Why rendition is legal
The advantage of extradition treaties is that they are mutually cooperative and based on mutual reciprocity. Generally, the extradition method is used for pretty serious offences such as terrorism and drug crimes. We should bear one thing in mind that for the extradition of a criminal an act should be an offence according to the penal law in both the countries between the requesting and requested state.
It is not for a political offence. However, since the last decade, some human rights organisations and international treaties have declared extradition as against the breach of human rights. Rendition is nothing but it is the transfer of a foreign criminal from one foreign state to another for interrogation and detention. Extradition is a type of rendition. Rendition is an umbrella term.
Extradition is a mere part of it. Rendition can also be seen as a request of handing over after extradition has taken place.
Rendition can also be seen as an act of handing over or rendering such as rendering any justice or any criminal person.
However, Extraordinary or irregular rendition is entirely a different concept from that of rendition. Extraordinary rendition is an illegal rendition that is done illegally without following any procedure of law. However, this practice has been criticised by many human rights authorities. According to English common law , rendition is nothing but the handling over a suspected criminal or surrender of an absconder or a fugitive from one state to another complying with all the necessary national and international procedural laws.
A common example of rendition is the extradition of a suspected criminal from one country to another to face trial in that country. It is one of the primary examples of lawful rendition.
Illegal or extraordinary rendition is the illegal transfer of a suspected criminal to its home country where the criminal is further harassed and tortured by the concerned authorities without any laws related to it.
It is also because the receiving states do not have proper procedural laws and regulations that can control or strictly prohibit torture and oppression. Since the s, there has been a remarkable increase in the cases of illegal rendition especially for terrorist suspects and foreign criminals.
This gives the USA an edge to torture and oppresses the foreign defendants by transferring them to the state where laws concerning torture and oppression do not apply.
However, the United Kingdom is aware of the grave illegal rendition cases that have happened over the years in the United States. Extradition comes into the picture when a person who commits a crime flees the state.
Any person charged with a federal crime can be moved from one state to another state without any extradition practice.
Article IV of Section 2, of the US Constitution , provides that the state to which the criminal has fled and charged with the crime must be removed from that state and must be transferred to the state which has jurisdiction of the crime. Extradition from one state to another state can only take place with the permission of the governor of that state.
In some cases, the extradition goes beyond the procedural formalities. But these cases are very rare. Extradition between two countries is also done in the same way. It is usually based on the treaty between the two countries, one who is requesting the criminal and the other in which the fugitive criminal is charged with the crime.
Suspects are detained and interrogated at U. In both instances, interrogation methods are employed that violate federal and internationally recognized standards.
Congress has acted at least twice to prohibit the federal government from transferring people to foreign countries when there are substantial grounds to believe they will be tortured. Please subscribe or login. Oxford Bibliographies Online is available by subscription and perpetual access to institutions.
For more information or to contact an Oxford Sales Representative click here. Not a member? Sign up for My OBO. Already a member? Publications Pages Publications Pages. Subscriber sign in You could not be signed in, please check and try again. Username Please enter your Username. Password Please enter your Password. Forgot password? Don't have an account? Link," New York Times , January 9, , at The federal district court dismissed El-Masri's claim without evaluating its merits, finding that the claim could not be fairly litigated without disclosure of sensitive information protected by the state secrets privilege.
El-Masri v. Tenet, F. The district court's ruling was affirmed by the Fourth Circuit Court of Appeals in , and the Supreme Court subsequently denied plaintiff's petition for writ of certiorari. United States, F. In , German public prosecutors issued arrest warrants for 13 CIA agents who were allegedly involved in El-Masri's rendition, but the Justice Ministry declined to request the agents' extradition from the United States.
In some instances, questions as to whether a State has consented to the rendition of a person located in its territory have been subject to controversy and investigation. The final report by the committee was issued in January Detention Sites Overseas: Background and Legal Issues , by [author name scrubbed] and [author name scrubbed].
In , the Department of Justice's Office of Legal Counsel issued an opinion that irregular renditions absent the consent of the State where the fugitives are seized would violate customary international law because they would be an invasion of sovereignty for one country to carry out law enforcement activities in another without that country's consent.
Legal Counsel Additionally, Article 2 4 of the U. Charter prohibits Member States from violating the sovereignty of another State. In , the Office of Legal Counsel constrained the opinion, though not on the grounds that such renditions are consistent with customary international law.
Legal Counsel finding that extraterritorial law enforcement activities authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2 4 of the United Nations Charter, as well as customary international law. Further, while upholding court jurisdiction over a Mexican national brought to the United States via rendition, despite opposition from the Mexican government, the Supreme Court nevertheless noted that such renditions were potentially "a violation of general international law principles.
Alvarez-Machain, U. In a related case twelve years later, however, the Court held that any such principle—at least as it related to the rights of the rendered individual—did not "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18 th century paradigms.
Alvarez-Machain, S. See, e. See Bassiouni, supra footnote 1, at discussing deportation and exclusion as an alternative to extradition.
Perhaps the most notable case of alleged rendition involved Maher Arar, a dual citizen of Canada and Syria. Arar filed suit in January against certain U. Arar was allegedly first detained by U. Kennedy International Airport for a connecting flight to Canada after previously flying from Tunisia. According to U.
Department of State, U. Views Concerning Syrian Release of Mr. On February 16, , the U. District Court for the Eastern District of New York dismissed Arar's civil case on a number of grounds, including that certain claims raised against U. Arar v. Ashcroft, F. The district court's dismissal was upheld by a three-judge panel of the Court of Appeals for the Second Circuit on June 30, A rehearing en banc was thereafter granted, and the appellate court affirmed the district court's dismissal of Arar's claims.
The Canadian government established a commission to investigate Canada's involvement in Arar's arrest and transfer to Syria. The final report of the Arar Commission, released in September , concluded that Arar had not been a security threat to Canada, but Canadian officials provided U. The rendition was committed with the consent of the Afghan government. Times , August 22, For a historical discussion of U. United States ex rel.
Neidecker, U. Fischer, U. Knauff v. Shaughnessy, U. United States, U. Arriving aliens who are deemed inadmissible may be subject to ''expedited removal,'' a more streamlined removal process than that applicable to aliens who have been admitted into the United States. Covert, U. See Valentine , U. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law.
In limited circumstances, the involuntary transfer of a U. Geren , U. In the case of Boumediene v. Bush , U. The Court's opinion did not address the extent to which other constitutional protections extended to Guantanamo detainees, and it suggested that noncitizens held by the United States in foreign territories where U. See id. Constitution, but concluding that the case before it "lack[ed] any precise historical parallel".
Notably, the Court did not overrule its decision in Johnson v. Eisentrager , U. Instead, the Court distinguished the two cases, and noted that unlike the petitioners in Eisentrager , the Guantanamo detainees denied they were enemy combatants and the government's control over post-WWII German territory was not nearly as complete as its control over Guantanamo.
Boumediene , S. Statement of Michael F. Affairs Comm. April 17, , Hearing, Extraordinary Rendition in U. Times , March 6, A3 quoting Attorney General Gonzales as stating that it is not U. This position was reiterated by President Bush in another press conference the following month. Jay S. Bybee, Asst. The memorandum primarily concerns authority to transfer persons in military custody to third countries, but also discusses U.
The memorandum did not expressly address other types of transfers, such as the transfer of persons in the custody of U. Among other things, the memorandum considered the applicability of the Convention against Torture and the Geneva Conventions to the military transfer of captured Al Qaeda and Taliban suspects. As discussed infra , these treaties might also be relevant to transfers by non-military U. Though U. See 18 U. GAOR Supp. It could be argued that despite its declaration that CAT was not self-executing and required implementing legislation to take effect, such legislation was actually unnecessary in the case of certain CAT provisions, including those related to the removal of persons to countries where they would likely face torture.
However, U. Gonzales, F. INS, F. CAT Article 2 2 declares that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
Treaty Doc. Serial Set. Convention Against Torture: Overview of U. Implementation Policy Concerning the Removal of Aliens , by [author name scrubbed]. See generally INS v. Stevic, U. This standard is in contrast to the lower standard for determining whether an alien is eligible for consideration for asylum based on a "well-founded fear of persecution" if transferred to a particular country.
To demonstrate a "well-founded" fear, an alien only needs to prove that the fear is reasonable, not that it is based on a clear probability of persecution.
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