Extraordinary Rendition Research Articles

The ‘individualization of war’: discussion and critique of a discourse

ABSTRACT ‘Individualisation of war’ is an expression used by several scholars to conceptualise in a holistic way contemporary forms of political violence as targeted killings or extraordinary renditions. Yet, the expression does not simply mirror the practices of the real world, but it also constitutes and is constituted by the practices, thus it can be framed as a discourse. This article questions how the discourse on the ‘individualisation of war’ has emerged, in what context it has gained institutional legitimacy, and what is the meaning that the discourse produces and re-produces. To answer such questions, the article in a first part outlines the intellectual context in which the ‘individualisation of war’ has emerged and how it has been articulated in specific knowledge domains. While in a second part, the article analyzes the discourse’s meaning(s) by questioning separately the two conceptual components: ‘individualisation’ and ‘war’. Eventually, the article claims that ‘individualisation of war’, despite the insightful interpretative tools it offers to decipher the role of the individual in the realm of in contemporary war, serves more a rhetorical and legitimising role than analytical functions.

Neo-Biafra Separatist Agitations, State Repression and Insecurity in South-East, Nigeria.

The resurgence of Biafra separatism in Nigeria is largely a reaction to a perceived ethno-national superordinacy as well as the compromised state-building capacity of the Nigerian ruling groups. The tendency to attribute the upswing in ethnic nationalism, separatist agitations and the ascendancy of sectarian cleavages in Nigeria to the widening of the democratic space since 1999 is flawed. Whilst every part of Nigeria is bedevilled with one security challenge or another, the most visible existential threats to lives and livelihoods in Nigeria's South-East are coordinated attacks on state facilities by unknown gunmen and the brutal military response of the Nigerian state to the neo-Biafra separatist uprisings. Although the reinvention of Biafra separatism has received substantial scholarly attention, available studies have neglected how the persistence of state repression has lubricated the wheels of the neo-Biafra separatist movement in Nigeria. This study argues that the repressive disposition of the Nigerian state towards Biafra separatism is at the base of the current mutation of the Indigenous People of Biafra's strategy from the non-violent option to the armed movement. This article relies mainly on the analysis of secondary data on Biafra separatism and state repression in Nigeria. Drawing from the basic assumptions of the theory of state repression, this study concludes that the wanton deployment of the kinetic approach involving harassment, proscription, arrests, extraordinary rendition, torture and mass killing of pro-Biafra agitators tends to stimulate insecurity in the South-East.

States of exception as paradigms of government: emergency and criminal justice in Jamaica?

ABSTRACT Emergencies/exceptions are presumed to be disruptive events which are inherently dangerous to the normal workings of a nation-state. Declarations of emergency by governments of all types around the world to deal with a variety of crises have prompted Italian political philosopher Giorgio Agamben to characterize them as “the dominant paradigm of government” (2005. State of Exception. Chicago, IL: University of Chicago Press). This paper explores the Jamaican government’s penchant for using emergency powers to curb high homicide rates. During 2017–2020, Jamaica has declared and operated several States of Emergencies (SOEs) and Zones of Special Operations (ZOSOs) to address what are usually considered ordinary criminal justice matters. In this paper, I argue that the resulting anomalies, such as arbitrary plus extended detentions and internal extraordinary renditions, have placed Jamaica in a quasi-permanent “state of exception” in which the constitutional rights of some citizens have been compromised in the name of state security. This paper contributes to the growing literature on how blurry the lines between norm and emergency/exception have become across different global jurisdictions.

The importance of the “right to the truth” in El-Masri case: Lessons learned from the extraordinary rendition

Introduction: In December 2012 the European Court of Human Rights (the Court or ECtHR) delivered the landmark decision in the case of El-Masri v. F.Y.R Macedonia (‘Macedonia’) ruling that CIA extraordinary rendition program amounts to torture. Macedonia was held responsible for torture and detention of El-Masri; lack of conducting effective interrogation; lack of request for diplomatic assurances from CIA agents and interference with the right to private and family life. Some of the judges referred to the right of the truth as the right of El-Masri to be familiar with the facts why he was held incommunicado and being subject of the CIA extraordinary rendition program. Objective: By using the El-Masri v. Macedonia case, this paper aims to map the necessity for protection of human rights even when national security and war against terrorism are at stake. The right to the truth should be of utmost importance besides proving torture –it is the way for the victim to accomplish moral victory and to gather all facts of the case. Method: The relevant texts were gathered from the HUDOC database, Cambridge University Press, Google Scholar, while interviews were conducted with Margarita Tsatsa Nikolovska – former judge in the European Court of Human Rights and Aleksandar Bozinovski – the journalist who discovered to the public the extraordinary rendition of Khaled El-Masri. Results/Discussion: the ruling in the El-Masri case was the first time when an international court held that the CIA’s extraordinary rendition program amounts to torture. However, the Court did not argue about the culpability of CIA agents nor the explanations how Macedonia can be held accountable for torture committed in a foreign country by foreign agents just because of lack of diplomatic assurances and allowed extraordinary rendition at the Skopje Airport.

Consequences of the Lack of Criminalization of Enforced Disappearance at the Domestic Level

Abstract The obligation to codify enforced disappearance as an autonomous offence under domestic criminal legislation is well established in international law and jurisprudence, and it responds to the need to adequately comprehend and address the extraordinarily complex nature of this crime. Yet very few states abide by such an obligation. When called upon to explain this failure, those lacking a separate offence in their domestic legislation — including Italy — argue that other offences (e.g. kidnapping, abduction, torture, or illegal deprivation of liberty) are adequate. The article analyses the Italian experience with investigations and proceedings conducted in the absence of an autonomous offence of enforced disappearance. They concern enforced disappearances perpetrated in the context of the Operación Cóndor in Latin America where the victims were Italian nationals, requests for extradition concerning cases that amount to enforced disappearance, and enforced disappearances committed in the realm of operations of ‘extraordinary renditions’. The consequences of the lack of criminalization of enforced disappearance include the undue fragmentation of responsibility when pressing charges; challenges concerning the evidentiary criteria, especially with regard to the mental element; the application of tight statutes of limitation; and the failure to adequately implement the aut dedere aut judicare principle, ultimately resulting in an increased rate of impunity.

The extraordinary rendition network: illiberal security complexes and global governance

ABSTRACT The Rendition, Detention, and Interrogation programme was implemented by the G.W. Bush Administration in order to covertly capture and move “suspected terrorists” around the globe, and ultimately detain and torture them in secret facilities. Using network analysis of rendition flight data, we measure the centrality of democratic and nondemocratic states within the network. The data indicate first that the network was designed to avoid domestic and international accountability, skirting global governance systems. Second, we find that democratic states and non-democratic states participated in the network and both had touch-points with flights carrying detainees, though democratic states more often served in an obfuscation role than in flight legs involving a rendered individual. We argue that the rendition network is an example of what we term an illiberal security complex: a network that is structured to operate covertly and informally in order to violate international norms and rules without detection.

Investigating across borders: the right to the truth in an European context

ABSTRACT Victims (direct and indirect) of gross human rights violations have implicit recognition in terms of a duty of effective investigation and other focused principles. In the context of migration and extraordinary rendition, this duty gives rise to a particular problem of investigation in a multi-national situation, where, arguably, an effective investigation requires elements of transnational cooperation. Recent decisions by the European Court of Human Rights, in particular Güzelyurtlu v Turkey and Cyprus, have developed legal principles relevant to this situation. This article probes how the Court’s jurisprudence reflects and accommodates the need for those across-border investigations in order to meet the criteria of an effective investigation and, with it, the right to the truth. It does so with additional reference to international legal norms that attach to enforced disappearance, as the right to the truth has found most fervent expression in this human rights context thereby serving to further illustrate the two foci of this contribution: transnational fact-finding in relation to migration and extraordinary renditions.

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

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.

Extraordinary Renditions: Nigeria Finally Joins the Elite League

Extraordinary Renditions: Nigeria Finally Joins the Elite League

Brief of Professor Laura K. Donohue as Amicus Curiae in Support of Neither Party, FBI v. Fazaga, No. 20-828

Amicus submits this brief in support of neither party to provide the Court with background on the origins and evolution of the state-secrets privilege. The English and American cases decided before United States v. Reynolds, 345 U.S. 1 (1953), as well as the decisions before and after the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA), produce several observations that may help the Court to resolve this case. First, both Reynolds and earlier English and American case law treat state secrets as an evidentiary privilege rather than a substantive rule of decision. As with other privileges, upholding an assertion of state secrets means that the case should continue, if possible, without the privileged information. Totten v. United States, 92 U.S. 105 (1876), in contrast, states a different rule of narrow applicability resting on the secrecy inherent in certain government contracts, as the Court made clear in General Dynamics Corp. v. United States, 563 U.S. 478, 485, 490 (2011), and Tenet v. Doe, 544 U.S. 1, 9-10 (2005). Second, although the judiciary affords the executive branch deference in asserting state secrets, courts consistently acknowledge their own, critical role in ensuring that those invocations of privilege are justified. Third, courts strive to find ways to avoid dismissing cases whenever possible. Often that means using in camera procedures to evaluate a defense, as in then-Judge Scalia’s opinion in Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984). Fourth, although dismissal based on the state-secrets evidentiary privilege finds no support in early English or U.S. cases before FISA (outside of the inapposite Totten line), a few post-FISA decisions have dismissed lawsuits regardless of their merits on the grounds that further litigation presents too great a risk of exposing state secrets. Those decisions underscore how rare that severe result should be. And they are confined primarily to circumstances in which state secrets are central, such as extraordinary rendition or defamation, where the truth or falsity of statements

Nicholas Rengger and two wars

Nicholas Rengger spent much of his career thinking and writing on the phenomenon of war. Eschewing any optimistic view that war could be abolished he also challenged the application of Just War theory to explain and justify the use of military force after the events of 9/11. His intellectual interactions with Jean Bethke Elshtain highlighted his growing unease with those in International Relations who sought to render palatable the use of torture, extraordinary rendition and technological ‘fixes’ in the pursuit of Western interests.

The Political Costs of Abusing Human Rights: International Cooperation in Extraordinary Rendition

From 2001 to 2005, over a quarter of all countries in the world cooperated in a secret rendition network that enabled the transfer of CIA terrorist suspects to secret detention sites. While governments in some states have not been punished for participating, others have incurred political costs, including electoral defeats. What explains variation in the political costs of participation in the post-9/11 extraordinary rendition program? I argue that left of center governments, particularly those in democracies, suffered greater political costs from being caught because of the perception that they are better at protecting civil liberties in the name of national security. I test the effect of party orientation on electoral defeat at the election following the revelation of participation in extraordinary rendition using a matched sample where the party in office at the time of participation remained the same. The analysis provides empirical support for my theoretical argument.

Modern and Stateless: A Case Study of the International, Racialised Modernity of the Peruvian Nikkei in Seiichi Higashide’s Adios to Tears

ABSTRACT This article discusses the process of Japanese emigration to Peru in the early-twentieth century, culminating in their extraordinary rendition from the same country at the hands of the United States government at the height of World War II, analyzing the processes through the lens of Seiichi Higashide’s 1981 testimonio Adios to Tears (Namida no Adiosu). It follows Higashide’s journey from Hokkaido, Japan to Ica, Peru, and finally, via rendition, to the United States, first to Crystal City internment camp in Texas before being ‘paroled’ as an ‘undocumented immigrant’ to Seabrook Farms, New Jersey to provide labour for a privately-held company. Higashide, along with many other Peruvian Nikkei of the same era, fell victim to a series of treaties, laws, and finally, global conflicts that ultimately rendered them stateless. Arguing that this history is the product of the fundamental irrationality of racializing global forces implicit in the notion of modernity, I suggest that its aftermaths continue to resonate today.

Kashmir Conflict and the Advent of Torture: An Overview

Modern states have built burgeoning detention facilities like immigration centers, prisons and police cells that engage in torture and other cruel, inhuman treatments. The law enforcement agencies engage in torture and other cruel, inhuman and degrading treatment or punishment in the name of counter- terrorism, security threats and soon. The state uses torture and makes it clear that enhanced interrogation techniques makes a person from kidnapping to extra-ordinary rendition, from citizen to unlawful enemy combatant and from human to terrorist. The valley of Kashmir faces torture and other cruel inhuman treatments since insurgency began in 1990’s, with violent uprising and have elicited terrorism. Methods like torture is used as a tool of counter- insurgency by Indian security forces. The government of India used all efforts to crush the movement of self- determination of Kashmir. The strong response from India violates the human rights and international humanitarian laws. The law enforcement agencies, army and para- military forces have engaged in reprisal attacks against civilians resulting in indiscriminate firing, search operations, gang-rapes and burning of houses in the valley. After 1990, the situation in the Kashmir valley deteriorated and Kashmir was declared a disturbed area and laws like Disturbed Area Act (DAA) 1990, Armed Forces Special Powers Act (AFSPA) 1990 and Public Safety Act (PSA) 1978 were imposed. The purpose of the paper is to examine the concept of Torture in Kashmir valley and bring to light the plight of the victims in the valley.

Law-less Silence: Extraordinary Rendition, the Law, and Silence in Edmund Clark’s Negative Publicity

Law-less Silence: Extraordinary Rendition, the Law, and Silence in Edmund Clark’s Negative Publicity

Dignity Denied: The Abu Zubaydah Case Study

Human dignity lays claim to multiple roles within the international political and legal order - the source or rationale of human rights, a goal of the UN Charter, the ‘ultimate value’ or ‘cornerstone’ of the international legal order, a right in itself and intimately interlinked with an array of other rights, with assessments of the impact of violations and the nature of reparation. The subjugation of human dignity is evident in much counter-terrorism practice in recent years, but epitomised by the case of rendition and torture victim Zayn al Abideen Mohammed al Hussein (Abu Zubaydah). By reference to diverse philosophical conceptions of dignity and its legal manifestations, this chapter explores the multiple dimensions of human dignity that were and are challenged in deep-rooted and wide-ranging ways by the extraordinary rendition and torture programme and on-going arbitrary detention at Guantanamo. These include the commodification of ‘high value detainees’, the centrality of dehumanisation, treating lives and liberty as dispensable, ‘civil death,’ and the link between the denial of autonomy, agency and the social dimensions of dignity. It considers in turn the role of reparation and accountability in the restoration of dignity. This extreme case invites us to reflect on the more pervasive neglect of human dignity in counter-terrorism practice and the long term implications of its demise in the name of human security.

«Malleus Maleficarum» сучасного суспільства: передумови і поширеність тортур у ХХІ столітті та політика протидії тортурам

«Malleus Maleficarum» сучасного суспільства: передумови і поширеність тортур у ХХІ столітті та політика протидії тортурам

Geheime Detentiecentra in Oost-Europa: de Aansprakelijkheid van Staten voor Medeplichtigheid bij Ernstige Mensenrechten-schendingen in de Strijd tegen Terrorisme (Secret Detention Sites in Eastern Europe: State Responsibility for Complicity in Serious Human Rights Violations in the War on Terror)

This chapter discusses to what extent Council of Europe Member States have been held responsible for their collaboration (i.e. by providing secret detention sites) with the CIA in the United States' extraordinary rendition program. To answer this question, we first discuss the background and organisation of the extraordinary rendition program in general and the secret detention sites on European soil. Second, we address several aspects of the case law of the European Court of Human Rights: the attribution of conduct in violation of articles 3 and 5 of the European Convention on Human Rights; the knowledge on the part of the Council of Europe Member States; the role and significance of diplomatic assurances; and, lastly, the distribution of the burden of proof by the Court.

Freedom of information legislation and the democratic oversight narrative

ABSTRACT Oversight of national security operations is often presented as vital to ensuring military and intelligence personnel of democratic states abide by the rule of law. Collectively, such portrayals place stock in what this paper conceptualizes as the democratic oversight narrative. In the US and the UK, freedom of information legislation is presented as a tool giving the democratic oversight narrative real-world form. This occurs, it is argued, because such legislation allows those (such as legislators and the media) responsible for national security oversight access to information about said operations in order to mediate between citizens and states. In recent years, documents containing implicatory information have been released by the US and the UK, but often only after prolonged legal cases and significant obstruction by both states. Drawing on documents pertaining to processes set in motion by the American Civil Liberties Union and the UK All-Party Parliamentary Group on Extraordinary Rendition focused on obtaining information about War on Terror era detainee abuse, this paper argues those engaged in oversight of US and UK national security operations are faced with unduly restrictive barriers and impediments when seeking the disclosure of potentially implicatory information that should, via oversight tools such as freedom of information processes, legitimately be released. These barriers and impediments arise, it is shown, because both states can counter oversight by drawing on an opposing set of tools to stop (or at least stall) the release of such information.

Extraordinary Renditions and State Secrets: A Human Rights Approach

One of the world’s main concerns over the past decades has been the phenomenon of terrorism. It is evident that terrorism must be eradicated, especially considering the huge threat it poses to the basic values of democratic societies. However, it must be kept in mind that arbitrary governments also represent a huge threat to these same values and, therefore, safeguards must exist to guarantee that state authorities act within the framework of law. Unfortunately, some governments misuse the ‘state secrets privilege’ argument, created to protect their right to confidentiality in national security affairs, to prevent their gross violations of human rights from being assessed by the judiciary, violating victims’ rights and promoting impunity. This is particularly true in cases involving so-called ‘extraordinary renditions’ used to fight terrorism. This article defends the premise that as much as the existence of secrecy is essential for the protection of every nation, no secrecy can serve as an excuse for governments to violate human rights and disregard the rule of law. In order to ensure that state secrets privilege is not used as a way to promote impunity for serious human rights violations, it is very important that mechanisms are implemented in order to have the claim of secrecy in national security related issues closely scrutinised by an impartial judicial organ. It is in the interest of democracy and justice that a fair balance is struck between the interests of national security and the protection of human rights.