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Al-Liby: “Rendition to Justice” under Human Rights and Humanitarian Law

The U.S. government is reportedly holding Abu Anas al-Liby (Nazih Abdul-Hamed al-Ruqai) on a Navy ship following a military-led apprehension in Tripoli on October 5. The capture operation and al-Liby’s detention have been analyzed by legal experts from many angles: the bases for the operation under U.S. law have been covered here by Marty Lederman. Deborah Pearlstein adds to the debate by taking on public international law issues surrounding Libya’s state sovereignty and the United States’ right to self-defense. Beth Van Schaack reminds us of the U.S. domestic law authorities for “rendition to justice”: the male captus, bene detentus (wrongly captured, properly detained) doctrine, as well as that doctrine’s incarnation in international criminal law.

There is another important element in this story: the existence of an irreducible core of rights that the United States must respect in relation to al-Liby’s detention and transfer, no matter what legal framework applies.  As I describe below, the key obligations are these: the capturing state should not intentionally bypass any relevant formal procedures such as extradition or deportation; the host state’s consent should be sought; the transferring state must have a valid legal basis for apprehending the individual; the detainee may not be subjected to non-refoulement—transfer to a risk of torture or cruel, inhuman, or degrading treatment, persecution, enforced disappearance, or arbitrary deprivation of life; and individuals being handed over to third states have a right to challenge transfer in advance before an independent decision-maker. Individuals apprehended by a state that will retain custody of the detainee must present the detainee to a judge without delay. As I explain below, these principles suggest that al-Liby should be quickly transferred to the United States and brought under judicial oversight.

This core derives from human rights, refugee law, and humanitarian norms and has been articulated in a series of cases examining the procedural and substantive rights held by individuals facing forcible informal transfer—rendition. As I explore elsewhere, rendition is a term that is defined in many ways by what it is not: it is not extradition and it is not deportation, two formal means through which governments transfer individuals across international borders. International rendition is the transfer of an individual from the jurisdiction of one state to another without the benefit of any process—whether extradition, deportation, or more informal processes attendant upon end-of-hostilities transfers. Such renditions may be used by a country aiming to deliver an individual to another country or to an international court, or they may be used by a country that is itself seeking custody of an individual, as in the al-Liby case. There is continuing controversy over the legality of such renditions from the perspective of public international law (when is a rendition a violation of sovereignty? can a snatch-and-grab amount to self-defense?), but the absence of formal processes means that individuals subject to such transfers cannot avail themselves of the usual means to challenge their transfer. Thus, international bodies have had very limited opportunities to examine the protections due those facing informal transfer.

Institutions that have been presented with these issues fall into two categories: national and international criminal courts focusing on the question of whether irregularities in transfer divest them of jurisdiction to adjudicate, and human rights bodies examining the protections individuals facing transfer hold by virtue of being human. Each set of cases asks very different questions: the first concerns the remedy of loss of jurisdiction over an alleged international criminal; the second asserts limits on state actions imposed by the rights of the individual—not to be free of criminal jurisdiction, but to be free of abuse.  Several bodies of international law set out rules relevant to renditions in the context of counter-terrorism. As a general matter, international refugee law, international human rights law, and international humanitarian law apply extraterritorially and concurrently. International humanitarian law’s extraterritorial reach is uncontroversial, and although there have been debates over the circumstances in which international human rights treaties have extraterritorial effect, human rights bodies have found that such norms apply whenever states have effective control over territory or when they exercise effective control over an individual.  An individual who has been snatched by commandos and faces transfer is plainly within the control of the transferring state so the application of human rights law to such transfers should be less controversial than the general extension of such norms to territory outside the state.

The UN Human Rights Committee’s earliest jurisprudence in the 1980s concerning the extraterritorial reach of the ICCPR related to the abduction of individuals by officials of Uruguay in Argentina and Brazil. These abductions, followed by detention and mistreatment of the transferees on foreign and Uruguayan soil, were found to violate the Convention in numerous respects. The abductions themselves, which Uruguay sought to justify on security grounds, were found to constitute arbitrary arrest and detention. In the 1981 case of Sergio Euben Lopez Burgos v. Uruguay, the Human Rights Committee found the alleged consent of the host state irrelevant in assessing the violations: the Covenant’ jurisdictional article “does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it.”

Since those early cases, the rules set out by human rights bodies pertaining to transfers to a risk of grave abuse have been consistent and increasingly protective. The minimum standard, drawing on international human rights treaty law, international refugee law, and humanitarian principles, can be roughly summarized this way:

(1)    Formal procedures such as extradition or deportation should not be intentionally bypassed and host state consent should be sought.
(2)    The transferring state must have a valid legal basis for apprehending the individual.
(3)    Substantively, an individual may not be subjected to non-refoulement, which has been interpreted to include transfer to a risk of torture or cruel, inhuman, or degrading treatment; persecution; enforced disappearance; and arbitrary deprivation of life.
(4)    Procedurally, individuals facing handover have a right to challenge transfer in advance before an independent decision-maker; this challenge must encompass the ability to assert a fear of refoulement.
(5)    Individuals apprehended by a state that will retain custody of the detainee must present the detainee to a judge without delay.

While some of these standards have been set out in contexts where an individual is subjected to “rendition to justice,” many—especially those concerning refoulement—were designed for situations in which the transferring state is handing the fugitive over to another state. This means the range of procedural and substantive rights apply to handovers to third states, but their status in relation to “rendition to justice” is less clear. (It is also important to note that transfers in the context of international armed conflict often entail specific IHL transfer rules.)

In relation to “rendition to justice,” while some human rights bodies have rejected the practice, the European Court of Human Rights has accepted such informal transfers in the counter-terrorism context when they are carried out with the consent of the host state and in conformity with the transferring state’s domestic law. In the 2005 case of Öcalan v. Turkey, the Court examined the case of PKK leader Abdullah Öcalan, who was apprehended informally in Kenya and handed to Turkish officials, who then flew him to Turkey and placed him into criminal proceedings. The Court accepted as valid these acts of “cooperation” between Turkey and Kenya, and emphasized the importance of the host state’s consent in the operation: “An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned’s individual rights to security.” Thus, the traditional sovereignty issue of host state consent can take on a human rights hue. Despite the acceptance of the rendition itself, the ECHR found that Turkey violated Öcalan’s right to be brought promptly before a judge since he had been held for seven days without judicial oversight.

Existing jurisprudence and authoritative interpretations of human rights, humanitarian law, and refugee law thus do not answer all of the legal questions pertaining to the inter-state transfer of individuals suspected of terrorism. Some significant questions remain open to debate. Perhaps the most important surround cases where an individual is apprehended on foreign territory by a single state and brought back to that same state for a regular criminal proceeding. Are such “renditions to justice” lawful when the host state consents to the apprehension, even without a pre-transfer hearing? With respect to the transferring state, the ECHR suggests the answer may be yes, so long as the transferring state abides by the substantive protections concerning basis for arrest and brings the individual promptly before a judge. But what about the individual’s rights vis-à-vis the host state? The host state’s consent will contribute to relieving the transferring state of any wrongfulness for the apprehension and transfer under existing case law, but it is not clear whether this has an impact on its own human rights obligations. Under human rights law, a consenting host state may be liable for violating the suspect’s rights itself if the individual would normally have had the opportunity to avail himself of the protection of domestic law before expulsion. Thus, while the transferring state may be able to design a regime through which it would not directly violate the individual’s human rights, such careful planning may not alone ensure that the individual’s rights would not be violated during the transfer. To achieve an entirely rights-protecting transfer scheme, the transferring state must ensure that its actions do not amount to collusion with the host state in violation of the individual’s rights in that jurisdiction. Thus, the consent of the host state should be understood as necessary but not sufficient to protect the rights of the individual.

Applying these principles to the al-Liby case, the outcome is mixed. There was no extradition treaty between the United States and Libya, meaning that there were no formal procedures to bypass.  Al-Liby is subject to a valid indictment, giving the United States a solid basis for apprehension. It’s not clear whether Libya consented to the operation; if it did not, the human rights picture is murkier. So long as he is not held outside the regular U.S. legal system, al-Liby is presumably not at risk of refoulement (though a transfer to Guantánamo or Bagram would raise refoulement issues). Al-Liby’s detention on a ship, and his interrogation by the High-Value Detainee Interrogation Group without judicial oversight or legal assistance, will quickly run afoul of human rights law concerning due process, however, and if prolonged and under incommunicado circumstances, could amount to an enforced disappearance.  The United States should transfer al-Liby to the United States and bring him under judicial protection without delay.

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About the Author

is Professor of Clinical Law at New York University School of Law, where she is a Faculty Director of the Center for Human Rights and Global Justice and director of the Global Justice Clinic. Follow her on twitter @SatterthwaiteML.