Extraordinary Renditions and Human Rights: Short Observations on the French Case

Abstract

The collusion of many European states in the CIA’s notorious practice of extraordinary rendition during the Bush Administration is by now well-documented. Indeed, it was in the context of concerns about the potential involvement of the United Kingdom in the practice (one of the USA’s closest and most powerful allies on the continent) that the European Court of Human Rights (ECtHR) first defined the phenomenon of extraordinary rendition as: ‘… the extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment.’ This definition connects two important components, namely the extra-judicial nature of the transfer (i.e., involving a covert operation, including resort to ‘secret facilities’) and the use of torture. Those European States that connived with the practice of extraordinary rendition flights were close allies of the USA and/or had the facilities (i.e., NATO bases) which accommodated flight transfers. Not all allies were involved, however, and the notable absence of France from the list of high-profile, complicitous offending States is striking. Was France not involved at all in the practice of extraordinary rendition flights? Were the French authorities involved but the collaboration with the CIA was even more covert and investigations not pursued? The aim of this short article is not to provide definitive answers to these questions from an empirical point of view. Rather the object of this piece is to make observations about the French case in two related directions. First, the article seeks to describe and contextualize the wider role of France in counter-terrorism cooperation in the aftermath of 9/11, noting in particular the collaboration of the French intelligence services with their American counterparts (including as regards allegations of collusion in torture). Secondly, it outlines French law on State liability and demonstrates how, despite the latter’s broad scope, it still allows for limits where ‘secret defense’ and ‘actes de gouvernement’ are involved.