07 Jun What Exactly is Legally Wrong with Renditions?
The Council of Europe issued a blistering report today denouncing the U.S. and certain European countries for cooperating in a “reprehensible network” of detaining suspected terrorists in CIA-run secret prisons.
I understand the legal arguments against renditions based on the Convention Against Torture. Plainly, countries cannot torture or send someone to a country that is likely to engage in torture. But suppose there is no torture or likelihood of torture? What exactly is wrong about apprehending someone and sending him to a third country for interrogation?
Here is a quote from the report:
While the states of the Old World have dealt with these threats primarily by means of existing institutions and legal systems, the United States appears to have made a fundamentally different choice: considering that neither conventional judicial instruments nor those established under the framework of the laws of war could effectively counter the new forms of international terrorism, it decided to develop new legal concepts.
This legal approach is utterly alien to the European tradition and sensibility, and is clearly contrary to the European Convention on Human Rights and the Universal Declaration of Human Rights.
The problem then, is not necessarily torture. It is really that individuals are being detained without being subject to their full panoply of procedural and individual liberty protections under the European Convention of Human Rights. This is really fundamentally different world view. Under this view, a country like the United States can either give a suspected terrorist the full protections of civilian criminal procedure protections or essentially treat them as a prisoner of war. There is no third box.
In another part of the report, the COE tries to explain this difference in worldview:
The United States’ formalistic and positivist approach shocks the legal sensibilities of Europeans, who are rather influenced by ‘teleological’ considerations. In other words, the European approach is to opt for an interpretation that affords maximum protection to the values on which the legal rule is based.
This is a fair description, I suppose, although I’m not sure all Europeans are as teleological as the Council of Europe. But maybe he’s right. I’m not sure what to do about this though, because it strikes me that we are going end up with two good faith interpretations of the law – positivist v. “teleological” with the teleological side always denouncing the other side as wrong for engaging in technical and formal interpretations of treaties and laws. The other side will just shrug and ignore them. And then what?
If the aim of international human rights law (I am engaging in teleological thinking here) is to provide full protection, as appropriate to the circumstances, why would it allow for a ‘third box’? Human rights law in some parts stops where international humanitarian law takes over, because the latter body provides the more appropriate form of protection, in the circumstances of an armed conflict. No such considerations apply where there is no other form of protection, so why reduce the guarantees of international law? Less theoretically speaking, I don’t see how the debate about extraordinary rendition could be regarded as the height of teleological thinking in human rights law. At issue here is a relatively simple interpretation of Article 2 (1) ICCPR (not of Article 1 ECHR, obviously, because the US are not bound by it, and because any assisting European states would do so largely in their own territory). On that basis, the reference in the COE report to differences between the legal cultures may not do the cause any favours, as it tends to portray both points of view as equally valid. This is, to say the least, an extraordinary thing for any party to a dispute to… Read more »
Julian: The ECHR is not a “world view.” It’s a treaty. And it has certain provisions with which signatory states are legally required to comply. According to the Report, and to the Venice Commission cited therein, nations that have assisted the U.S. renditions have thereby violated their treaty obbligations. I don’t know the ins and outs of this treaty, so I can’t sepak to whether this legal argument is correct. But if the signatory states have agreed that detainees should be treated in a certain way, then they should comply with those prescriptions, no? As for the U.S., of course the Report does not suggest that it has violated the ECHR. The reference to “the United States’ formalistic and positivist approach” refers to the U.S. interpretation of the CAT — in particular, the U.S.’s assertion that CAT Article 3 does not apply at all to transfers between two foreign nations, so that such transfers do not violate the treaty even if there is a likelihood that the detainee will be tortured. I think it is fair to say, as the Report does say, that such an interpretation would “shock[] the legal sensibilities” of anyone (such as Europeans) who “opt for… Read more »
Professor Lederman has hit the mark: thus this does not appear to be a struggle between ‘two good faith interpretations of the law,’ but rather between a good faith interpretation and a ‘bad faith’ hermeneutics in a Sartrian sense: ‘although bad faith perceives evidence, it resigns itself in advance to not being “fulfilled” by the evidence. In other words, it commits itself ahead of time to a “non-persuasive evidence” which it designates as nonpersuasive.’ The ‘evidence’ in this case being the legal language of the convention, while ‘pre-commitment’ takes the form of reliance on formalistic and positivistic methodology to interpret that language. [The quoted material is from Ronald Santoni’s analysis of Sartrian bad faith in Bad Faith, Good Faith, and Authenticity in Sartre’s Early Philosophy, 1995]