Human Rights: Rendition - Literature review Example

Human Rights Rendition is an act of surrender or transfer of fugitives to another country. In order to be legal, rendition must comply with the provisions of domestic and international law. In legal renditions, the transferred person must be prosecuted in the country to which he is extradited. In the absence of a judicial authority’s permission, or if the extradited person is tortured after the transfer, the rendition becomes illegal (Verkaik, 8 June 2006, P 33). A number of human rights instruments are either explicitly or implicitly concerned with extraordinary rendition, and require State parties to adopt effective measures to deal with it. The Preamble of the Universal Declaration instructs countries to strive to secure universal recognition and observance of the rights specified by it. It requires member nations to ensure that every person is provided with the right to recognition, in every place, before the law. In addition, nations have to ensure that every individual is provided with an appropriate legal mechanism to contest any imposition of extraordinary rendition upon them. The International Covenant on Civil and Political Rights or the ICCPR, also provides a similar non – derogable right to universal recognition as a person before the law. Therefore, any country that fails to assert jurisdiction over a person subjected to extraordinary rendition, infringes the provisions of Universal Declaration (Weissbrodt & Bergquist, 2006). International law has proscribed torture without exception; and deportation to countries where they are at risk of being tortured. Furthermore, the United Nations Special Rapporteur on Torture, the Council of Europe Commissioner on Human Rights, and the UN Independent Expert on human rights and counter – terrorism have warned that the assurances given by governments has weakened the global ban on torture. For instance, persons extradited to Algeria and Morocco on charges of terrorism, are subjected to torture, despite claims to the contrary by their respective governments (Diplomatic Assurances Allowing Torture , 2005). Under the Convention against Torture, every country is obliged to ensure that the process of investigation is carried out impartially by its competent authorities. In practice, it is implausible to expect governments that contribute to extraordinary rendition to adopt this provision. Consequently, other protections established by the Convention against Torture require member States to extend the scope of investigation with regard to torture (Weissbrodt & Bergquist, 2006). The drafters of the Convention against Torture refused to allow a State Party to wait for extradition requests. The drafters of the Convention were of the opinion that there is a possibility of declining jurisdiction by some State Parties who can effectively prosecute torturers in their territorial jurisdiction (Scharf, 2001, Pp 368-69). The Convention mandates that a State Party must detain and prosecute any suspected torturer on its territory. After conducting an immediate preliminary inquiry into the facts of the case, the State Party should prosecute the torture, provided his home country is disinclined to have him extradited (Weissbrodt & Bergquist, 2006). The Geneva Conventions require High Contracting Parties to criminalize serious infringements. Moreover, the High Contracting Parties have to locate individuals who had allegedly committed such acts. They also have to search for persons who had ordered the commission of such grave breaches. After having isolated such persons, these actors should prosecute them in their own courts, irrespective of their nationality (Weissbrodt & Bergquist, 2006). Article 1 insists upon State Parties to respect and ensure compliance with the provisions of the Geneva Convention, under all circumstances. Moreover, the High Contracting Parties are duty bound to search for persons who breached these provisions, and to punish them. Extraordinary rendition constitutes a grave breach of Convention provisions: because it entails torture and inhuman treatment; and transfer, which infringes the provisions of Article 49 of the Convention. Furthermore, failure by a nation to punish officials who had committed gross violations of the Convention would also be in breach of the provisions of the Convention (Weissbrodt & Bergquist, 2006). This stipulation is necessary, because the remedies made available by political branches are generally futile and insufficient. Some of the reasons for this dismal situation are described in the sequel. On several occasions, superior officers of the government had themselves been involved in grave breaches. Moreover, a country that is host to such violations would be disinclined to take initiatives that would question the legality of its own practices. As such, the country to which such a detained person belongs would be reluctant to intervene; because, extraordinary rendition is commonly employed to arrest, detain and interrogate suspected terrorists (Weissbrodt & Bergquist, 2006). Article 3 of the Convention enjoins certain obligation on countries; however, these are not absolute and it is sufficient if a nation adopts reasonable measures to prevent maltreatment of individuals (A v United Kingdom, 1998). In Z v. United Kingdom the ECHR reiterated that a State must take reasonable steps to prevent inhuman treatment (Z v. United Kingdom). It is important to note that whilst negative obligations are absolute in nature, positive obligations are not absolute (Limbuela v. Secretary of State for the Home Department). In Soering v. United Kingdom, it was certain the suspect would be tortured in the receiving state, on being extradited (Soering v. United Kingdom). This constituted a negative obligation to protect the extradited person. It has become common for governments to provide false diplomatic assurances that there will be no torture or inhuman treatment in their country. The worst culprits in this regard are Syria, Egypt and Uzbekistan. The transfer of suspected terrorists to Yemen, Morocco, Tunisia, Algeria, Russia, and Turkey involves very severe torture, especially for Islamists (Diplomatic Assurances Allowing Torture , 2005). The US authorities had requested their UK counterparts on four occasions to permit prisoner flights through the latter are territory. The UK had acceded to just two of these requests. In this context, the US had declared that although it had transported suspected terrorists, it had not deported them to countries where they could be subjected to torture (Verkaik, 8 June 2006, P 33). However, what proved to be extremely distressing was that Tony Blair and his Foreign Secretary Jack Straw had categorically stated that no such incident had transpired. This blatant lie by the erstwhile British Prime Minister, makes any statement or assurance emanating from the UK, potentially suspect (UK apology over rendition flights , 2008). Rendition is a process that involves the surrender of suspected criminals and terrorists; which is employed by many countries, in order to ensure national security. Secret services agencies employ unauthorised and clandestine means for this purpose. However, suspected terrorists should not be subjected torture, to extract information, because such information would be unreliable and inadmissible in a court of law. It is imperative to adhere to the rule of law, which constitutes the keystone of any free society. In addition, short term gains should never prompt a nation to ignore the rule of law. List of References A v United Kingdom, 100/1997/884/1096 (European Court of Human Rights September 23, 1998). Diplomatic Assurances Allowing Torture . (2005, April 14). Retrieved April 4, 2009, from http://www.hrw.org/en/news/2005/04/14/diplomatic-assurances-allowing-torture Limbuela v. Secretary of State for the Home Department, [2005] UKHL 66, [2006] 1 AC 396. Scharf, M. P. (2001, Pp 368-69). Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States. New England Law Review . Soering v. United Kingdom, Application no. 14038/88. UK apology over rendition flights . (2008, February 21). Retrieved April 4, 2009, from BBC NEWS: http://news.bbc.co.uk/1/hi/uk_politics/7256587.stm Verkaik, R. (8 June 2006, P 33). The big question: What is extraordinary rendition, and what is Britains role in it? The Independent (London) . Weissbrodt, D., & Bergquist, A. (2006). Extraordinary Rendition: A Human Rights Analysis. Retrieved April 2, 2009, from http://www.law.harvard.edu/students/orgs/hrj/iss19/weissbrodt.shtml Z v. United Kingdom, Application no. 29392/95 (European Court of Human Rights). Read More