Memorandum submitted by The Redress Trust
INTRODUCTION
These submissions are made in response to the
Foreign Affairs Committee's call on 28 March 2008 for written
submissions for the Committee's inquiry into the Foreign and Commonwealth
Office's Human Rights Annual Report 2007 (the Report).
The Redress Trust (REDRESS) is an international
non-governmental organisation with a mandate to assist torture
survivors to seek justice and other forms of reparation. We regularly
undertake cases on behalf of survivors and our special expertise
in matters relating to torture has been recognised by a variety
of national and international fora.
On 10 March 2008, REDRESS wrote to the Secretary
of State for Foreign Affairs following his oral statement to Parliament
on 21 February 2008. The letter was copied to the Prime Minster,
the Secretary of State for Justice, the Secretary of State for
Transport, the Attorney General of England and Wales, and the
Advocate General for Scotland. The Secretary of State's statement
is referred to in the section on "Rendition" in the
Report at page16, concerning two occasions in 2002 when a US plane
with a single detainee aboard refuelled at the US facility in
the British Indian Ocean Territory of Diego Garcia.
We have not received any reply from the Secretary
of State for Foreign Affairs; the Prime Minister's Office has
acknowledged receipt of our letter and has confirmed that its
contents have been noted; there has been no response from any
of the other recipients.
REDRESS' letter has not been published, and
the submissions below are based on the said letter to the Secretary
of State for Foreign Affairs.
SUMMARY OF
REDRESS' SUBMISSIONS
— The Government's response to the
US admission is inadequate.
— The UK must identify the two individuals
rendered and make humanitarian representations on their behalf.
— The UK has a positive obligation
to hold a public inquiry rather than simply to rely on more assurances.
— The UK is under a positive obligation
to review its laws and policies to ensure that renditions cannot
take place through or on UK territory.
— The laws, policies and practice regarding
prior authorization of State aircraft used in rendition are in
need of urgent review and reform.
— The use of civil aircraft to render
individuals is of equal concern and needs to be urgently addressed.
Government's response to the United States'
use of UK territory for rendition purposes is wholly inadequate.
The Government's response to the United States'
recent admission that on two separate occasions the CIA rendered
two individuals through UK territory in 2002[9]
is inadequate, and the Government should take further steps in
response to these particular revelations and more broadly.
To date, the Government has treated the US admission
as a "disappointment", and continues to limit its response
to the diplomatic arena relying on the US' own internal investigations
and "assurances". The Secretary of State has said that
a list of all flights on which a rendition has been alleged will
be prepared and sent "to the US to seek their specific assurances
that none of these flights were used for rendition purposes".[10]
This response fails completely to capture the significance of
what has occurred and merely serves to signal to the US Government
that no consequences attach to a violation of UK sovereignty.
It also ignores the rights of the two individuals rendered and
breaches the UK's positive obligations to conduct an independent
and impartial investigation into the use of its territory for
rendition, flowing from the UN Convention against Torture.
Since the US Government began its "extraordinary
rendition" programme, many more allegations have been made
that it has rendered detainees through UK territory (including
the UK mainland) as well as used Diego Garcia as a holding centre.[11]
While internal inquiries have been undertaken by the Government,
we believe that the Government must adequately respond to these
allegations in two ways: first, by holding an independent and
public inquiry into the US Government's use of UK territory for
rendition purposes; second, implementing the necessary law and
policy reforms to prevent the UK territory from being used for
renditions purposes in the future.
The UK must identify the two individuals rendered
and make humanitarian representations on their behalf.
The US Government's "extraordinary rendition"
programme is marked by the lack of any legal process. Documentation
on rendition reveals that individuals are very often tortured
or ill-treated in preparation for and during the flight as well
as being sent to locations where they face a high risk of further
torture or ill-treatment.
One of the individuals rendered through Diego
Garcia is now detained at Guantánamo Bay and therefore
continues to be denied his basic human rights and remains at risk
of torture and ill-treatment.[12]
The individual risks being brought before a Military Commission
for "trial" under procedures widely condemned as falling
short of fair trial standards. While it has been revealed that
the second individual rendered has been released to his or her
"home" country, no information is available as to whether
he or she was at risk of torture or ill-treatment on return in
contravention of the principle of non-refoulement, whether he
or she has been interrogated or detained since, or indeed any
information concerning the individual's present welfare.
No steps appear to have been taken to establish
the identities of the two individuals rendered. Instead, the Secretary
of State appears to have suggested that their lack of British
nationality or residency should lessen our concern for them, and
that nothing further needs to be done:
"The House will want to know what has become
of the two individuals in question. There is a limit to what I
can say, but I can tell the House the following. The US Government
has told us that neither of the men was a British national or
a British resident."[13]
While the Government cannot formally espouse
the two individuals' cases, the fact that their human rights were
violated on UK territory by a foreign state should in and of itself
be sufficient for it to take up their cases in a humanitarian
capacity. This is particularly so in light of the UK's repeated
willingness to make representations to foreign governments on
human rights grounds even when the case has no connection to the
UK.[14]
REDRESS notes that the Committee in a letter
of 28 February 2008 to the Secretary of State has already asked
to be given the identities of the two men admitted to have been
rendered through Diego Garcia, and for other specific information
relating to them and the rendition flights concerned. REDRESS
also notes that in his reply dated 18 March 2008, the Secretary
of State does not deal with these requests, but referred to "a
range of issues that officials in my Department are currently
working on" and that "officials are still analysing
the implications of the new information received from the US".
REDRESS respectfully agrees that the identity
of the two men should be disclosed, as well as the other information
relating to them and the rendition flights as requested by the
Committee, which request is consistent with the issues in paragraphs
9-12 above. Accordingly, REDRESS respectfully submits that in
any follow-up, the Committee should reiterate these requests arising
from the 21 February 2008 statement.
The UK has a positive obligation to hold a public
inquiry rather than simply to rely on more assurances.
As a matter of international law, where reasonable
grounds exist to believe that torture or ill-treatment may have
been committed within a State's jurisdiction,[15]
the State is under a positive obligation to conduct a prompt,
impartial, independent, effective and thorough investigation into
the allegations, even where no formal complaint has been made.[16]
Reliance on US assurances falls short of the
UK's international legal obligations and contributes towards a
culture of impunity which, as the European Court of Human Rights
has repeatedly emphasised, renders the absolute prohibition of
torture and cruel, inhuman or degrading treatment or punishment
"ineffective in practice."[17]
An independent public inquiry is therefore urgently required to
investigate the use of UK territory for rendition as well as a
holding site for detainees. Such an inquiry must be carried out
in a public manner in order to ensure that private individuals,
foreign states and non-governmental organisations can submit relevant
information to the investigating body and to ensure that the investigation
is carried out transparently.[18]
The UK is under a positive obligation to review
its laws and policies to ensure that renditions cannot take place
through or on UK territory.
The UK is also under a positive duty to ensure
that it has an effective legal and practical framework to protect
individuals under its jurisdiction from the risk of torture or
ill-treatment by state agents or third parties within its jurisdiction.[19]
An overhaul of the current laws and policies on aviation is urgently
required to ensure that a strong preventative framework is in
place.
The former Foreign Secretary, Margaret Beckett,
has already acknowledged the deficiencies in record keeping which
she conceded are "not all that marvellous, frankly"[20]
and may have contributed to failures to detect rendition flights
in the past. Moreover, the laws and procedures by which State
aircraft are authorised to enter UK territory appear to be inadequate
to determine whether a rendition is taking place or is going to
take place, as are the laws and practice governing the use of
civil aircraft involved in rendition. Accordingly, as part of
a public inquiry, an assessment of the adequacy of UK laws, policies
and practices to prevent the use of UK territory in renditions
is in order.
Prior authorisation of state aircraft
The Government must be capable of detecting
rendition flights. This requires it to become more stringent when
setting and enforcing disclosure requirements for foreign State
aircraft wishing to enter UK territory.[21]
Once the foreign State aircraft receives authorisation to enter,
the aircraft enjoys immunity and cannot be searched or seized.[22]
It is therefore vital that the Government acts pre-emptively prior
to authorisation.
The Secretary-General of the Council of Europe
found that the majority of European states fail to require the
foreign State to provide details of "the identities and status
of all persons on board, the purpose of the flight and its final
destination as well as the final destination of each passenger."[23]
The Parliamentary Assembly of the Council of Europe also highlighted
the particular problem posed by multilateral agreements which
provide for blanket overflight clearances which reduce the opportunity
to effectively detect renditions. For example, the Parliamentary
Assembly highlighted the terms of unpublished NATO agreements
of 4 October 2001, which provide for:
(1) "blanket overflight clearances for
the United States' and other Allies' aircraft for military flights
related to operations against terrorism; and
(2) blanket access to ports and airfields
on NATO territory, including for refuelling, for United States
and other Allies for operations against terrorism".[24]
In this respect, the UK's laws, policies and practices
on prior authorisation must be reviewed and reformed as appropriate
in order to ensure that the Government receives sufficient information
to independently assess whether any foreign State aircraft is
being used for rendition purposes.
The use of civil aircraft to render individuals
Both the European Parliament and the Council
of Europe have found that the US Government has presented State
aircraft as civil aircraft in order to avoid the requirements
of prior authorisation but to still benefit from the availability
of immunity from search and seizure.[25]
For example, the Council of Europe's Parliamentary Assembly found
that:
"The US Government's post-9/11 detainee
transfer operations would frequently make use of practices that
were previously considered "anomalies," such as: civilian
aircraft landing on state duty at military airfields; military
cargo planes registered under civilian operators; and civilian
operators; and civilian agents and contractors travelling on military
travel orders."[26]
Under the Convention on International and Civil
Aviation of 7 December 1944 (the "Chicago Convention")
to which 189 states are parties, no prior authorisation is needed
for unscheduled civil aircraft.[27]
Such flights can "make flights into or in transit non-stop
across its territory and to make stops for non-traffic purposes
without the necessity of obtaining prior permission and subject
to the right of the State flown over to require landing".[28]
Under Article 3 bis (b), the territorial State can require the
landing of the aircraft if there are "reasonable grounds
to conclude that it is being used for any purpose inconsistent
with the aims of this Convention" and under Article 16, "the
appropriate authorities of each of the contracting States shall
have the right, without reasonable delay, to search the aircraft
of the other contracting States on landing or departure, and to
inspect the certificates and other documents prescribed by this
Convention".
However, the definition of a State under the
Chicago Convention lends itself to uncertainty as to whether rendition
flights using civil aircraft would fall within the applicable
rules relating to State or civil aviation.[29]
While Article 3(b) of the Chicago Convention provides some direction
in setting out that, "Aircraft used in military, customs
and police services shall be deemed to be state aircraft",
uncertainty remains as to whether the list in Article 3(b) is
exclusive or merely exemplary of the types of aircraft excluded
from the scope of the Convention.[30]
In practice, a functional test is applied to determine whether
an aircraft falls within the definition of State aircraft and
although the status, ownership or control of the aircraft may
be taken into account these are not determinative in classifying
the aircraft concerned.[31]
The lack of certainty surrounding the proper classification of
commercial flights used by the US for rendition purposes means
that the UK authorities might not be exercising their rights of
search and seizure where rendition is suspected, even in those
cases where the US has not sought prior authorisation to enter
UK territory, for fear that the UK would be infringing on the
US' immunity—an immunity which doesn't apply to non-State
aircraft.
As such, this is an issue which the UK Government
must address with urgency both legally and in practice by making
clear to all States that all commercial aircraft will be presumed
to fall under the legal regime applicable to civil aircraft unless
prior authorisation is sought by the State concerned.
Moreover, the procedures for detecting the use
of civil aircraft for the purposes of rendition must be improved.
While the territorial State theoretically has a range of powers
available to intervene in a rendition flight, these powers are
made meaningless without any information to suggest that rendition
is taking place. Although controls over civil aircraft do exist,
they generally relate to customs, immigration and security regulations
and are therefore unlikely to expose rendition flights.[32]
SUMMARY
The Government should urgently:
Determine the identities of the two rendered
persons and their current situations, and place this information
in the public domain.
Make humanitarian representation in respect of
these individuals, as required.
Conduct a full, impartial and independent investigation
into the circumstances surrounding these two flights as well as
the additional allegations regarding the use of UK territory for
rendition and as a holding site for detainees.
Tighten its laws, policies and practices relating
to aviation to make sure that UK territory cannot be used to facilitate
extraordinary rendition.
ADDITIONAL COMMENT
REDRESS also respectfully agrees with the other
issues raised by the Committee in its letter of 28 February 2008
to the Secretary of State, which issues, it respectfully submitted,
are consistent with the instant submissions. REDRESS accordingly
puts itself at the disposal of the Committee to further assist
the Committee's instant Inquiry and/or any follow-up with the
Secretary of State in any way deemed appropriate.
22 April 2008
9 Central Intelligence Agency, "Director's Statement
on the Past Use of Diego Garcia" (21 February 2008). Back
10
Matthew Lee, "US Fears Backlash Over Terror Flights"
Associated Press (21 February 2008); Oral Statement by
Foreign Secretary David Miliband on Terrorist Suspects (Rendition)
(21 February 2008). Back
11
See, eg, Council of Europe, Parliamentary Assembly, "Alleged
Secret Detentions and Unlawful Inter-State Transfers Involving
Council of Europe Member States," (12 June 2006) [hereinafter
"Parliamentary Assembly Report 1"] at para. 289; "Secret
Detentions and Illegal Transfers of Detainees Involving Council
of Europe member states: second report," (11 June 2007) [hereinafter
"Parliamentary Assembly Report 2"] at para. 70; "Secretary
General's report under Article 52 ECHR on the question of secret
detention and transport of detainees suspected of terrorist acts,
notably by or at the instigation of foreign agencies," SG/Inf
(2006) 5 (28 February 2006) [hereinafter "Secretary-General
Report 1"]; "Secretary General's supplementary report
under Article 52 ECHR on thee question of secret detention and
transport of detainees suspected of terrorist acts, notably by
or at the instigation of foreign agencies," SG/Inf (2006)
13 (14 June 2006) [hereinafter "Secretary-General Report
2"]; European Parliament, "Report on the Alleged Use
of European Countries by the CIA for the Transportation and Illegal
Detention of Prisoners," (26 January 2007) at para. 78; Richard
Norton-Taylor, "Records show Diego Garcia link to alleged
torture flights," The Guardian (4 January 2007); Cage
Prisoners, "Fabricating Terrorism British Complicity in Renditions
and Torture" (29 March 2006); Amnesty International, "Below
the radar: Secret flights to torture and `disappearance'"
(5 April 2006). Back
12
See, "Situation of Detainees at Guantánamo Bay"
Commission on Human Rights UN Doc. E/CN.4/2006/120 (27 February
2006). Back
13
Oral Statement by the Foreign Secretary supra note 2. Back
14
For example, since 1990, the UK has made regular and repeated
representations to the Myanmar government concerning the prisoner
of conscience, Aung San Suu Kyi, and more recently to the Democratic
Republic of Congo concerning Marie-Thére"se Nlandu
and to the Ethiopian government concerning Kifle Tigneh Abate.
The UK government has also intervened in cases concerning the
prosecution of individuals in circumstances where their trials
are unfair by UK or international standards such as the intervention
in relation to Libya's imprisonment and trial of Bulgarian nurses
for deliberate infection of children with HIV or their potential
punishment disproportionate, such as the representations to the
Nigerian government concerning the proposed stoning to death of
Amina Lawal for adultery, and to Iran concerning its use of the
death penalty. Back
15
This obligation exists regardless of whether the allegations are
against the state itself or a foreign state or private individuals,
Calvelli and Ciglio v. Italy, ECtHR, no. 32967/96 (17 January
2002). Back
16
Bati and Others v. Turkey, ECtHR, no. 33097/96 and 57834/00
(3 June 2004) at para. 133. Back
17
Assenov v. Bulgaria, ECtHR No. 24670/94 ECtHR (28 September
1998) at para. 102; See also, Aksoy v. Turkey 23 EHRR 413
(1997) at para. 98. Back
18
See, Bati and Others v. Turkey supra note 8 at para. 137
(discussing the requirement that investigations be open to "public
scrutiny.") Back
19
A. v. United Kingdom, ECtHR 25599/94 (23 September 1998). Back
20
"Beckett Attacks Rendition Records," BBC News (24 February
2008). Back
21
Article 3(c) of the Convention on International and Civil Aviation
of 7 December 1944 provides that, "No state aircraft of a
contracting State shall fly over the territory of another State
or land thereon without authorization by special agreement or
otherwise." See also, James Crawford and Kylie Evans,
"Opinion: Extraordinary Rendition of Terrorist Suspects through
the United Kingdom," submitted to the All Party Parliamentary
Group (9 December 2005). Back
22
Parliamentary Assembly Report 2 supra note 3 at para. 102. Back
23
Council of Europe, "Follow-up to the Secretary General's
reports under Article 52 ECHR on the question of secret detention
and transport of detainees suspected of terrorist acts, notably
by or at the instigation of foreign agencies: Proposals made by
the Secretary General," SG(2006)01 (30 June 2006) at para.
12(d). Back
24
Id at para. 12(d). See also, European Parliament
supra note 3 at para. 206 (calling on "Calls on Member States
to take adequate measures to ensure that overflight clearances
for military and/or police aircraft should be granted only if
accompanied by guarantees that human rights will be respected
and monitored.") Back
25
For example, see Parliamentary Assembly Report 2 supra
note 3 at paras. 142-166 and para. 185; see also, European Parliament
supra note 3 at para. 46. Back
26
Parliamentary Assembly Report 2 supra note 3 at para. 78. Back
27
Under Article 6, scheduled flights require prior authorisation. Back
28
Article 5. Back
29
See, the International Civil Aviation Organisation, "Secretariat
Study on `Civil/State Aircraft'" (Montreal, 4-15 July 1994)
Attachment 1: LC/29-WP/2-1 at para. 1.1. [hereinafter "the
ICAO Study".] Back
30
id. at para. 5.1.1. (discussing the significance of the
word "deemed" in Article 3(b)). Back
31
See the ICAO Study id. and Centre for Human Rights
and Global Justice, "Enabling Torture: International Law
Applicable to State Participation in the Unlawful Activities of
Other States: Briefing Paper," NYU Law (February 2006) at
5. Back
32
Secretary-General's Report 2 supra note 3 at para. 45. Back
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