on any

State: prohibition on torture; a prohibition on cruel, inhuman, or degrading treatment; a

prohibition against the transfer of an individual to another State where that individual faces the

risk of torture; and a requirement to prevent, criminalize, investigate and punish acts of torture,

conspiracy to torture, and aiding and abetting in acts of torture. The next section illustrates these

violations to the international law.

II. The Extraordinary Rendition Program Violates International LawAs cited previously, the necessity to force captives to disclose information caused the CIA to

render them to countries known for brutal treatment of prisoners and this rendition raised

tremendous criticism against the U.S.136 Crimes against humanity, genocide, and torture are all



134Id.


136Supra not 14.


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examples of human rights violations as this study described in Part II. The international human

rights community identified these types of crimes during the twentieth century movement to

establish international human rights standards. Over time, however, extraordinary rendition has

appeared as a type of human rights violation, albeit human rights conventions do not specify the

practice of extraordinary rendition as an offense prohibited by name. Therefore, extraordinary

rendition is a mixture of human rights violations, such as arbitrary arrest, enforced

disappearance, forcible transfer, torture, denial of access to consular officials, and denial of

impartial tribunals. Usually, U.S. government officials deny any involvement or abuse of

international law through the extraordinary rendition program when they talk in public, but in

reality they know that the countries to which they are rendering captives are abusing them.137

Part I contained testimony from individuals who have endured extraordinary rendition; Part II

discussed extraordinary rendition in relation to international human rights law; now in Part III

we are going to apply the facts from the testimony from Part I to the numerous international

human rights standards discussed in Part II.

Binyam Mohamed:

Pakistani authorities arrested Binyam Mohamed without any formal charges and took him to

Landi prison, to face the harshest interrogation and torture by an FBI agent.138

All the incidents

that Binyam faced, from arbitrary arrest and detention to being rendered to Morocco and then

Guantnamo, violated U.S obligations according to the international human rights covenants.

137CIA's Assurances On Transferred Suspects Doubted Prisoners Say Countries Break No-Torture Pledges, Dana

Priest, Washington Post, March 17, 2005; Page A01 "They say they are not abusing them, and that satisfies the

legal requirement, but we all know they do."http://www.pulitzer.org/archives/6961

138Supra not 20.
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Article 5 from the UDHR forbids torture and cruel, inhuman or degrading treatment or

punishment.139

The United States by handing Binyam to Morocco where he was tortured, failed

to uphold its obligations to protect against torture and other forms of ill-treatment. Denying

Binyam access to judicial procedures for extradition violates Article 6 from the UDHR, as does

denying him the right to communicate with a lawyer140

. In addition, Article 9 from the UDHR

prohibits arrests without charges or with fake charges141

. Binyams treatment also violatedthe

principle of the right to be presumed innocent from Article 11 of UDHR142.

As mentioned, Binyam was deprived of sleep, beaten with a wooden stick while he was chained,

his life was threatened, and his penis was cut with a razor blade by a Moroccan interrogator. All

these treatments violate the U.S. obligation under the ICCPR143 and ICESCR.144 Article 2 (1) and

Article 7 of ICCPR specifically prohibit torture or cruel treatment as well as inhuman or

degrading treatment or punishment. Also, Article 9 of ICCPR prohibits arbitrary arrest or

detention on the grounds that everyone has the right to liberty and security, and no one should be

deprived of his liberty. Article 10 of ICCPR requires a state party to treat its prisoners with

humanity and with respect for the inherent dignity of the human person. Article 13 provides

the right in the case of expulsion for the captive to have a competent authority review the case.

Hence, Binyams extraordinary rendition violated Article 13 from the ICCPR, because when the

authorities made the decision to render Binyam to Morocco, there was not adequate review and,

139Supra not 68.

140Supra not 69.

141Supra not 71.

142Supra not 73.

143Supra not 77.

144Supra not 98.


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thus, it was not accordance to the law.Article 11 from the ICESCR illustrates that when a state

party operates an extraordinary rendition, it violates Article 11; in addition, it violates a persons

economic, social and cultural rights as well as Article 12, which protects the rights of physical

and mental health.145

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT) prohibits torture as defined in Article 1.146 In addition, Article 3 prohibits a

state party from expelling and returning or extraditing a person when there is a ground for

believing that he will be in danger of being subjected to torture.147 The FBI interrogator

informed Binyam that if he was not going cooperate with them they were going to send him to

Jordan, and added that the Arabs would deal with him.148 Binyam was sent to Morocco where he

faced a nightmare. They cut his penis, which furnished the grounds for apply Article 1, Article 3

and Article 2 (2), which specifically illustrates that there is no justification for torture even in a

state of war or a threat of war.149 Binyam was not wanted by the Moroccan authority for any

offenses.150

He was sent to Morocco solely to be questioned in connection with Al-Qaida.151

145Supra not 98.

146Supra not 103.

147Id.

148Supra not 30.

149Supra not 103.

150Supra not 20.

151Id.


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Moreover, Binyam was deprived of his right to be represented by a lawyer according to Article

36 (1) (b) of The Vienna Convention on Consular Relations (VCCR.)152 Also, Article 5from The

Geneva Convention Relative to the Treatment of Prisoners of War153

states: If there was doubt

that a persons referred to article 4 having committed a belligerent act and was arrested they shall

enjoy the protection of present convention and their status determined by a competent

tribunal.154

In addition, Binyams treatment violated article 13 of (POW) convention.

Khaled El-Masri:

Macedonian authorities arrested El-Masri and held and interrogated him in a hotel room for

twenty-three days without any formal charges. At that point, he was blindfolded, stripped, beaten,

and sodomized, before they flew him to Kabul, Afghanistan, where he was kept in the prison of a

CIA-run facility known as the Salt Pit.155

This treatment violated Articles 5, 6, 9 and 11 of

UDHR, which prohibit torture, cruel-and-inhuman and degrading punishment, as well as arrests

without charges.156

These articles also provide access to judicial procedures, communication

with a lawyer, and the right to be presumed innocent until the government proves otherwise.

Extraordinary rendition also violates157 Article 3 of the UDHR, which protects the right to life,

liberty and the security of a person.158

Extraordinary rendition also violates these rights by

abducting the captive and depriving him of liberty and security. El-Masris abduction also

152Supra not 120.

153Supra not 124.

154 Id155

Supra not 31.

156Supra not 67.

157Supra not 49.

158Supra not 67.


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violates Article 13 of UDHR, which provides that all persons have the right to leave any country

and to return to their home country.159

Article 2(1) from ICCPR160 is the landmark article in this convention for several reasons. First,

this article provides that a State Party is only obligated to respect and ensure the provisions of the

ICCPR for individuals within its territory and subject to its jurisdiction.161

This provision, as

mentioned previously, is particularly important because the counter argument from persons who

conduct extraordinary rendition programs is that they never bring the detainees into their

territory (the U.S. territory in the El-Masri case). That was whatthe Human Rights Committee

statedin its general comment when it said that a state party has obligations toward persons

within it power or effective control.162 Therefore, when the U.S. government used CIA agents to

abduct El-Masri and extradite him to the CIA-run facility known as the Salt Pit in Afghanistan

where he was held in custody, it was required as a states party to this convention to afford him

the rights and protections enumerated in the ICCPR. Consequently, the United States according

to the forgoing article failed to fulfill its obligations according to the ICCPR in the El-Masri

case.Also, Article 9 prohibits arbitrary arrest or detention on the grounds that everyone has the

right to liberty and security, and no one should be deprived of his liberty.163

Article 10 from

ICCPR requires a state party to treat its prisoners with humanity and with respect and dignity of

the human person. El-Masri spent his first 27 days of custody without food; he was stripped,

159Supra not, 74.

160Supra not 79.

161Supra not 77.

162Supra not 64.

163Supra not 77.


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beaten and sodomized.164

Also, El- Masris extraordinary rendition violates Article 13 from

ICCPR because the decision to send him to Kabul was not reached in accordance with the law,

and because it did not provide adequate review. Although his captors later told him that his

abduction was mistaken, they told him that he could not be released without permission from

Washington.165

Article 14 illustrates that extraordinary rendition violates the ICCPRs

requirement that all persons are equal before courts and tribunals.166

Also, when El-Masri was abducted and tortured and experienced inhuman-and-degrading

treatment, the United States violated his economic, social and cultural rights, according to Article

11 from the ICESCR 167 which protects the right of an individual to an adequate standard of

living for him and his family. It also violates Article 12 from ICESCR, which protects the rights

to physical and mental health.

Article 2 from the CAT convention provides that there are no grounds to justify torture under

any circumstances, whether it be a state of war or another public emergency.168

There are no

exceptions however and the prohibition of torture is absolute. The drafters of the convention

noted in theAnnotation on the Provision of the Convention that underseveral human rights

conventions states are allowed to derogate from their obligations in time of war or in other

emergencies, no such derogation is allowed in respect of few fundamental rights of individual,

including the right not to be subjected to torture or inhuman or degrading treatment or

164Supra not 38.

165Id.

166Supra not 77.

167Supra not 81.

168Supra not 103.


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punishment.169

In addition to this, extraordinary rendition violates Article 1 and Article 2. The

El-Masri abduction also violates Article 16, which requires a state party to prevent in any

territory under its jurisdiction any kind of ill treatment provided for and defined in Article 1 from

CAT.

Extraordinary rendition violates the provisions of the Vienna Convention on Consular

Relations.170The language of Article 36 provides that any person taken into custody by

competent authorities of a member state shall without delay be informed of his right to consular

access. When El Masri asked about his rights to be represented by a lawyer and to contact his

embassy and family members, the interrogator told him that there was no lawyer, which violated

his rights according to VCCR171

Hassan Mustafa Osama Nasr:

The Italian court charged twenty-three Americans with the February 2003 kidnapping of Abu

Omar who had been granted political asylum by the Italian government.172 The Abu Omar case

was the first foreign governmental criminal charge filed against U.S agents.173

The case was

incited by European complaints that the Bush administration has crossed legal and ethical lines

169Supra not 92 at 124.

170Supra not 86.

171Supra not 31.

172 PETER KIEFER, Italian Minister Declines to Seek Extradition of C.I.A. Operatives, 1, April 13, 2006, The New YorkTimes. Last visit 4/6/12(9:30 PM) Available at

http://www.nytimes.com/2006/04/13/world/europe/13cia.html?ref=hassanmustafaosamanasr

173Craig Whitlock, Summary of the Abu Omar Kidnapping Case, Washington Post Foreign Service

Tuesday, December 6, 2005;(last visit 4/1/2012-11:00 AM) available athttp://www.expose-the-war-

profiteers.org/archive/media/2005-2/20051206.htm
http://www.nytimes.com/2006/04/13/world/europe/13cia.html?ref=hassanmustafaosamanasrhttp://www.nytimes.com/2006/04/13/world/europe/13cia.html?ref=hassanmustafaosamanasrhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.expose-the-war-profiteers.org/archive/media/2005-2/20051206.htmhttp://www.nytimes.com/2006/04/13/world/europe/13cia.html?ref=hassanmustafaosamanasr


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in dealing with Islamic extremists.174

The Abu Omar case was based on the traditional model of

the extraordinary rendition program; he was abducted from bythe Central Intelligence Agency

(CIA) on February 17, 2003.

Italian-speaking men claiming to be police officers stopped him on the street and after

demanding his identification, sprayed chemicals into his face and forced him into a van. The

abductors then drove him, his mouth taped shut, for about five hours to a U.S. airbase, where he

were beaten, tortured, and repeatedly questioned about his connections to al Qaeda, his

relationship to Albanian radical Islamists, and whether he was involved in recruiting volunteers

to fight against the United States in Iraq.

The agents then Abu Omar was placed on a military aircraft and flew him to another U.S.

military base, later identified as Ramstein Airbase in Germany, where he was placed on a

Gulfstream executive jet and flown to Egypt. Egyptian officials blindfolded him and took him to

a secret service building in Cairo for interrogation.Abu Omar was wanted by the Egyptian

authorities for his involvement in an extremist Islamic network.175

In addition to violating Articles 3, 6, 8, 9 and 11 of the UNHR, the Abu Omar case also violates

Article 5 of the UNHR, which forbids torture and cruel, inhuman or degrading treatment or

punishment.176

As mentioned previously that the United States by handing Abu Omar to the

Egyptian government where he was tortured, failed to uphold its obligation to protect against

torture and other forms of ill-treatment. Article 9 also provides that no one shall be subjected to

174Id.

175Id.

176Supra not 49.


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arbitrary arrest, detention or exile.177

Moreover, The Human Rights Committee in the matter of

Mansour Ahani v. Canada, stated: The Committee emphasizes that, as with the right to life, the

right to be free from torture requires not only that the State party not only refrain from torture but

take steps of due diligence to avoid a threat to an individual of torture from third parties.178

Egypt, which the United States had formerly criticized about its human rights record, had

strangely become its best friend in the Abu Omar case. On February 25, 2004, the U.S.

Department of State released its 2003 report about human rights practices and the situation in

Egypt.179 This report reflected the U.S stand toward the Egyptian attitude about human rights.

Itsstated that Egypts human rights record remained poor.180 The security forces continued to

mistreat and torture prisoners, arbitrarily arrest and detain persons, hold detainees in prolonged

pretrial detention, and occasionally engaged in mass arrests.181

The local police killed, tortured,

and otherwise abused both criminal suspects and other persons.182

The police continued to arrest

and detain homosexuals. The Egyptian government partially restricted freedom of the press and

significantly restricted freedom of assembly and association. It also placed some restrictions on

freedom of religion, and moreover, domestic violence against women remained a problem.183

This report and the Abu Omar abduction or rendition to Egypt by CIA agents through the

177Supra not 54.

178Supra not 69.

179 Country Reports on Human Rights Practices, U.S Department of States, Bureau of Democracy, Human Rights,and Labor 2003. Egypt, February 25, 2004. Last visit 4/1/2012. 12:34 PM. Available at

http://www.state.gov/j/drl/rls/hrrpt/2003/27926.htm

180Id.

181Id.

182Id.

183Id.
http://www.state.gov/j/drl/rls/hrrpt/2003/27926.htmhttp://www.state.gov/j/drl/rls/hrrpt/2003/27926.htmhttp://www.state.gov/j/drl/rls/hrrpt/2003/27926.htm


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extraordinary rendition program displays the contradiction between the U.Ss political tune and

its practice of violating its obligations under international human rights treaties under the table.

Furthermore, Article 3 of the Convention against Torture184 prohibits a state party from

expel[ing] and return[ing] or extradite[ing] a person to another state where there are substantial

grounds for believing that he would be in danger of being subjected to torture.185

This article

opened the door for an argument about how the United States justified its obligation and position

through various reservations and understanding made by the Bush Administration when the

United States ratified the convention in 1994.186The U.S reservation on Article 3 provides: That

the United States understands the phrase, `where there are substantial grounds for believing that

he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to

mean (if it is more likely than not that he would be tortured.) 187

The U.S argument can be read

from the Consideration of Report Submitted by States Parties under Article 19 of the

Convention.188This argument, however, was based on the interpretation of the meaning ofif it

is more likely than not that he would be tortured. In the case of Abu Omar, the United States

184Supra not 86.

185Id.

186The United States reservation and Declaration: "The Government of the United States of America reserves the

right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are

deemed necessary." Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment New York, 10 December 1984, United States of America signature on 18 Apr 1988 ratified on 21 Oct

1994. Last visit4/1/2012 at 2:16 PM Available AThttp://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en

187Id.

188Consideration of Report Submitted by States Parties Under Article 19 of the Convention, Initial reports of

States parties due in 1995, Addendum ,UNITED STATES OF AMERICA, 15 October 1999, CAT/C/28/Add.5

9 February 2000. Available athttp://www.state.gov/documents/organization/100296.pdf
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=enhttp://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=enhttp://www.state.gov/documents/organization/100296.pdfhttp://www.state.gov/documents/organization/100296.pdfhttp://www.state.gov/documents/organization/100296.pdfhttp://www.state.gov/documents/organization/100296.pdfhttp://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en


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had made it very clear that Egypt was in the lowest category with respect to human rights. Thus,

there were substantial grounds to believe that he would be tortured.

III. ConclusionThe U.S governmentviolates international law by operating its extraordinary rendition program.

The international community should use political pressure on the U.S to stop this program and

this practice. The war counter terrorism can no longer be a motive or reason for justifying this

practice. The U.S. can no longer pretend that it is not participating in torture when, as one U.S

official said: We don't kick the [expletive] out of them. We send them to other countries so they

can kick the [expletive] out of them.189

The United Nations and human rights organizations

should clearly condemn the United States extraordinary rendition program and hold it

responsible for torturing victims such as Binyam Mohammad and El-Masri, who are still seeking

justice from the United States for being both abducted and tortured.

The question of whether the international criminal court, through the office of the prosecutor,

should prosecute or have the power to prosecute persons who are involved in the extraordinary

rendition practice also exists. Article 7, entitledCrimes Against Humanity, of the Rome

Statute of the International Criminal Court and the Establishment of the Court provides: For the

purpose of this Statute, crime against humanity means any of the following acts when

committed as part of a widespread or systematic attack directed against any civilian population,

with knowledge of the attack f- Torture.

190

189Supra not 14.

190 Rome Statute of the International Criminal Court, ICC-PIDS-LT-01-002/11_Eng. Available athttp://www.icc-

cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.
http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdfhttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdfhttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdfhttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdfhttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdfhttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf


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This article emphasizes that two elements must first be established before the court can be given

jurisdiction for crimes against humanity. First, the act of torture is committed as part of a

widespread or systematic attack. Second, the act should be directed against any civilian

population.191 For the first element or condition, widespread or systematic, the two terms

widespread or systematic are disjunctive by the conjunction or. This means when an attack

meets the condition of being widespread, it need not also meet the condition of being

systematic.192 The court chamber of the ICC held in the matter ofSITUATION IN DARFUR,

SUDAN IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL BASHIR (OMAR AL

BASHIR) that the term "widespread" refers to the large-scale nature of the attack, as well as to

the number of victims, while the term "systematic" pertains to the organized nature of the acts of

violence and to the improbability of their random occurrence.193 Therefore an attack to deem

the term widespread should affected hundreds of thousands of individuals and took place

across large swathes of the territory.194 Hence, the extraordinary rendition program has not

been committed against a hundred thousand people. Therefore, this term does not give the ICC

jurisdiction over crimes committed through the extraordinary rendition program.

Now, we turn to the term systematic as the ICC Pre-trial Chamber I interpreted it in its

decision SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE

PROSECUTOR v. Germain Katanga and Mathieu Ngudjolo Chui . The term systematic has been

191Id article 7.

192William A. Schabas, Oxford commentaries on international law the international criminal court A Commentary

on the Rome Statute. 147,148. Oxford university.(2010).193

Prosecutor v. Omar Al Bashir, ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of

Arrest against Omar Hassan Ahmad Al Bashir. At 29. ( March,4,2009) available at

http://www.iclklamberg.com/Caselaw/Sudan/Bashir/PTCI/3.pdf

194Supra not 192.
http://www.iclklamberg.com/Caselaw/Sudan/Bashir/PTCI/3.pdfhttp://www.iclklamberg.com/Caselaw/Sudan/Bashir/PTCI/3.pdfhttp://www.iclklamberg.com/Caselaw/Sudan/Bashir/PTCI/3.pdf


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understood as either an organized plan in furtherance of a common policy, which follows a

regular pattern and results in a continuous commission of acts or as patterns of crimes such that

the crimes constitute a non-accidental repetition of similar criminal conduct on a regular

basis, 195

and the court proceeded further stating that the requirement of a systemic attack

required a multiplicity of victims.196

As mentioned previously in this paper, after the Al Qaida attacks of 9/11, President Bush

expanded the rendition program process and extended CIA power to this program. From 2001 to

2005, thousands of individuals were subjected to rendition by transferring them for interrogation

to countries with a record of using torture, such as Jordan, Uzbekistan, Morocco, Syria, and

Egypt, all countries the U.S. had criticized for practicing torture.

Therefore, the court should obviously consider The consequences of the attack upon the

targeted population, the number of victims, the nature of the acts, the possible participation of

officials or authorities or any identifiable patterns of crimes, could be taken into account to

determine whether the attack satisfies either or both requirements of a widespread or

systematic attack vis--vis this civilian population.197

From this it is clear that the

extraordinary rendition program is organized and follows a regular pattern, targeting a sufficient

number of victims as mentioned previously. Thus the term systematic is met; hence, we need to

turn to the second condition from Article 7 that the act should be directed against any civilian

195 Prosecutor v.Germain Katanga and Mathieu Ngudjolo Chui. Decision on the confirmation of charges, at 127,(30September 2008) available athttp://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdf

196Id.

197PROSECUTOR V. DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, International Tribunal for the

Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the

Territory of the Former Yugoslavia, at 36,( 12 June 2002) available at

http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf
http://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdfhttp://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdfhttp://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdfhttp://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdfhttp://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdfhttp://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdfhttp://www.iclklamberg.com/Caselaw/DRC/Katanga/PTC%20I/717.pdf


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population. First, we need to define attack,which means a course of conduct involving the

commission of acts of violence.198 And this attack is not limited to the use of armed force but

also encompasses any mistreatment of civilian population.199

Turning back to the second element that any civilian population must be the primary object of

the attack,200

the drafters of the Rome Statute also left the exact meaning of the term any

civilianpopulation undefined.201 The word any makes it clear that crimes against humanity

can be committed against civilians of the same nationality as the perpetrator or those who are

stateless, as well as those of a different nationality.202 Furthermore, the court in the same matter

proceeded further to define civilian as the first aspect to be considered. The court concluded

that the targeted population must be of a predominantly civilian nature.203 According to the

court, the term civilian covers all non-combatants within the meaning of common Article 3 to

the [Geneva] Conventions.204

The court concluded by defining the term population as follows

The requirement in Article 5 of the Statute that the prohibited acts must be directed

against a civilian population does not mean that the entire population of a given State

or territory must be victimized by these acts in order for the acts to constitute a crimeagainst humanity. Instead the population element is intended to imply crimes of a

collective nature and thus exclude single or isolated acts which, although possiblyconstituting war c