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Philippe Sands QC, UCL and Matrix Chambers

Erskine Childers Memorial lecture 2006

Chairman, Ladies and Gentlemen, I am honoured by this invitation from Action for UN Renewal to deliver this lecture. My subject is a broad one, and I intend  to address it by focusing in on one particular aspect in which the rules established by the United Nations have come to play an important role.

The concept of ‘extraordinary rendition’ does not exist as a term of art in international law. You will not find it referred to in any treaty or international instrument of which I am aware. Although not limited to the period since 9/11 (instances date back to 1998 at least), it has emerged into public prominence as a result of actions taken to respond to the threat of global terrorism. It has come to be understood as referring to the practice of forcibly transporting a person – usually alleged to be involved in terrorist activity – from one country to another country without relying on the normal legal processes (extradition, deportation etc) and for the purposes of subjecting them to interrogation and other forms of treatment that include torture or cruel and degrading treatment.

Both elements – the forcible transportation outside of due process (characterised by Lord Steyn as “kidnapping” in his Attlee Foundation lecture last month), and the invasive forms of interrogation – raise the most serious issues under international law. As to the first element, it is impossible to see how the removal of a person from the territory of a state without due process – access to a tribunal – could not violate fundamental human rights reflected in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as customary law and regional human rights agreements. If such removal takes place in times of armed conflict it will be strictly limited by Article 49 of the Fourth Geneva Convention, a provision that was adopted to prevent Nazi style deportations from countries it had occupied. As to the second element – invasive interrogation – the 1984 Convention on the Prohibition of Torture outlaws torture in all circumstances. The prohibition is reflected in customary international law and reflects jus cogens – a peremptory and intransgressible norm – as the House of Lords made clear in 1999, in Pinochet No. 3. 

Where both elements are present I have no doubt that the practice will be wholly inconsistent with the rules of international law that have been but in place since the Second World War. Every state – all states – have an obligation to prevent such a practice from taking place. I would go further: the association with torture makes the practice of extraordinary rendition an international crime. The concept of the international crime, in its modern sense, emerged with the Nuremburg Statute. It has gained prominence since the 1990s, with the creation of the Yugoslav and Rwanda war crimes tribunals, the International Criminal Court, the indictment of Senator Pinochet and, more recently, the indictment and transfer to Sierra Leone of Charles Taylor, former President of Liberia. The concept of international crime means that international legal obligations are no longer applicable only to states: an international crime gives rise to individual criminal responsibility, with all that implies for worldwide investigation and, as appropriate, prosecution. In the present context it means that all states parties to the 1984 Torture Convention – that includes the United Kingdom and the United States as well as over 140 other states – have the obligation to investigate and, if appropriate, prosecute any person who is alleged to have committed torture within the meaning of the Convention and is present within their jurisdiction. But the 1984 Convention goes further: its Article 4 criminalises participation or complicity in torture.  The question therefore arises:  how complicit must an individual be for international criminal responsibility to arise, and for the principles of the Torture Convention to cut in?

That is an important question, but it is also a delicate question as allegations of extraordinary rendition are made. Delicate because at this time the facts are yet to be fully established so that firm conclusions cannot yet be drawn. Nevertheless, the alleged facts appear reasonably clear to see, and in some cases even notorious. In one case dating back to September 2002 – Maher Arar – a Canadian national in transit through John F Kennedy airport in New York was arrested, allegedly with the involvement of the Canadian authorities, and ended up being forcibly transported to Syria where, on his account, he was kept in solitary confinement and tortured. Eventually he was released, and he has not been charged with any criminal offence. A major public inquiry is now underway in Canada to establish the facts and the circumstances of Canadian involvement, in which the US has declined to participate. US officials speaking on conditions of anonymity have said that the Arar case fits the profile of extraordinary rendition.

Closer to home, Moazzam Begg, a British national from Birmingham, has described in his book Enemy Combatant how he was arrested at a house in Pakistan where he was living with his wife and children, transported to the US controlled Bagram air base in Afghanistan (where he remained for about a year), and then transported on to Guantanamo where he remained for about two more years. Accused of being an unlawful combatant in the so-called ‘war on terror’ he was never charged with any criminal offences. He was released shortly before the May 2005 British general election. I do not know what he did or did not do, and it is not yet established whether the interrogation and other treatment to which he was subjected went beyond cruel, inhuman and degrading treatment and amounted to torture. But it appears that he may have been subject to ‘extraordinary rendition’. What I found striking about Mr. Begg’s account was the early and extensive involvement of the British intelligence services in his questioning, in Pakistan, in Bagram and in Guantanamo. At the every least that raises the questions of whether any person associated with the British government was in any way involved in his kidnapping and removal to Bagram and Guantanamo and, if so, whether that person knew, or should have known, that it was likely that he would be subject to the treatment he alleges.  If the answers to those questions are in the affirmative then an issue of international criminal responsibility may arise.

Beyond these two individual cases – in which the United States is plainly involved in both, but in which the UK may be involved only in one – there are numerous other allegations that could imply the involvement of persons associated with the British government. These include the allegations that CIA rendition flights may have passed through UK airspace and, in some cases, landed at UK airports. There have also been other British nationals detained at Guantanamo, and there remain a number of British residents who are incarcerated at Guantanamo. There is also the possibility that detainees have been extraordinarily rendered from Afghanistan and from Iraq. According to human rights NGOs many detainees held by the United States are presently unaccounted for.  I understand that Britain may no longer permit persons apprehended by British forces in Afghanistan or Iraq to be handed over to the US, because of the fear of ill-treatment. But the possibility cannot be excluded that prior to any such policy other detainees were handed over and may have been taken outside Afghanistan or Iraq for questioning or detention. What is the potential criminal responsibility of an individual associated with the policy and practise of extraordinary rendition, including torture?

* *

That is a question I had occasion to address rather directly last October, in a debate I was involved in with Professor John Yoo at the World Affairs Council of Northern California, in San Francisco. The event was part of a speaking tour that was organised in the United States for my book Lawless World, at about the time that Special Prosecutor Patrick Fitzgerald announced his indictment of Vice-President Dick Cheney’s Chief of Staff, Lewis Libby. It was also the time that Lawrence Wilkerson, Colin Powell’s respected former Chief of Staff, broke his silence to brand the Vice President a war criminal. Mr Libby was replaced by David Addington, a lawyer working with Mr. Cheney’s office who was known to have been closely involved in the legal policies adopted immediately after 9/11, including the decision to create a detention facility at Guantanamo, to treat Al Qaeda and Taleban detainees as unlawful combatants unprotected by the Geneva Conventions, and to define torture in such a way as to remove the constraints that the established international legal definition impose on the treatment and questioning of detainees. I had mentioned to the media that David Addington and others who were said to be closely associated with the crafting of the Bush Administration’s policy on the interrogation of detainees would do well to reflect on the fate of Augusto Pinochet before embarking on their own international travels.

As you know, the Chilean Senator and former head of State was unexpectedly arrested during a visit to London in 16 October 1998, at the request of a Spanish judge who sought his extradition on various charges of international criminality, including torture. The House of Lords ruled that the 1984 Convention prohibiting torture removed any right he might have to claim immunity from the English courts, and gave a green light to the continuation of extradition proceedings. My peripheral involvement in that case – as counsel for one of the interveners – allowed me to witness the case first hand. It also gave me the opportunity to chat with Senator Pinochet’s advisers, next to whom I happened to sit during the proceedings. One conversation in particular has remained vividly at the forefront of my mind.  “It never occurred to us that the torture convention would be used to detain the Senator”, I was told by the lawyer who had advised President Pinochet on human rights from the late 1970s and through the 1980s, and who had been involved in the decision by Pinochet and Chile to ratify the Torture Convention in 1988. 

I mentioned this in the debate with John Yoo. Professor Yoo is now back at Berkeley, following a stint at the US Department of Justice, where he played a leading role in authoring and contributing to the legal advice that rode roughshod over the Torture Convention. He was directly involved, I understand, in the torture memo that unilaterally re-defined torture so as to allow more intrusive interrogations. His advice was plainly inconsistent with the requirements of international law. It appears to have opened a door into the forbidden world of torture, and perhaps contributed directly to the “war on terror’s” aggressive interrogation techniques and, possibly, the abuses at Abu Ghraib, Bagram and Guantanamo. Professor Yoo was well aware of the Torture Convention. However, when I raised the Pinochet precedent in our debate he seemed taken aback at the suggestion that he may be covered by its Article 4 prohibitions on complicity. Plainly he did not want to engage with a discussion in that direction.      

It seems clear that he had proceeded on the basis that international law was for others. He appears not to have turned his mind to the possibility that, as a legal adviser associated with a policy that permitted torture contrary to international legal obligations, he could be subject to international investigation and even prosecution. How might this happen?

The Torture Convention sets up an elaborate enforcement mechanism. The US, the UK and the 140 plus other countries that have joined the convention agree to take certain actions if any person who has committed torture anywhere in the world is found on their territory. Specifically, such a person is to be investigated, and if the facts warrant must either be prosecuted for the crime of torture or extradited to another country that will prosecute. The Convention aims to avoid impunity for this most serious of international crimes, by removing the possibility that the torturer will be able to find any safe haven. This was the basis for Senator Pinochet’s arrest in Britain. The potential problem for Professor Yoo and others who may have been associated with torture is to be found in Article 4 of the convention. This criminalizes not only the act of torture itself but also other acts, including “an act by any person which constitutes complicity or participation in torture”.

Can the mere drafting of legal advice that authorizes a policy of torture amount to complicity in torture? Any case will turn on its particular facts. A prosecutor would have to establish that there was a direct causal connection between the legal advice and the carrying out of particular acts of torture, or perhaps a clear relationship between the legal advice and the consequential governmental policy that permitted torture. On some approaches it could even be sufficient if the policy allowed a blind eye to be turned to the risk of torture (or to information that a state was allowing its territory to be used in over flight or for refuelling of aircraft that may be engaged in taking detainees to or from a place where the risk of torture exists).

At present the evidence on extraordinary rendition or the involvement of any particular individual is not yet established, and it would be inappropriate to prejudge the outcome of any investigations that may be carried out in the future. Nevertheless, those associated with the legal advices and their surrounding policies do need to be aware that there is case-law from Nuremburg that confirms that lawyers and policy-makers can be criminally liable for the advices they have given and the decisions they have taken. In the case of United States v Josef Altstotter and others some of the accused were lawyers who had been involved in the enactment and enforcement of laws that allowed acts to occur that were crimes against humanity. They were convicted in December 1947 by a US military tribunal in Germany, on the grounds that they had entered into a plan or scheme that had contributed to acts that were international crimes. “Beneath the cloak of the lawyer lies the dagger of the assassin”, said the military tribunal. The precedent is an important one, that has the potential to draw in the architects of a policy that allows extraordinary rendition or support for extraordinary rendition.

One draft legal memorandum has come to light. Before taking up a position at Harvard Law School Jack Goldsmith was Assistant Attorney General in the Office of Legal Counsel in the US Department of Justice. In March 2004 he authored a draft legal opinion on Article 49 of the Fourth Geneva Convention, in relation to the situation in Iraq. Article 49 contains clear and unambiguous language: “Individual … transfers … of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive”. Despite that language Professor Goldsmith somehow managed to reach the opposite conclusion: his tightly reasoned and lengthy draft opinion concludes that Article 49 allows overseas transfer of certain persons for a brief but not indefinite period to facilitate interrogation. That conclusion is undoubtedly wrong. It ignores the plain meaning of Article 49 and the negotiating history of that provision. The ICRC is the guardian of the Geneva Conventions, and its’ commentary confirms that there are no circumstances in which transfers outside the territory of occupation may be permitted, for interrogation.

It is not known whether Mr. Goldsmith’s draft opinion was ever finalised, or formally adopted, or acted upon. It is abundantly clear to me, however, that a violation of Article 49 would constitute a grave breach of the Geneva Conventions. It is equally clear to me that the drafter of a legal opinion – even a draft legal opinion – that was directly connected to any transfer that took place could bring the lawyer responsible within the realms of criminality. If any detainee in Iraq was transferred outside of Iraq for the purposes of interrogation for a brief but not indefinite period then criminal liability can arise.

The point I make is not that Professors Yoo or Goldsmith are international criminals. It is merely that the existence of certain facts, if proved, could have the consequence of bringing them within the realm of international criminality, including in respect of acts of extraordinary rendition.  Such is the implication of the crime of complicity in international law. Such are the consequences of the changes in international law that have occurred since the Second World War. The emergence of the criminal law should serve as a powerful deterrent for those asked to contribute to the design of policies that may permit extraordinary rendition.

* *

What might all this mean in Britain?  The facts are, of course very different. Unlike the United States, as far as we know there has been no governmental policy of general application that is premised on the transfer of individuals under British control from one country to another country, whether for the purposes of interrogation or otherwise. It seems that the most that could emerge is British support for the implementation by the US of its policies. Such support might be active, or it might be passive, including turning a blind eye. What would be the implications if facts were to emerge to establish support in any material sense?

At this point we enter the realms of speculation. Nevertheless, we do know that the Prime Minister has a somewhat semi-detached relationship to the rule of law. He was willing to bend the rules in respect of the use of force in Iraq, and to manipulate the presentation of the legal advice he had been given. This past week he has not hesitated to attack the judgment of an English court (in the case of the hijacked Afghan plane) in a manner and with a tone that raises serious constitutional concerns.

The Prime Minister’s discontent with the law and the judges, and his less than fulsome commitment to international human rights standards, dates back to well before 9/11. One example suffices to illustrate, the case of Youseff v The Home Office. Although Mr Justice Field’s judgment was given in July 2004, all the material facts date back to the spring and summer of 1999. Even then the Prime Minister was looking to find ways to get around the rules of international human rights law which limited the circumstances in which Britain could return Hani Youssef and three other Egyptians to their homeland. Youseff was a lawyer who represented Muslim groups and activists in cases brought by and against the Egyptian government. The then Home Secretary, Mr Straw, wanted to deny Youssef’s application for asylum on the grounds that he was a senior member of Egyptian Islamic Jihad, which had mounted terrorist acts and signed a document declaring that the killing of Americans and allies was the duty of every Muslim. The difficulty was the fear that Youseff would be persecuted if he returned to Egypt, coupled with the government’s policy that no one should be removed or deported to a country where there was a “real risk” that the returnee or deportee would be treated in a manner that breached Article 3 of the ECHR (“No one should be subjected to torture or to inhuman or degrading treatment or punishment”). You see here the link with extraordinary rendition: they are different sides of the same coin. The way around the problem would be to obtain written assurances from the Egyptian government for the safety and well-being of Youseff. The Foreign Office sought assurances on nine grounds, including no ill-treatment, access to an independent and impartial civilian court and various due process rights, no death penalty, and access to British Government officials during any imprisonment or, failing that, telephone access to a UK based lawyer. Mr Blair took a very direct interest. On 1 April 1999 the Private Secretary at the Home Office wrote to his Private Secretary at 10 Downing Street, providing information on the initial reaction of the Egyptian government to the assurances requested. The Prime Minister read the letter. He wrote across the top of it: “Get them back”. And in respect of the list of assurances sought he wrote: “This is a bit much. Why do we need all these things?”

He need not have worried, since the Egyptian Government declined to give the assurances, on the grounds that they amounted to an unwarranted interference in the affairs of a sovereign state. Egypt was willing to offer some assurances, but not all. On 24 May 1999 the Principal Private Secretary at the FCO wrote to the Prime Minister’s Private Secretary: Egypt had been offered some flexibility, but there was no scope for any more. In response to the FCO’s view that the Egyptian assurances were inadequate the Prime Minister wrote across the top of this letter: “This isn’t good enough. I don’t believe we shld (sic) be doing this. Speak to me.” The contempt for human rights concerns is clear. By 3 June 1999 the Home Secretary had concluded that the limited Egyptian assurances were insufficient, that the men would face an Article 3 risk if they were returned, and that therefore they should be released and not returned. The Prime Minister was not well pleased. On 14 June 1999 his Private Secretary responded as follows, providing an interesting insight into the Prime Minister’s respect for the law, the extent of his commitment to the rules, and the use of courts as part of a political game:

“[T]he Prime Minister is not content simply to accept that we have no option but to release the four individuals. He believes that we should use whatever assurances the Egyptians are willing to offer, to build a case to initiate the deportation procedure and to take our chance in the courts. If the courts rule that the assurances we have are inadequate, then at least it would be the courts, not the government, who would be responsible for releasing the four from detention. The Prime Minister’s view is that we should now revert to the Egyptians to seek just one assurance, namely that the four individuals, if deported to Egypt, would not be subjected to torture. Given that torture is banned under Egyptian law, it should not be difficult for the Egyptians to give such an undertaking”.   

Plainly the Prime Minister was not greatly influenced by the reports of the US State Department and Amnesty International as to Egypt’s propensity to torture deportees such as Youssef, or even his Home Secretary’s concerns. In the end the Home Office accepted the FCO's view that Egypt would not give even the single torture assurance, in any meaningful way. Mr Youssef was released, and was successful in his application that he had been unlawfully detained. No record of the Prime Minister’s reaction has been made public.

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