Extraordinary rendition and the European Court of Human Rights

Abstract

Abstract The chapter starts by defining extraordinary rendition and the elements which distinguish it from other types of transfer of detainees under international law. Second, it delves into Strasbourg case law on this matter, with special attention provided to the El Masri and Al Nashiri cases. A position of exceptionality of Strasbourg emerges from these comparisons: as a bold institutional actor asserting the need to protect human rights and the rule of law despite governments' appeals to state secrets and national security exceptions. Third, the chapter tempers this praise by outlining four areas which remain problematic in the European Court's extraordinary rendition jurisprudence: the attribution of responsibility for the transfers of detainees; the right to the truth; rendition as a case of enforced disappearance; and the reliance on diplomatic assurances when analysing the non-refoulement principle. The chapter concludes by cautioning against exaggerated optimism regarding extraordinary rendition cases in Strasbourg and by looking to the future at cases still pending before the European Court of Human Rights (ECtHR) and other international developments likely to impact its jurisprudence in this area.